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[2024:RJ-JD:21392] (3 of 16) [CRLR-1334/2016] 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.

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 [2024:RJ-JD:21392] (4 of 16) [CRLR-1334/2016] 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.

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.

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 [2024:RJ-JD:21392] (5 of 16) [CRLR-1334/2016] both the offences. Firstly, Section 332 IPC is reproduced hereinbelow :-

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.

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 [2024:RJ-JD:21392] (14 of 16) [CRLR-1334/2016] 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.

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 :-

"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 PW- 5, 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.