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4. The appellants Inderjit Singh Chabra and Gurcharan Singh have challenged the impugned judgment and order on the grounds that the same is based on surmises and conjunctures and Ld. Trial Court has decided the case arbitrarily and without applying its judicial mind. It has not properly appreciated the material on record and it has gravely erred in not appreciating the fact that the offence U/s 186 and U/s 353 IPC are intricately interconnected with each other. The facts of the case of the prosecution was so inter­woven that they can not be segregated in as much the allegation of insult from the so called assault are merged in one another and the complainant has only resorted to the device of Section 353 IPC which is a camouflage in order to evade the provisions of Section 195 Cr.P.C. The Ld. Trial Court has further failed to appreciate the fact that as the prosecution has failed to prove the complaint U/s 195 Cr.P.C, not only the offence U/s 186 IPC goes, but the other camouflage Section of 353 IPC also go. Further, the Ld. Trial Court has not appreciated that the complainant himself has improved his case in order to give colour to his falsified story. In case the complainant has received injury, he should have himself medically examined to prove the truth and in the absence of any such medical evidence the inference has to be drawn against the prosecution. Further, the complainant had improved his case by alleging that the persons present there, had thrown the file which were placed before the court. This was never the case of the prosecution in the complaint Ex.PW2/A. Thus these improvement rather go to show that the complainant was hell bent upon to prejudice the mind of the court and to seek conviction by hook or crock. The Ld. Trial Court did not appreciate that in case the files were thrown or torn, the investigation agency ought to have taken into custody and produced in the court. The absence of such a crucial evidence, falsify the case of the prosecution. The Ld. Trial Court further gravely erred in not appreciating the fact that Special Executive Magistrate Sh. B.D. Sahni was not examined in the Court. The complainant in the present case has failed to explain as to what duties were being discharged by Sh. Sahni at the relevant time and hence, any hindrance such a duty which is not defined can not be said to have been proved. The Ld. Trial Court did not appreciate the fact that all the other so called officials present there, did not support the case of the prosecution at all. Ld. Trial Court had adopted the method of pick and choose from the statements of the hostile witnesses and in this way, Ld. Trial Court lost the sight of the law laid down by Hon'ble Apex Court and Hon'ble High Court in respect of the fact that the statement of the witness, who is declared hostile is either to be believed as a whole or discarded as a whole. If the Ld. Trial Court thought it to be lawful to extract certain portion from the statement of the hostile witnesses, it ought to have also relied upon the fact that all these witnesses had not identified any of the accused in the court. Thus the conclusion arrived at by Ld. Trial Court is erroneous. It is also claimed that Ld. Trial Court further gravely erred in not appreciating the fact that the appellant was not arrested in the presence of the complainant or any of the prosecution witnesses and as such the prosecution ought to have put the appellant to test identification pared to fix his identity and more specifically when the parentage and address of the appellant was not given by the complainant in the complaint. The complainant even has admitted in the court during his evidence that the appellant was not known to him prior to the occurrence. Thus the appellant is entitled to acquittal on this ground alone, as the identification of the appellant in the court for the first time in evidence is meaningless. Further the prosecution has been failed to produce material documents on record. It is also stated that Ld. Trial Court did not realize that the appellant is senior citizen and a patient of serious ailments. he has already faced trial for the period of ten years and the sentence of imprisonment was very harsh. Ld. Trial Court has acted in a haste manner.

6. I have carefully heard the rival submissions of the counsels for the parties. I have also perused the entire material placed on record particularly the impugned order and judgment, the contents of the appeals specially the grounds taken therein as well as the record summoned from the Trial Court.

7. As per submissions of Ld. counsels for the aforesaid appellants, the impugned judgment is not sustainable in the eyes of law as the offence U/s 186 and U/s 353 IPC are intricately interconnected with each other and once it is held that offence U/s 186 IPC is not made out than offence u/s 353 IPC also can not go. Since prosecution has failed to prove the complaint U/s 195 Cr.P.C, so not only the offence U/s 186 IPC goes but the other camouflage Section of 353 IPC also goes. In their said contention they have placed reliance upon a judgment reported as 1996 JCC 535 (DHC). It is also added that since in this case the appellants were not arrested in the presence of complainant or any of the prosecution witnesses and as such the prosecution ought to have put the appellants to Test Identification Parade to fix their identity and more so when the appellant Gurcharan and Surender Mohan were not named in the FIR and the parentage and address of the appellant Inderjit Chhabra had not even mentioned in the complaint. The complainant even has admitted in the court during his evidence that the appellants were not known to him prior to the occurrence and as such on this sole ground the appellants are entitled to acquittal as the identification of the appellants in the court for the first time in evidence is meaningless. Further, B.D. Sahni, Municipal Magistrate has not been examined by the prosecution before the Ld. Trial Court without any explanation despite the fact that his name has been mentioned in the challan in the list of witnesses and his statement U/s 161 Cr.P.C has been recorded by the investigating officer and non examination of the said witness is certainly a serious infirmity on the part of prosecution. It is also added that all the witnesses except Pritam Singh have turned hostile in the matter. Further the FIR was registered on the complaint of Pritam Singh, who allegedly suffered injuries from the incident but no injury was proved as no MLC of said Pritam Singh was prepared as the said witness was not willing to get himself medically examined. This fact itself creates a big doubt in the mind about the involvement of the applicants in the alleged incident. The testimony of Pritam Singh is also suffered from material contradictions and improvements and the said fact has totally been ignored by Ld. Trial Court.

9. After giving thoughtful consideration to the rival submissions of both the sides and perusing the relevant material, I find myself in complete agreement with the claim of Ld. Addl. PP for the State that the offences U/s 186 and 353 or 332 IPC are distinct and in the absence of a complaint U/s 195 Cr.P.C regarding the offence U/s 186 IPC, trial for offence U/s 353 or 332 IPC is not barred.

In Pankaj Aggarwal & Ors. Vs. State of Dehi & Anrs. 2001 (3) Crimes 361 (SC) their Lordships of the Supreme Court after referring to the earlier decision in Durga Charan Nayak Vs. State of Orissa AIR 1966 SC 1775 held that the offence U/s 186 and 353 or 332 IPC are distinct and in the absence of a complaint u/s 195 Cr.P.C regarding the offence U/s 186 IPC, trial for the offence U/s 353 or 332 IPC is not barred.

In AIR 1966 SC 1775 (supra), it was held that the provisions of Section 353 IPC and Section 186 IPC are distinct offences and the quality of the offence is also different.

In view of the afovesaid settled preposition of law, the position is clear that the plea as raised by Ld. counsels for the appellants that the offences U/s 186 and 353 IPC go side by side and they run together and if offence U/s 186 IPC is not made out and the complaint U/s 195 Cr. P. C is not proved, then other offence U/s 353 IPC also can not run, has no force in it and the offence U/s 353 IPC can be tried separately and as such for the Trial Court there was no bar to proceed U/s 353 IPC. However, I am fully convinced with the submissions of Ld. counsels for the appellants that since the prosecution was failed to prove its case against any of the accused persons beyond the shadow of reasonable doubts, so all the appellants deserve an order of acquittal in their favour on account of benefit of doubt.