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2017 Supreme(Mad) 3934

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
A.D.JAGADISH CHANDIRA, J.
Sekar – Appellant
Vs
State, rep. by Inspector of Police Tiruvonam – Respondent
Crl.R.C.(MD). No.877 of 2008
Decided on : 21-11-2017

Advocates:
Advocate Appeared:
For the Petitioner: Mr.P.Andiraj
For the Respondent: Mr.C.Ramesh Additional Public Prosecutor

Headnote:

Code of Criminal Procedure, 1973 – Section 255 – Penal Code, 1860 – Sections 353, 294 – Order of Acquittal – Revision petitioner was tried by the learned District Munsif-cum-Judicial Magistrate, Orthanadu, Tanjore District, in C.C., for the offences punishable under Sections 294-B and 353 I.P.C. – Trial Court by Judgment, dated 04.12.2007, had found the petitioner not guilty for the offence under Section 294-B I.P.C., and accordingly, acquitted him under Section 255(i) Cr.P.C., from the said charge, however, found the petitioner guilty for the offence under Section 353 I.P.C., and convicted him to undergo one year rigorous imprisonment. – Challenging the same, the petitioner/accused had preferred an appeal in C.A., before the learned Additional District Sessions Judge and E.C.Special Judge, Tanjore District, and the Appellate Court, by Judgment confirmed the conviction, however, set aside the sentence and imposed a fine of Rs.10,000/- , in default, to undergo two months simple imprisonment. – Against the said Judgment, the revision has been filed by the petitioner/accused. – Held, Section 353 of the Indian Penal Code, the ingredients of assault or use of criminal force while the public servant is doing his duty as such is necessary. – In the decision Chandrika sao v. State of Bihar AIR 1967 SC 170, the Supreme court has laid down that mere use of force, however is not enough to bring an Act within the terms of S.353, IPC. – It has further to be shown that force was used intentionally to any person without that persons consent in order to commit an offence or with the intention or with the knowledge that the use of force will cause injury, fear or annoyance to the person against whom the force is used. – When no criminal force much less force has been used on the de facto complainant, the Courts below erred in convicting the petitioner/accused for the offence under Section 353 I.P.C., thereby the Judgments of the Courts below are liable to be set aside. – Criminal Revision Allowed

ORDER :

The revision petitioner was tried by the learned District Munsif-cum-Judicial Magistrate, Orthanadu, Tanjore District, in C.C.No.27 of 2007, for the offences punishable under Sections 294-B and 353 I.P.C. The Trial Court by Judgment, dated 04.12.2007, had found the petitioner not guilty for the offence under Section 294-B I.P.C., and accordingly, acquitted him under Section 255(i) Cr.P.C., from the said charge, however, found the petitioner guilty for the offence under Section 353 I.P.C., and convicted him to undergo one year rigorous imprisonment. Challenging the same, the petitioner/accused had preferred an appeal in C.A.No.118 of 2007, before the learned Additional District Sessions Judge and E.C.Special Judge, Tanjore District, and the Appellate Court, by Judgment dated 08.05.2008, confirmed the conviction, however, set aside the sentence and imposed a fine of Rs.10,000/- , in default, to undergo two months simple imprisonment. Against the said Judgment, the revision has been filed by the petitioner/accused.

2. The case of the prosecution is that on 12.01.2006, at about 05.00 p.m., when P.W.1/Sub-Inspector, Thiruvonam Police Station, was on duty at the Police Station, the petitioner/accused came to duty in a drunken stage and when P.W.1 questioned the petitioner/accused, he quarreled and abused P.W.1 in filthy language in the presence of P.Ws.2 to 5, who are none other than the Head Constables and Para Duty Constable. Immediately, P.W.1 informed the same to P.W.6/Inspector of Police. Thereafter, on the next day i.e., 13.01.2006, at about 06.00 p.m., the petitioner/accused came to the Police Station and abused P.W.1 in filthy language in the presence of P.Ws.3 and 4/Para Duty Constable and Head Constable and thereby, the petitioner/accused was charged for the offence punishable under Sections 294-B and 353 I.P.C. The petitioner/accused had denied the charges framed as against him and trial was conducted and on the side of the prosecution, six witnesses were examined as P.Ws.1 to 6 and three documents were marked as Exs.P1 to P3. After completion of the trial and after examining the oral and documentary evidence, the Trial Court, by Judgment, dated 04.12.2007, found the petitioner/accused not guilty for the offence punishable under Section 294- B I.P.C., and acquitted him from the said charge by giving benefit of doubt, however, found the petitioner/accused guilty for the offence under Section 353 I.P.C., and convicted and sentenced him for the said offence as stated above and the period during which, the petitioner/accused was in remand was directed to be set off.

3. Challenging the conviction and sentence imposed by the Trial Court, the petitioner/accused preferred an appeal in C.A.No.118 of 2007, before the learned Additional District Sessions Judge and E.C.Special Judge, Tanjore District and the Appellate Court, after hearing both sides and carefully perusing the entire materials placed on record, by Judgment dated 08.05.2008, confirmed the conviction, however set aside the sentence imposed by the Trial Court and imposed a fine as stated above. Challenging the same, the present revision has been preferred by the petitioner/accused.

4. The learned counsel appearing for the petitioner/accused submitted that the Court below had erred in relying upon the prosecution evidence, which is inadequate and suffers from serious infirmities and thereby, the impugned Judgment is inconsistent and liable to be set aside.

5. Further, the learned counsel for the petitioner/accused submitted that the case on hand is foisted against the petitioner/accused due to enmity in the Department and P.Ws.1 to 5, who are official and interested witnesses and who are inimical towards the petitioner/accused, have deposed against the petitioner/accused. It was the further contention of the learned counsel for the petitioner/accused that the evidence of the witnesses do not corroborate with each other and there are material contradictions in the evide

























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