Allowed

Gorkharam v. State

Rajasthan HC7 May 2024CRLR/1334/2016

Case brief

AI extract

What is this about?

A revision petition challenging concurrent findings convicting the petitioner under Sections 332 and 353 IPC for obstructing police officers executing a warrant. The High Court found no proof of hurt, assault or criminal force, all prosecution witnesses being departmental, set aside both judgments and acquitted the petitioner.

What did the court decide?

Impugned judgments set aside; petitioner acquitted of Sections 332 and 353 IPC; bail bonds discharged with direction to furnish Section 437-A Cr.P.C. bond of Rs.50,000 plus surety.

Gorkharam Vs State — Criminal Trial and Appeal | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Revision Petition No. 1334/2016

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Gorkharam S/o Shri Kishnaram, Rohicha Kalla, Police Station Luni, Johdhpur

----Petitioner

Versus

State Of Rajasthan

----Respondent

For Petitioner(s)	: Mr. Mahesh Thanvi
For Respondent(s)	: Mr. Mukesh Trivedi,PP

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HON'BLE MR. JUSTICE MANOJ KUMAR GARG

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Judgment

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Order Reserved on : 07/05/2024 Date of pronouncement: 17/05/2024

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REPORTABLE

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By this revision, the petitioner-convict is challenging the judgment dated 15.07.2016 passed by the learned Additional Sessions Judge No.1, Jodhpur Metropolitan in Criminal appeal No. 6/2015 whereby, the appeal filed by the petitioner against the judgment dated 09.01.2015 passed by Metropolitan Magistrate, Jodhpur Metropolitan in Criminal Case No. 30/2009 convicting the petitioner for offence under Section 332 and 353 IPC was upheld, but granted him the benefit of probation under Section 4 of Probation of Offenders Act.

¶15

Succinctly stated, the facts apposite are that on 21.11.2008, the complainant Shesha Ram lodged a written report (Ex.P/6) at Police Station Basni, Jodhpur stating therein that on 20.11.2008, he alongwith Pukhraj, on the directions of SHO, went for service of standing warrant on Sukhdev at Sangariya Phanta. When they

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reached Sangariya Phanta, they saw accused Sukhdev sitting on a tractor. When they apprehended Sukhdev, Kalu Ram came there armed with Dhariya and assualted Pukhraj on his back with Dhariya. At that time, another person who came with Kalu Ram caught hold of the complainant from back and freed Sukhdev. After freeing, Gorkha Ram came on a motor cycle and took Sukhdev with him.

¶20

On the basis of the written report, FIR No. 342/2008 was registered against the accused persons including the petitioner for offence under Sections 4/25 of Arms Act and 332, 353 IPC. After investigation, police submitted chargesheet against the accused persons for aforesaid offences. The learned trial court thereafter, framed charges against the petitioner for offence under Section 332, 353 IPC. The accused petitioner denied the charges. Upon denial to all the charges, the learned trial Court put them on trial.

¶21

The prosecution in support of charges, examined nine witnesses. Besides ocular evidence, various documents were produced by the prosecution, which were exhibited. In defence, accused-appellant produced police statement of Bishan Singh Ex.D/1, Dalpat Singh Ex.D/2, Pukhraj Ex.D/3, Vikram Singh, Ex.D/ 4.

¶22

After conclusion of the evidence, learned trial Court heard final arguments and convicted the petitioner for the offence under Sections 332 IPC and sentenced him to undergo one year simple imprisonment alongwith fine of Rs.2000/- and for offence under Section 353 IPC, six months simple imprisonmnt and Rs.1000/fine.

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Feeling aggrieved, the petitioner preferred an appeal before the learned Additional Sessions Judge No.1, Jodhpur Metropolitan being Criminal Appeal No. 6/2015. The learned appellate court upheld the conviction of the petitioner for offence under Section 332 and 353 IPC but granted him benefit of probation under Section 4 of Probation of Offenders Act.

¶27

Learned counsel for the petitioner vehemently argued that the petitioner has falsely been implicated in this case. It is argued that the prosecution has failed to prove the offence punishable under Sections 332 and 353 IPC against the petitioner inasmuch as the prosecution ought to have proved that the accused had prevented or deterred any public servant from lawful discharge of his duty by use of assault or criminal force. It is argued that no independent witnesses were examined by the prosecution and only departmental and interested witnesses were produced and examined and as such their testimony cannot be said to be trustworthy and cannot be relied upon. Even in their statements, there are material infirmities and contradictions making the entire prosecution case doubtful. It is argued that the allegation against the petitioner is that he deterred the complainant and another police personnel from executing the standing warrant issued against the accused Sukhdev on 21.11.2008 whereas, the standing warrant was issued by the competent court in the year 2002 but later on, said accused Sukhdev had already been granted bail in the year 2004 itself. Therefore there was no occasion/reason for the police personnel to execute the alleged

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standing warrant in the first instance. It is further argued that from the statements of PW/5 Jeevan Singh and PW/7 Kesa Ram, who was the investigating officer, it is clear that no specific allegation has been made with regard to use of criminal force or assault against the complainant Shesha Ram or Pukhraj. Thus, it is argued that the prosecution has failed to explain as to what influence or force was used by the petitioner so as to prove its case against the petitioner beyond reasonable doubt. Therefore, both the courts below have erred in convicting the petitioner for offence under Section 332 and 353 IPC and same are liable to be quashed and set aside.

¶32

Learned Public Prosecutor appearing on behalf of the respondent-State vehemently opposed the prayer made by learned counsel for the petitioner and submitted that there is no reason to disbelieve the prosecution evidence and learned Trial Court has rightly convicted and sentenced the accused-petitioner. He prayed that the impugned judgment and order passed by the Courts below may be sustained and sentence awarded to the accused-petitioner by the Court below be maintained by this Court.

¶33

I have given my thoughtful consideration to the arguments advanced by learned counsel for the petitioner, learned Public Prosecutor, and meticulously examined the impugned judgment alongwith material available on record.

¶34

In order to reach a logical conclusion as to whether the petitioner is guilty of offence under Sections 332 and 353 IPC, it will be apt to consider and analyze the necessary ingredients of

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both the offences. Firstly, Section 332 IPC is reproduced hereinbelow :-

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“ 332. Voluntarily causing hurt to deter public servant from his duty - Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

¶40

Thus, from the bare reading of aforesaid Section, it is evident that the prosecution has to prove that the accused had caused voluntary hurt to deter a public servant from carrying out his duty. Hurt is defined in Section 319 IPC which reads as under :-

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“319. Hurt- Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.”

¶42

So far as Section 353 IPC is concerned, it deals with an offence of assault or use of criminal force to deter a public servant from discharging his official duties. Section 353 of IPC reads as under :-

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“353. Assault or criminal force to deter public servant from discharge of his duty .—Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public

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servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

¶48

The above Section categorically provides that in order to attract the offence it is the duty of the prosecution to prove that there was assault or use of criminal force restraining public servant from performing his official duties or causing any act with intent to prevent or deter him from discharging his duty. Therefore, it is evident that to make out a case under Section 353 of IPC, the prosecution must meet essential requirements that a public servant must be assaulted or subjected to criminal force when he was carrying out his responsibilities; or with the goal of preventing or discouraging him from doing his duties.

¶49

To establish as to whether the appellant has assaulted the complainant or used any criminal force upon him, it is necessary to examine the definition of ‘force’, ‘criminal force’ and ‘assault’, which are defined in Sections 349, 350 and 351 of IPC, which are as under:-

¶50

Section 349: Force — A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other’s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other’s sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or

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cessation of motion in one of the three ways hereinafter described:

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First. —By his own bodily power. Secondly. —By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person. Thirdly .—By inducing any animal to move, to change its motion, or to cease to move.

¶56

A reading of above Section makes it clear that a person is said to use force in any of the three methods mentioned above. The exertion of energy or power that causes a movement or change in the external environment is known as force. The term “force” as defined in this Section refers to force exerted by a person on another human.

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Section 350: Criminal force —Whoever intentionally

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uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

¶59

From perusal of the above section, it is clear that the force that has been specified in Section 349 changes into a criminal force when the essentials of Section 350 are satisfied. The essentials of Section 350 are intentional/deliberate use of force against any one; without consent, when the claimed assault involves illegal conduct and the force has to be utilized in order to conduct an offence or to cause hurt or fear to another person.

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Section 351: Assault — Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

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Explanation.—Mere words do not amount to an assault.

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But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.”

¶66

In order to ascertain legality and propriety of the findings and conclusion of the learned Courts below in the light of above legal provisions, it is necessary to re-appreciate the evidence adduced by the prosecution.

¶67

PW/1 Suja Ram and PW/2 Bhanwar lal both were working on the post of Constable and Head Constable respectively, at Police Station Basni at the relevant time and they have adduced their evidence with regard to arrest of accused persons and preparing naksha mauka etc.

¶68

PW/3 Bishan Singh was also working as Constable at Police Chowki Sangaria P.S. Basni. He has stated that when he reached the place of occurrence, he saw two persons of Luni police station were indulged in fighting with two other persons namely, Sukh ram and Kalu Ram. In his latter part of his statement in chief, he stated that Gorkha Ram took Sukhdev alongwith him. However, in his cross-examination, he has specifically mentioned that Gorkha Ram and Sukdhev fled from the scene by running. The statement of said witness PW/3 Bishan Singh is quoted hereinbelow :-

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“eSa ekSds ij igqapk rc /kkfj;k dkywjke ds ikl FkkA Fkkus x;s rc /kkfj;k fdlds ikl Fkk] eq>s irk ughaA /kkfj;k dh dqy yEckbZ fdruh Fkh] irk ughA lq[kjke ls ekSds ij esjh dksbZ ckrphr ugha gqbZA fdlh ds pksV yxh gqbZ eSaus ugha ns[khA lq[kjke ,oa xksj[kkjke ekSds ls iSny Hkkx x;s Fks] tc eSa ekSds ij igqapkA ”

¶73

PW/4 Dalpat Singh is also a department witness working as Constable and posted at Police lines. In his statement, he has mentioned that he alongwith Gorkha Ram departed for police lines but Gorkha did not reach the police lines. However, he has categorically mentioned that he himself was absent from duty when the C.O. came for inspection and his absence was marked. So far as the implication of petitioner Gorkha Ram is concerned, he is a hearsay witness inasmuch as he has mentioned that he came to know from someone that Gorkha Ram had gone to Basni halka. The relevant part of statement of PW/4 Dalpat Singh is quoted hereinbelow :-

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“fnukad 20-11-08 o 21-11-08 dh njfe;kuh jkr D.O. pSfdax vf/kdkjh us crk;k fd lqcg ,d gSM dkWLVscy o ,d dkWLVscy dks iqfyl ykbZu M~;wVh esa vkuk gSA rc lqcg eSa o xksj[kjke F.C. vius&vius lk/ku ls iqfyl ykbZu ds fy, jokuk gq,] eSa iqfyl ykbZu x;k ysfdu F.C. xksj[kjke iqfyl ykbZu ugha igqapk] xksj[kjke ml njfe;ku dgk¡ x;k] eq>s irk ughaA ckn eSa irk pyk fd xksj[kjke ckluh Fkkus gYds esa x;k FkkA ckn M~;wVh iqfyl ykbZu ls okil vkus ij irk pyk fd F.C. xksj[kjke us P.S. ckluh {ks= esa fdlh dkLVscy ds lkFk ekjihV dhA ;g irk djus ds fy, eSa iqfyl ykbZu x;k] brus eSa C.O. lkgc us esjh xSjgktjh yxk nhA-------------------------- eSa ;g ugh crk ldrk gWw fd C.O. lkgc us xksj[kjke ds xSjgktjh dSls yxk nh] C.O. lkgc us esjh Loa;e dh xSj gktjh yxk nh FkhA”

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PW/5 Jeevan Singh is another department witness who was on duty at S.B.I court premises at the relevant time. In his statement, he has mentioned that Gorkha Ram had torn page no.38 of duty register and replaced it with another paper and put his signatures. However, in his cross-examination, he has stated that there was some overwriting done at page no.40 but he cannot say as to who had done the overwriting.

¶79

PW/6 Shesha Ram who was working on the post of Constable at Police Station Luni at the relevant time is the person who was entrusted with the execution of standing warrant upon Sukhdev. He has specifically alleged that when they had caught hold of Sukhdev, at that time, Kalu Ram asked Gorkha Ram to hold him tightly. However, in the later part of his statement, he mentioned that one person came on motor cycle and drove Sukhdev with him. The relevant part of his statement is quoted hereinbelow :-

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“dkywjke ihNs dh rjQ ls gkFk esa /kkfj;k fy, gq, nkSM+rk gqvk vk;k o vkrs gh dkaLVscy iq[kjkt ds /kkfj;s dh mYVs fgLls dh ihB ij ekjhA brus es ihNs ls ,d O;fDr gkFk es ykBh fy, vk;k ftlus esjs ihB ij pksV ekjhA vkSj eq>s ihNs ls idM+ fy;kA rks dkyqjke us esjs ls o iq[kjkt ls LFkk;h okajVh lq[knso dks NqM+kus dh dksf”k”k dh rc dkywjke us dgk fd xksj[kkjke] bldks idM+ dj j[kA fQj lq[knso dks esjs ls o iq[kjkt ls NqM+k fy;kA fQj eSa o iq[kjkt lq[knso ds ihNs Hkkxus yxs rks dkywjke us iq[kjkt ds ihB ij mYVs /kkfj;s dh ,d vkSj pksV ekjhA brus eSa ,d O;fDr eksVj lk;dy ysdj ge nksuksa nkSM+rs gq, ds ikl ls vkxs fudyk o okajVh lq[knso dks eksVj lk;dy ij cSBkdj ys x,A

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So far as the fact with regard to existence of the standing warrant, this witness in his cross-examination has mentioned in the following terms :-

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…. LFkkbZ okjUV Fkkus esa dc vk;k] eSa vkt ugha crk ldrk gwWA eq>s LFkkbZ okjUV rkfey gsrq dc feyk vkt ;kn ugha gSA ;g tkjh okjUV ftldh rkfey esa eSax;k og okjUV ml frfFk dks izHkkoh Fkk] ;k ugha] vkt eq>s irk ugha gSA mDr LFkk;h okjUVh dh tekur fnukad 27-4-04 dks pqdh Fkh bl ckcr~ esjh tkudkjh esa ugha gSA ----------------------------------- ?kVukLFky ds ikl vkSj Hkh edku gSA okjUVh lq[knso ds /kksrh&pksyk iguk gqvk FkkA ekSdk fufj{k.k fdl rkjh[k dks fdl le; djk;k Fkk] vkt ;kn ugha gSA ?kVukLFkky ij gYyk lqudj dkQh yksx vk x, Fks ysfdu gekjs ikl ugha vk, FksA okjUVh ekSds ls Hkkx x;k FkkA”

¶86

From the reading of statement of aforesaid witness, one thing which emerges is that all the prosecution witnesses are departmental witnesses whereas, this witness has categorically mentioned that there were many houses in the neighbourhood.

¶87

PW/7 Kesa Ram was the Investigating officer who was working on the post of ASI at the relevant time. In his statement, he stated that he had arrested the petitioner Gorkha Ram from the police lines next day but he has specifically mentioned in his cross-examination that he had not committed an assault or criminal force.

¶88

PW/8 Vikram is another department witness working as police personnel and posted at Police lines. He has specifically mentioned that petitioner Gorkha Ram was arrested from the police lines.

¶89

PW/9 Pukhraj was working on the post of Constable and was entrusted with the duty of executing the standing warrant upon accused Sukhdev. In his statement, this witness has mentioned that while they had caught hold of Sukhdev at that time, petitioner Gorkha Ram assaulted Shesha Ram with lathi whereas, no assault or injury has been assigned to the petitioner by other

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witnesses. The relevant part of statement of this witness reads as under :-

¶94

“fnŒ 21-11-08 dks eSa PS yw.kh esa dkfu- ds in ij dk;Zjr FkkA bl fnu eSa o “ks’kkjke LFkkbZ okjaV lq[knso dh ryk”k djrs gq, lksukeq[kh uxj] lkaxfj;k QkaVk x;s FksA tgka LFkkbZ okjaVh lq[knso ,d edku ds ckgj VªsDVj ij cSBk fn[kkbZ fn;kA ftl ij geus lq[knso dks LFkk;h okajV fn[kk;k blds ckn nfLr;kc dj ge Fkkus ds fy;s jokuk gq,A rHkh xksj[kkjke o dkywjke ihNs ls vk;s dkywjke us esjs ihB ij /kkfj;s dh pksVs ekjh o xksj[kkjke us ydM+h ls “ks’kkjke ds pksVs ekjhA dkywjke dks eSa igys ls ugha tkurk Fkk og lq[knso dk firk gS ;g eq>s ckn esa irk pykA mDr nksuksa eqyfteku us feydj lq[knso dks NqM+ok fn;k fQj xksj[kkjke lq[knso dks eksVjlkbZfdy ij fcBkdj Hkkx x;kA”

¶95

Here it is relevant to mention that these witnesses PW/6 Shesha Ram and PW/9 Pukhraj have mentioned that the petitioner drove accused Sukhdev on motorcycle whereas, PW/3 Bishan Singh who is also an eye witness mentioned that Gorkha Ram and Sukhdev ran from the spot on foot.

¶96

By perusing the entire evidence and material on record, it appears that no force or assault or hurt was caused by the petitioner to commit the offence punishable under Section 332 and 353 IPC. The ingredients of offence punishable under Section 332 and 353 IPC are missing and the prosecution has not been able to prove its case beyond reasonable doubt.

¶97

Hon’ble Supreme Court in the case of Manik Taneja Vs. State of Karnata reported in (2015) 2 SC 121 while interpreting Section 353 IPC has observed as under :-

¶98

“12. A reading of the above provision shows that the essential ingredients of the offence under Section 353 IPC are that the person accused of the offence should

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have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent the second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, that the ingredients of the offence under Section 353 IPC are not made out.”

¶103

Thus, the working of Section 353 IPC makes it clear that assault or use of criminal force to a public servant while he was doing his duty as such is a necessary ingredient of that offence. What is contemplated under Section 353 IPC is not merely use of force but use of criminal force to any person mentioned herein. A mere obstruction or resistance unaccompanied by criminal force or assault will not constitute an offence under Section 353 IPC.

¶104

So far as offence under Section 332 IPC is concerned, the prosecution must prove that the accused has caused voluntary hurt to deter a public servant from carrying out his duty. The accused is stated to have caused willful hurt to public servants whereas the Investigating officer PW/7 Kesa Ram has specifically stated that petitioner did not cause any injury/hurt to anyone. There is no proof of the injuries/hurt, if any, assigned to the petitioner, by producing any independent witness despite the fact that at the scene of occurrence, many houses were present. The scuffle took place for quite some time, till the back up police

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personnel came from the nearby police station. However, the prosecution has not adduced a sizngle independent witness so as to fortify their case. All their witnesses are departmental and police personnel witnesses.

¶109

Hon’ble Tripura High Court in the case of Prabhat Debbarma Vs. State of Tripura reported in 2014 Supreme (Tri) 255 while interpreting the offence of Section 332 IPC has acquitted the accused petitioners with the following observations :-

¶110

“6. As far as section 332 of the IPC is concerned, the prosecution must prove that the accused has caused voluntary hurt to deter a public servant from carrying out his duty. The two public servants whom the accused is stated to have caused willful hurt are PW5, Rabindra Dhar, and Biplab Modak. From the record, I find that Biplab Modak was not even examined. Rabindra Dhar states that his duty hour was over and he was waiting for Biplab Modak when the occurrence took place and the accused tried to escape. As already held by me above, there is nothing to show that the accused was arrested. So, why would he escape? Assuming that some scuffling did take place, there is nothing on record to show that PW-5 or Biplab Modak was doing some official duty when the alleged scuffle took place. There is no proof of the injuries, if any, sustained by PW-5 or Biplab Modak. No medical certificates in this regard have been produced. In this view of the matter, this offence is also not proved.

¶111

Therefore, I have no hesitation in allowing the revision petition. The judgments of both the Courts are set aside and the accused is acquitted. His bail bonds are discharged.”

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The question of applying Section 332 IPC will come into play only after it is proved that the accused had voluntarily caused hurt to deter a public servant. However, in the present case, the prosecution has failed to prove its case that the petitioner had caused voluntary hurt to deter a public servant from carrying out his duty by cogent evidence.

¶116

The sum and substance of the above reasonings go to show that the prosecution has failed to establish that there was assault or use of criminal force by the petitioner and such assault or use of criminal force made on the complainant while he was acting in execution of his official duty. At the cost of repetition, it is reiterated here that all the witnesses produced by the prosecution were departmental witnesses and not the independent witnesses and hence, their testimony is doubtful and cannot be relied upon.

¶117

In view of foregoing discussion, the revision petition is allowed. The impugned judgment dated 15.07.2016 passed by the learned Additional Sessions Judge No.1, Jodhpur Metropolitan in Criminal appeal No. 6/2015 so also judgment dated 09.01.2015 passed by Metropolitan Magistrate, Jodhpur Metropolitan in Criminal Case No. 30/2009 convicting the petitioner for offence under Section 332 and 353 IPC are set aside and the accusedpetitioner is acquitted of the offences charged against him. The petitioner is on bail, therefore, his bail bonds are discharged.

¶118

Keeping in view, however, the provisions of Section 437-A Cr.P.C. the accused petitioner is directed to forthwith furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount before the learned trial court within a period of one month, which shall be effective for a period of six months to the

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effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the petitioner, on receipt of notice thereof, shall appear before Hon’ble Supreme Court.

¶122

Record of the trial court be sent back forthwith.

¶123

(MANOJ KUMAR GARG),J

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223-BJSH/-

Gorkharam v. State

Case brief

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Gorkharam v. State

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