Mere skirmish without the intention to obstruct official duty is not sufficient to establish guilt under Section 353 IPC.

ORDER

A mere skirmish that has happened all on a sudden between a public servant with any third person cannot be brought under the purview of Section 353 IPC, unless carries the vital ingredient which would bring home the offence under that Section. It should be in connection with the discharge of any functions of a public servant, either by interference or with the intention to prevent or deter that person from discharging his functions. It should be aimed primarily either to deter or prevent or to cause obstruction in any manner in the discharge of duties vested with a public servant. Otherwise, the offence, if any, committed would fall under other provisions of the Indian Penal Code and may not be sufficient to attract the offence punishable under Section 353 IPC.

2. In the instant case, accused No. 1 while serving as a servant in KSRTC (General Controlling Inspector, Aluva Depot) had the occasion to enter into the KSRTC bus, wherein the defacto complainant was the conductor. Two other person also entered into the said bus from Eramalloor claiming that they are the workers under the KSRTC and are eligible for concession. Without noticing and knowing that accused No.1 is also entitled to such concession, the defacto complainant had drawn a ticket for him for an amount of Rs.17/- (the ticket fare). But, it was not tendered by accused No.1 and it has resulted in skirmish and ultimately lead to a scuffle by which the conductor received some blows on his nose besides some other injuries. It is the allegation of the prosecution that all these three persons joined together and attacked the defacto complainant. Specific overt act was also mentioned.

3. Both the trial court and the First Appellate Court found that accused No. 1 is guilty of the offence punishable under Section 353 IPC and convicted thereunder and sentenced to undergo six months simple imprisonment concurrently, against which the accused No.1 came up.

4. Two material defects were brought to the notice of this Court by the learned Senior Counsel appearing for the petitioner, Sri. P Vijaya Bhanu, that there is no disclosure of the identity of any of the persons involved in the crime in the FIS recorded, which was exhibited as Ext.P1. Even there is no whisper pertaining to their identity as the staff attached to KSRTC in the FIS. The FIS says that three persons attacked the victim by specifying specific overt act. It is not even stated in the FIS that those persons could be identifiable by sight. But, in the FIR registered Ext.P3 the names of all these persons, accused Nos.1 to 3, were disclosed. It is not explained by the prosecution from where they have borrowed the wisdom. It is not specified anywhere in the FIS Ext.P1 regarding the identity of any of the accused involved in the crime. Necessarily, the prosecution has to establish under what circumstances they have incorporated the names of the accused in Ext.P3, FIR. No explanation, much less any explanation, was forwarded by the officer who recorded the FIS, PW4 while in the box during the course of cross- examination. Necessarily, no evidentiary value can be attached to the FIS, as well as the FIR drawn and registered. In fact, the FIR, Ext. P3, is vitiated to that extent. That fact was not properly understood or taken up either by the trial court or by the First Appellate Court.

5. Secondly, on the reason that admittedly the victim, PW2, did not have any prior acquaintance with accused No.1 and no such case was even advanced either in the FIS-Ext.P3 or at any earlier point of time. No statement under Section 161 Cr.P.C was also recorded or brought to the notice of the court, or brought out at the time of examination so as to show any disclosure pertaining to the identity of accused No.1 prior to the trial. In fact, the accused was identified by the victim at first at the box, during the trial and not on earlier point of time. Necessarily, the prosecution should show and establish from where they have borrowed the wi