1

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON’BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 11TH OF APRIL, 2023
CRIMINAL APPEAL NO. 5697 OF 2019

BETWEEN:-

HARENDRAJEET SINGH, S/O LATE SHRI SADHU

SINGH, AGED ABOUT 60 YEARS, OCCUPATION-
EX-MINISTER, R/O ASHOKA APARTMENT,
GUPTESHWAR ROAD, GARHA, DISTRICT
JABALPUR (M.P.).

......APPELLANT

(BY SHRI SANKALP KOCHAR - ADVOCATE)

AND

STATE OF MADHYA PRADESH, THROUGH

POLICE STATION AJAAK, DISTRICT JABALPUR
(M.P.).

.....RESPONDENTS
(BY SHRI ALOK AGNIHOTRI – DEPUTY GOVERNMENT ADVOCATE)
................................................................................................................................................
Reserved on : 19.01.2023
Pronounced on : 11.04.2023
This appeal having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:

JUDGMENT
This appeal is under Section 374(2) of the Code of Criminal
Procedure against the judgment dated 20.06.2019 passed by 21 st
 2

Additional Sessions Judge and Special Judge (M.P. & M.L.A.), Bhopal
in Special Case (P.P.M.) No. 41/2018 convicting the appellant under
Section 353 of the Indian Penal Code and sentencing him to undergo
rigorous imprisonment for one year with fine of Rs. 2000/- and in
default of payment of fine, additional rigorous imprisonment for one
month.
2. As per the facts of the case, the controversy arose on the basis of
an incident which took place on 24.06.2000 at around 7.30 p.m. wherein
the appellant and his brother i.e. Paramjeet Singh went to the Police
Station Gohalpur for lodging a report regarding the fact that the truck of
one Indu Tiwari bearing Registration No. CIJ 8427 willfully crushed
into the car of the appellant bearing Registration No. M.P. 20-5300 with
intention of causing grievous hurt to him. As a result, FIR bearing Crime
No. 345/2000 was registered against Indu Tiwari and offence under
Section 307 of the Indian Penal Code was registered against him at
Police Station Gohalpur, District Jabalpur.
3. The investigation got done under the supervision of Sub Inspector
Ram Swaroop Pandre (PW-1) and Indu Tiwari was thereafter arrested by
the police but he was released on bail on 27.06.2000 i.e. just after two
days from the date of incident.
4. In addition to the above, as per the prosecution, the police
received a tip on 27.06.2000 at around 6.00 in the evening that a car
bearing Registration No. M.P. 09 N 1113 is parked in front of a
warehouse located nearby Krishi Upaj Mandi. The police reached the
spot and searched the area and found six persons sitting inside the
aforesaid car and after searching the said car, arms were seized from the
car and offence under Section 25 of the Arms Act was registered against
the persons sitting in the car. The car was also seized by the police,
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which belonged to brother of the appellant.

5. Thereafter, appellant alongwith other persons went to Police
Station, Gohalpur to enquire about the incident and registration of
offence under Section 25 of the Arms Act.
6. As per the prosecution, the appellant got into a heated argument
with police officials and alleged that the police are registering a false
case at the instance of local MLA just to malign the reputation of the
appellant by keeping the weapons in the car and arresting the innocent
persons. In the police station, the appellant abused Ram Swaroop
Pandre, who is the complainant and lodged the FIR against the
appellant, saying that he had given undue favour to Indu Tiwari and as
such despite registration of offence under Section 307 of IPC against
him, he was granted bail only within two days as Shri Pandre after
investigation had prepared a very weak case against Indu Tiwari. As per
the prosecution, the appellant picked up a stool and tried to assault the
complainant (Ram Swaroop Pandre) and also abused him and then FIR
got registered against the appellant and offences under Sections 294,
448, 506 of IPC and Section 3(1)(x) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 registered against
him.
7. The police after completing necessary formalities, completed the
investigation and submitted the charge sheet in the Court of Judicial
Magistrate First Class Jabalpur where the Court framed the charges
against the appellant. Thereafter, the case was committed for trial to the
Court of XXI Additional Sessions Judge and Special Judgek (M.P. &
M.L.A.).
8. The appellant abjured his guilt and pleaded not guilty. He did not
produced any evidence in his defence and stated that he has been falsely
 4

implicated in the case on account of political rivalry.

9. The prosecution examined as many as 11 witnesses to prove the
guilt of appellant.
10. After conducting trial, the trial court vide impugned judgment
dated 20th June, 2019 recorded finding that the prosecution established
its case that the at the time of incident the complainant (PW-1) was
discharging his official duty and at that time the appellant assaulted him
by means of a stool, but the trial court found that the prosecution failed
to prove unlawful assembly or any abuse to complainant by the
appellant beyond reasonable doubt. Accordingly, the trial court acquitted
the appellant of the charge under Sections 294, 448, 506 of IPC and
Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention
of Atrocities) Act, 1989, however convicted him for the offence under
Section 353 of IPC and sentenced him to undergo rigorous
imprisonment for one year with fine of Rs. 2000/- with default
stipulation.
11. Shri Kochar appearing for the appellant has assailed the judgment
and finding recorded by the trial court mainly on two grounds; firstly
that the trial court failed to establish a case under Section 353 of the
Indian Penal Code against the appellant because from the statement of
complainant Ram Swaroop Pandre (PW-1) and all other witnesses it is
clear that the offence under Section 353 of IPC is not made out against
the appellant and secondly that the incident occurred on 28.06.2000 but
the FIR was lodged on 18.03.2002 and as such there is a delay of almost
two years but there is no explanation by the prosecution for such delay.
He has submitted that in absence of any plausible explanation or
justification for not lodging the FIR in time, the incident appears to be
suspicious and the sentence can be set aside on this count alone. He also
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submits that the statements of witnesses were recorded after lapse of

almost 3-4 years and therefore it can be said that the aforesaid witnesses
are planted witnesses and they had nothing to do with the alleged
incident. He further submits 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. Counsel
submits that the trial court failed to appreciate that the complainant
himself has very categorically admitted in his statement that while
incident occurred he was not performing any official duty and further
admitted that the appellant had not created any hurdle in his official
work and he failed to explain as to what influence was used by the
appellant because there were so many persons present in the police
station. He submits that the statement of complainant only is enough to
establish that the prosecution has failed to prove its case against the
appellant beyond reasonable doubt and as such the trial court erred in
convicting the appellant and awarding him sentence under Section 353
of IPC.
12. On the other hand, learned counsel for the respondent/State has
opposed the submission made by the learned counsel for the appellant
and supported the finding recorded by the trial court. He has submitted
that although the complainant was not consistent with his statement in
some places but in some of the occasions he had supported the case of
the prosecution saying that the appellant created hurdle in discharging
his official duties and at the relevant point of time he was discharging
his official duties. He further submits that there is sufficient explanation
available about delay in lodging the FIR and only on that count the
finding given by the court below convicting the appellant cannot be said
 6

to be illegal and cannot be set aside. He submits that the prosecution has
successfully proved its case against the present appellant and he has
rightly been convicted.
13. Shri Kochar, to buttress his submission, placed reliance upon the
judgments rendered by the Supreme Court and the High Courts of other
States in the cases of Manik Taneja and another vs. State of Karnataka
and another reported in (2015) 7 SCC 423, Harbeer Singh vs.
Sheeshpal and others reported in (2016) 16 SCC 418, Jaswinder Singh
vs. State of Punjab reported in 1995 SCC OnLine P & H 157, Ramesh
Kumar vs. Smt. Sushila Shrivastava reported in 1996 SCC OnLine Raj
153 and a judgment pronounced by the Kerala High Court in the case of
P.V. Mathai vs. The State of Kerala & Another-CRL.MC No. 4477 of
2019.
14. Shri Kochar has drawn attention of this Court towards the
statement of Ram Swaroop Pandre (PW-1), who in para-9 of his
statement has stated as under:-
“9- ;g lgh gS fd ?kVuk ds le; eSa dksbZ ljdkjh dke
ugha dj jgk Fkk vkSj u gh vkjksih us esjs fdlh ljdkjh dke
esa O;o/kku Mkyk FkkA ;g lgh gS fd ?kVuk ds le; cgqr ls
yksx Fks vkSj eSa ugh crk ldrk fd fdlus dkSu lh xkyh nh
FkhA ;g dguk lgh gS fd eSus ,Q-vkbZ-vkj- esa rkjh[k xyr
ntZ gksus dh dksbZ dk;Zokgh ugha dh Fkh vkSj u gh
mPpkf/kdkfj;ksa dks dksbZ f’kdk;r dh vkSj u gh foospd dks
bl laca/k esa la’kks/ku gsrq dksbZ vkosnu fn;kA ;g ckr lgh gS
fd gjsanzthr flag cCcw uke ds vkSj Hkh O;fDr gks rks eSa ugha
tkurkA”

15. As per Shri Kochar, statement of complainant itself makes it clear

that at the time of incident he was not performing any official duty and
the appellant had not created any hurdle to prevent or deter him from
discharging his official duty and as such the offence under Section 353
 7

of IPC is not made out against the appellant because the required
ingredients of such offence are missing in the present case. He further
submits that there is no plausible explanation or justification with the
prosecution for lodging the FIR and recording statements of witnesses
after an inordinate delay. The trial Court has also not considered this
aspect and also not given any specific finding that there was sufficient
explanation given by the prosecution for registration of offence
belatedly.
16. Considering the rival contention of the learned counsel for the
parties, it is clear that the basic contention has been put forth before this
Court that in view of the statement of Ram Swaroop Pandre (PW-1)
(Complainant), as has been quoted hereinabove, the offence under
Section 353 of IPC is not made out against the appellant. Therefore, to
reach to a logical conclusion whether the appellant is guilty of offence
under Section 353 of IPC or not, it is apt to consider and analyze the
necessary ingredients of Section 353 of IPC, which 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:-
“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
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.”

17. The above Section very categorically provides that in order to

attract the offence it is the duty of the prosecution to prove that there
 8

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.
18. 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:-
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 cessation of motion in one
of the three ways hereinafter described:
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.

19. 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
 9

environment is known as force. The term “force” as defined in this

Section refers to force exerted by a person on another human.
Section 350: Criminal force—Whoever intentionally
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.

20. 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
essential 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.
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.
Explanation.—Mere words do not amount to an assault.
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.

21. In the present case, complainant Ram Swaroop Pandre (PW-1)

although indisputably is a public servant but he himself in his statement
recorded before the court admitted that at the time of incident he was not
performing any official duty and appellant had not created any hurdle or
deter him from performing official duty, therefore it is distinctly clear
that the required ingredients of Section 353 of IPC are not available in
the present case and the prosecution in fact has failed to establish the
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material ingredients of Section 353 of IPC.

22. In this regard, the Supreme Court in the case of Manik Taneja
(supra) in para10 has observed as under:-
“10. So far as the issue regarding the registration of
FIR under Section 353 IPC is concerned, it has to be
seen whether by posting a comment on the Facebook
page of the traffic police, the conviction under that
section could be maintainable. Before considering the
materials on record, we may usefully refer to Section
353 IPC which reads as follows:

“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
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.”

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
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, the
ingredients of the offence under Section 353 IPC are
not made out.”

Further, in the case of P.V. Mathai (supra), the Kerala High Court
has also considered this aspect and dealing with material ingredients of
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Section 353 has also observed as under:-

“7. Section 353 of IPC deals with an offence of assault
or criminal force to deter a public servant from
discharge of his official duty, which reads as follows:-
“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 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.”

8. A reading of the above provision would make it

clear that in order to attract the offence, the
prosecution is required to establish that there was
assault or use of criminal force and such assault or use
of criminal force was made on a public servant while
he was acting in the execution of his duty or with
intent to prevent or deter him from discharging his
duty or in consequence of anything done or attempted
to be done by him in the discharge of his duty. There is
no doubt that the second respondent is a public servant
and at the time of the alleged incident, she was
discharging her official duty. But the crucial question
is whether the petitioner has assaulted the second
respondent or used any criminal force and whether the
alleged act was done by the petitioner with intent to
prevent or deter the second respondent from
discharging her official duty.

9. The word 'assault' has been defined under Section

351 of IPC as follows:- “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. “ The explanation
says that mere words do not amount to an assault.

10. A reading of Section 351 of IPC would show that

the victim must apprehend that he who makes that
gesture or preparation was about to use criminal force
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to the victim.

11. The word 'criminal force' has been defined under

Section 350 of IPC as follows:-
“Whoever intentionally 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.”

12. The word 'force' has been defined under Section

349 of IPC as follows:-
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 cessation of motion
in one of the three ways hereinafter described.

13. In the case on hand, the prosecution has no case

that the petitioner has used any force on the 2nd
respondent. On the other hand, the case of the
prosecution in short is that, after entering into the
office room of the petitioner, the accused asked as
follows:- “Who asked you to enter into my property,
who is your authorized officer, who gave you the
authority to enter into my land.” Apart from uttering
these words, there was absolutely no use of force or
even an attempt to use force. Apart from the vague
allegation that the official time of the 2nd respondent
was lost on account of the alleged acts of the
petitioner, there is no specific allegation that the above
mentioned words were uttered by the petitioner with
the intent to deter the 2nd respondent from discharging
her duty.

In case of Jaswinder Singh (supra) Punjab and Haryana High

 13

Court while dealing with Section 353 of IPC has observed as under:-
“4. The learned counsel for the petitioners contended
that offences under Sections 333, 332 and 353 I.P.C.
have not been made out on a reading of the complaint.
It is not the case of the prosecution that the police
constable Davinder Singh was attacked while
discharging his duties as a public servant or with any
intent to prevent or deter the constable from
discharging his duties as such public servant and,
therefore, the offences under Sections 333, 332 and
353 I.P.C. are not attracted in this case. According to
him, the averments in the complaint may amount to
commission of offences under Sections 323 or 324 or
under any other Section, which are not exclusively
triable by the Court of Sessions. According to learned
counsel, the offences under Sections 332, 333 and 353
I.P.C. came into play only when a public servant is
discharging his duties as such and that if any injury is
caused to him while discharging his duties in official
capacity. According to him, it is not the case of the
prosecution that at the time of the commission of the
offence, the constable Davinder Singh was discharging
any official duty because after performing his official
duties, he had been simply returning to the police
station in the bus during which time the alleged
incident was said to have taken place.
5. It is to be seen whether the learned Additional
Sessions Judge is correct in framing charges for the
offences under Sections 332, 333 and 353 I.P.C. read
with Section 34 I.P.C.
6. Sections 332, 333 and 353 I.P.C. read as follows:
“Section 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.
Section 333. Voluntarily causing grievous hurt
to deter public servant from his duty. - Whoever
 14

voluntarily causes grievous 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 ten years
and shall also be liable to fine.
Section 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
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.”
7. A reading of the above Sections clearly shows that
if a public servant while discharging his duties is
attacked or any injury caused to public servant in the
discharge of his duties or when any public servant
prevented or deterred from performing his duties or
when any public servant assaulted or any criminal
force used against the public servant while he is
executing his duties as such public servant, then only
the above offences would attract. It is not the case of
the prosecution that the accused caused hurt or
assaulted the constable Davinder Singh while he was
performing his duties as such public servant, or with
intent to prevent him or deter him from discharging his
duties. I am, therefore, of the opinion that the
necessary ingredients to attract Sections 332, 333 and
353 I.P.C. are not present in the present case. The
learned Additional Sessions Judge has not considered
this aspect of the matter. The learned Additional
Sessions Judge referred to a Supreme Court judgment
in Manumiya v. State of Gujarat, reported in (1979) 4
SCC 717 : AIR 1979 SC 1706, but that decision is not
applicable in this case as in that case the driver of the
bus was prevented from entering into the bus to drive
the bus, which is his duty, therefore, on the facts of
 15

that case, it has been held that the public servant was
prevented from discharging his duty, namely, plying
the vehicle, but such is not the case in the present one.
There is no allegation anywhere in the complaint that
the police constable was prevented or deterred from
performing his duty. There is also no allegation that he
was hurt while performing his duty. Performance of
duty had already been done by him by delivering dak
at various places. He was coming back to the police
station after performing his duties. Simply because the
police constable happens to be a public servant, it
cannot be said that he has been discharging his duties.
It depends on the facts of each case whether a public
servant can be said to be discharging his duties and
whether the offences have been committed when the
public servant has been discharging his duties. It is not
even the case of the prosecution that the accused had
knowledge that the constable was performing his duty.
Therefore, it cannot be said that the accused with an
intent to prevent or deter the complainant from
discharging his duties, caused injuries to him. It cannot
also be said that the accused caused hurt to the
constable while he was discharging his duties. I am,
therefore, of the opinion that Sections 332, 333 and
353 I.P.C. are not attracted in this case but the fact
remains that it is the case of the prosecution that the
accused beat the constable Davinder Singh on the date
of the incident. It is also mentioned that his teeth were
broken. It is also in the complaint that an iron rod has
been used by the accused while attacking the
constable. Therefore, it is for the Additional Sessions
Judge to consider under what Sections the accused has
to be charged with. I, therefore, feel that it is just and
proper to set aside the impugned order of the learned
Additional Sessions Judge and remand the matter back
to him for reconsideration on the question of charges
to be framed against the accused on the basis of the
averments in the complaint and if he feels that any
offence exclusively triable by a Court of Sessions is
made out, he may try and proceed with the trial of the
case after framing appropriate charges. If, he is of the
opinion that the offences said to have been committed
by the accused are not exclusively triable by the Court
of Sessions, he may frame appropriate charges against
the accused for these offences and send the matter to
Chief Judicial Magistrate for trial as provided under
 16

Section 228 clause (1) of the Code of Criminal

Procedure.

23. Considering the statement of complainant and the finding given

by the trial court, this Court has no hesitation to say that the trial court
failed to consider the statement of the complainant admitting that at the
time of incident he was not performing any official duty and this
material aspect has been over-looked by the court. From the statement of
the complainant (PW-1) it is also clear that his statement is varied from
time to time as at some places he has alleged against the appellant and at
some places he has admitted that appellant did nothing and also not
created any hurdle in performing the official duty. To make it clear that
the statement of complainant Ramswaroop Pandre (PW-1) varied at
various place, it is pertinent to reproduce the relevant paragraphs of his
statement which are as under:-
“2- ^^psEcj ds vanj gjsUnzthr flag cCcw }kjk lh,lih0
vkfgjs ,oa Vh-vkbZ- cksgjs dks mijksDr fo"k;ksa dks ysdj ppkZ
dj jgs Fks] lh,lih0 vkfgjs lkgc }kjk Li"V muds lkeus
cksy fn;k Fkk fd 6 yM+ds tks fxjQ~rkj gq, gSmuds ikl
gfFk;kj izkIr gqvk gS tIr fd;k x;k gS tks dk;Zokgh dh xbZ
gS og okftc dh xbZ rks gjsUnzthr flag cCcw xqLls ls psEcj
ds ckgj fudy vk,] eS vius lkFkh Fkkusnkjksa ds lkFk ikspZ ds
uhps cSBk Fkk] eq>s ns[krs gh vkjksih gjksUnzthr flag cCcw xqLls
esa vkdj cksyus yxs rqe gks eknjpksn iUnsZ rqeus gekjs HkkbZ ds
ekeys esa l[rh ls dk;Zokgh ugha djus ds dkj.k vkjksih bUnq
frokjh dh rqjar U;k;ky; ls tekur gks xbZ Fkh rqeus esjs
HkkbZ dh ,uh dkj esa cSBs gq, gekjs yM+dksa dks Hkh gfFk;kj
lfgr fxjQ~rkj fd;k gS tcfd muds ikl gfFk;kj ugha Fkk]
ekW cfgu dh xkyh xykSap nsrs gq, rqe eknjpksn xqMokW
eknjpksn xksyh ejok nwWxkA eq>s xkyh lquus esa cgqr [kjkc
yxhA gjsUnzthr flag cCcw xqLls esa gh FksA ikl es ydM+h dk
LVwy iM+k Fkk ml LVwy dks vius gkFkksa esa mBk;k vkSj eq>s
ekjus dks nkSM+k vxj mlh le; VhvkbZ0 cksgjs vkokt lqudj
ckgj ugha fudyrs vkSj gjsUnzthr flag cCcw dks idM+rs ugah
rks ,d vfiz; ?kVuk gks tkrh] esjh gR;k Hkh gks ldrh FkhA
 17

VhvkbZ0 Jh cksgjs ,oa lh,lih0 vkfgjs vkSj LVkQ ugha nkSM+k

gksrk vkSj mudks idM+dj psEcj rjQ ugha ys tk;k x;k
gksrk rks ,d fuf’pr vfiz; ?kVuk gks tkrhA
5- ?kVuk fnukad 28-06-2000 dh gS] fnu eq>s ;kn ugha
gSA ?kVuk jkr ds 12-30 cts ;k 1 cts dh gSA ?kVuk dh
fnukad ,oa le; dk esjk M;wVh izek.k i= izdj.k esa layXu
gS ;k ugha] og foospd crk;saxs] vkt eSa vius lkFk ugha yk;k
gwaA ?kVuk ds le; eSa dksbZ dk;Zokgh ugha dj jgk FkkA ?kVuk
fnukad dks eSa vius lkfFk;ksa ds lkFk Fkkus ds ckgj cSBk FkkA
Fkkus esa Vh-vkbZ- lkgc vius psEcj esa mifLFkr FksA ;g dguk
lgh gS fd vkjksih lh/ks vkdj Vh-vkbZ- lkgc ds ikl x;s
vkSj ckrphr dhA D;k ckrphr gqbZ eq>s tkudkjh ugha gSA
vkjksih ds lkFk dkSu&dkSu O;fDr Fks] eSa uke ls ugha tkurk]
Lor% dgk fd 10&15 yksx FksA ;g dguk xyr gS fd ?kVuk
fnukad 28-06-2000 dh ugha gSA**
9- ;g lgh gS fd ?kVuk ds le; eSa dksbZ ljdkjh dke
ugha dj jgk Fkk vkSj u gh vkjksih us esjs fdlh ljdkjh dke
esa O;o/kku Mkyk FkkA ;g lgh gS fd ?kVuk ds le; cgqr ls
yksx Fks vkSj eSa ugh crk ldrk fd fdlus dkSu lh xkyh nh
FkhA ;g dguk lgh gS fd eSus ,Q-vkbZ-vkj- esa rkjh[k xyr
ntZ gksus dh dksbZ dk;Zokgh ugha dh Fkh vkSj u gh
mPpkf/kdkfj;ksa dks dksbZ f’kdk;r dh vkSj u gh foospd dks
bl laca/k esa la’kks/ku gsrq dksbZ vkosnu fn;kA ;g ckr lgh gS
fd gjsanzthr flag cCcw uke ds vkSj Hkh O;fDr gks rks eSa ugha
tkurkA”

24. Likewise, I have also examined the testimony of other witnesses.

Out of them, Govind Prasad Dubey, Head Constable (PW-3) and Naresh
Chandra, Constable (PW-4) have not supported the case of the
prosecution and declared hostile. Rest of the witnesses i.e. PW-4 to PW-
11 have not supported the case of the prosecution as a whole and have
also not supported the version of the complainant fully. At some places
testimony of witnesses is contradictory to each other as some of them
stated that they had given the statements reading their 161 statement
since the incident occurred a long time back and they did not remember
the same. Similarly, about the assault and abuse by the appellant to
 18

complainant (PW-1), there is variation in the statements of the witnesses

as some of the witnesses stated that when appellant was trying to assault
complainant, T.I., Girish Bohre (PW-9) and CSP Shri Ahire stopped the
appellant and some of the witnesses stated that the staff members
stopped the appellant. However, the testimony of most of the witnesses
including complainant (PW-1) is intact with regard to the fact that at the
time incident they were sitting outside the police station in the porch
area and not performing any official duty. About abuse, the complainant
has stated in his statement that he cannot say as to who abused him as
there were several persons present in the police station. Thus, in my
opinion, it is clear that the offence under Section 353 of IPC is not made
out against the appellant.
25. So far as delay in lodging the FIR is concerned, after examining
the record and perusal of the finding given by the trial court, I find that
there is no plausible explanation about lodging of the alleged report after
a delay of two years except the fact that the incident was recorded in
Rojnamcha Sanha or conveyed to superior officer but that is not
sufficient explanation to establish as to why the report was not lodged
immediately after the incident. In this regard, the Supreme Court in the
case of Harbeer Singh (supra) has considered the impact of recording
of the statement of witnesses belatedly and observed as under:-
“15. We have given careful consideration to the
submissions made by the parties and we are inclined to
agree with the observations of the High Court that PW
3 and PW 9 were not witnesses to the alleged
conspiracy between the accused persons since not only
the details of the conversation given by these two
prosecution witnesses were different but also their
presence at the alleged spot at the relevant time seems
unnatural in view of the physical condition of PW 9 and
the distance of Sheeshpal's Dhani from Sikar Road.
Besides, it appears that there have been improvements
 19

in the statements of PW 3. The Explanation to Section

162 CrPC provides that an omission to state a fact or
circumstance in the statement recorded by a police
officer under Section 161 CrPC, may amount to
contradiction if the same appears to be significant and
otherwise relevant having regard to the context in
which such omission occurs and whether any omission
amounts to a contradiction in the particular context
shall be a question of fact. Thus, while it is true that
every improvement is not fatal to the prosecution case,
in cases where an improvement creates a serious doubt
about the truthfulness or credibility of a witness, the
defence may take advantage of the same. (See Ashok
Vishnu Davare v. State of Maharashtra, (2004) 9 SCC
431 : 2004 SCC (Cri) 1468 ; Radha Kumar v. State of
Bihar, (2005) 10 SCC 216 : 2005 SCC (Cri) 1507;
Sunil Kumar Sambhudayal Gupta v. State of
Maharashtra, (2010) 13 SCC 657 : (2011) 2 SCC (Cri)
375 and Baldev Singh v. State of Punjab, (2014) 12
SCC 473 : (2014) 6 SCC (Cri) 810). In our view, the
High Court had rightly considered these omissions as
material omissions amounting to contradictions covered
by the Explanation to Section 162 CrPC. Moreover, it
has also come in evidence that there was a delay of 15-
16 days from the date of the incident in recording the
statements of PW 3 and PW 9 and the same was sought
to be unconvincingly explained by reference to the fact
that the family had to sit for condolence (2016) 16 SCC
418_1.png) meetings for 12 to 13 days. Needless to say,
we are not impressed by this explanation and feel that
the High Court was right in entertaining doubt in this
regard.
16. As regards the incident of murder of the deceased,
the prosecution has produced six eyewitnesses to the
same. The argument raised against the reliance upon the
testimony of these witnesses pertains to the delay in the
recording of their statements by the police under
Section 161 CrPC. In the present case, the date of
occurrence was 21-12-1993 but the statements of PW 1
and PW 5 were recorded after two days of incident i.e.
on 23-12-1993. The evidence of PW 6 was recorded on
26-12-1993 while the evidence of PW 11 was recorded
after 10 days of incident i.e. on 31-12-1993. Further, it
is well-settled law that delay in recording the statement
of the witnesses does not necessarily discredit their
testimony. The court may rely on such testimony if they
 20

are cogent and credible and the delay is explained to the

satisfaction of the court. [See Ganeshlal v. State of
Maharashtra, (1992) 3 SCC 106 : 1993 SCC (Cri) 435;
Mohd. Khalid v. State of W.B., (2002) 7 SCC 334 :
2002 SCC (Cri) 1734 ; Prithvi v. Mam Raj, (2004) 13
SCC 279 : 2005 SCC (Cri) 198 and Manu Sharma v.
State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC
(Cri) 1385].
17. However, Ganesh Bhavan Patel v. State of
Maharashtra, (1978) 4 SCC 371 : 1979 SCC (Cri) 1],
is an authority for the proposition that delay in
recording of statements of the prosecution witnesses
under Section 161 CrPC, although those witnesses were
or could be available for examination when the
investigating officer visited the scene of occurrence or
soon thereafter, would cast a doubt upon the
prosecution case. (See also Balakrushna Swain v. State
of Orissa, (1971) 3 SCC 192 : 1971 SCC (Cri) 313;
Maruti Rama Naik v. State of Maharashtra, (2003) 10
SCC 670 : 2004 SCC (Cri) 958 and Jagjit Singh v. State
of Punjab, (2005) 3 SCC 689 : 2005 SCC (Cri) 893].
Thus, we see no reason to interfere with the
observations of the High Court on the point of delay
and its corresponding impact on the prosecution case.

26. Thus, if there is a delay in lodging the FIR and the same is not
properly explained during the course of the trial by the witnesses
produced by the prosecution then the credibility of the witnesses can be
considered to be doubtful otherwise if by cogent explanation the delay is
explained then the reliability of witnesses cannot be doubted. However,
in the present case there is a delay in lodging the FIR that too almost
two years but no sufficient explanation is given during the course of the
trial by the witnesses of the prosecution. In such a circumstance, the
credibility of the witnesses can be doubted and on the basis of delay the
story of the prosecution becomes doubtful. Accordingly, the conviction
of the appellant in the present case can also be set aside on the ground of
delay, in addition to the reasons assigned for setting aside the conviction
 21

as the offence under Section 353 of IPC is not made out against the
appellant in view of the discussion made hereinabove by this Court.
27. In view of the aforesaid and the law laid down by the Supreme
Court in the cases cited above and after examining the definition of
“assault” and “criminal force” as has been mentioned above and also the
statements of the complainant and other witnesses produced, I am of the
considered view that the prosecution failed to establish that there was
assault or use of criminal force by the appellant and such assault or use
of criminal force made on the complainant while he was acting in
execution of his official duty. The prosecution also failed to give any
reasonable explanation or justification with regard to registering the FIR
after a delay of two years and also recording the evidence of witnesses
after 3-4 years of the incident. The trial court has also failed to
appreciate this aspect of the matter and failed to record any finding in
this regard. At the cost of repetition, it is to be reiterated here that the
witnesses produced by the prosecution were all interested witnesses and
not the independent witnesses and hence their testimony is doubtful and
cannot be relied upon. The statement of complainant-Ram Swaroop
Pandre (PW-1) itself reveals that at the time of incident he was not
performing any official duty and nobody restrained him from
discharging his official duty or assaulted him however if the statement
of any of the witnesses records after two years of the incident and he
states contrary to the statement of complainant, he cannot be said to be a
trustworthy witness and his testimony is doubtful and cannot be relied
upon. The prosecution has committed a grave mistake in recording the
statements of witnesses after a long delay of 3-4 years and on the basis
of such statements, which are not corroborated with the statement of
complainant, the finding of conviction and sentence recorded by the trial
 22

court cannot be appreciated and approved and hence this Court allows
the appeal mainly on the ground that the prosecution failed to establish
the material ingredients of Section 353 of IPC and the trial court also
failed to appreciate the aforesaid aspect and recorded the finding of
conviction erroneously.
28. Accordingly, this appeal is allowed. The impugned judgment
dated 20.06.2019 passed by 21st Additional Sessions Judge and Special
Judge (M.P. & M.L.A.), Bhopal in Special Case (P.P.M.) No. 41/2018 is
hereby set aside. The appellant is acquitted from the alleged charge.
Since the appellant is on bail, his bail bond and surety bond stand
discharged.

(SANJAY DWIVEDI)
JUDGE
Raghvendra

RAGHVENDRA
SHARAN
SHUKLA
2023.04.12
11:24:04 +05'30'