IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.02.2010 C O R A M THE HONOURABLE MR.JUSTICE K.MOHAN RAM Criminal Revision Case No.190 of 2008 Jayaseeli ... Petitioner -Vs.- State by, Inspector of Police Arichalur Police Station Erode District ... Respondent Criminal Revision Case under Sections 397 and 401 of the Criminal Procedure Code to call for the records, order and judgment passed by the learned I Additional Sessions Judge, Erode, in C.A.No.196 of 2007, dated 14.11.2007 confirming the order, dated 27.08.2007, in C.C.No.59 of 2006 on the file of the learned Judicial Magistrate No.II, Erode, and set-aside the same. For Petitioner : Mr. S.Samuel Raja Pandian For Respondent : Mr. R.Muniyappa Raj, Govt. Advocate (Crl. Side) - - - O R D E R The petitioner in the above Criminal Revision Case is the accused in C.C.No.59 of 2006 on the file of the learned Judicial Magistrate No.II, Erode. The petitioner was tried for the charges under Sections 353, 294 (b), 427 and 506 (ii) IPC. While the petitioner was acquitted of the charges under Sections 294 (b) and 506 (ii) IPC, she was convicted for the offence under Sections 353 IPC and 427 IPC and sentenced to the fine of Rs.400/- and Rs.300/- respectively with a default clause. Being aggrieved by that, the petitioner preferred an appeal in C.A.No.196 of 2007 before the First Additional Sessions Judge, Erode, who by his judgment, dated 14.11.2007, dismissed the appeal and confirmed the conviction and sentence imposed on the petitioner by the trial court. Being aggrieved by that, the petitioner is before this Court. 2. The case of the prosecution in brief is as follows:- (i) P.W.10 is the Deputy Tahsildar, working at Erode Tahsildar's office. On 29.11.2005 one Baskaran gave him a petition asking him to make arrangements to measure his property comprised in Natham S.No.1940/6. Accordingly, he instructed P.W.1 to go to the property and measure the same and to submit a report. (ii) On the instructions of the Deputy Tahsildar, P.W.1, https://hcservices.ecourts.gov.in/hcservices/ who is the Firka Surveyor went to the Natham S.F.No.1940/6 and he gave information to the neighbours about his visit to the property. At about 03.30 pm he started measuring the property in the presence of Baskaran and his neighbour Jayaseeli, the accused herein. The accused objected the measuring of the property for which P.W.1 said that he was acting on instructions of the Tahsildar which she could not resist. When he proceeded his job, the accused abused him by using filthy language and also threatened him. She also tore the measuring tape to a length of 19 metres and took away the same. She also tore the Filed Measurement Book (FMB) and damaged. Then P.W.1 went to Arachalur Police Station and lodged a complaint-Ex.P-2. After completing investigation, the Investigating Officer filed the charge sheet for the aforesaid offences. 3. To prove the prosecution case, the prosecution has examined P.Ws.1 to 11 and marked Exs.P-1 to P-8 and M.O.1. Though no oral evidence was adduced on the side of the accused, Exs.D-1 and D-2 were marked. P.Ws.1, 2 and 3 are the Government Servants. P.W.4 is the person who sought for survey of his lands and P.W.5 is the daughter-in-law of P.W.4. P.W.1 is the surveyor who lodged the complaint. The occurrence is said to have taken place at 03.30 pm on 17.12.2005, the complaint has been lodged on 10.00 pm on 17.12.2005 and the First Information Report had reached the Court at 08.05 pm on 18.12.2005. The Courts below have believed the prosecution witnesses and convicted the petitioner under Sections 353 and 427 IPC, but acquitted the petitioner for the charges under Sections 294 (b) and 506 (ii) IPC. 4. Heard the learned counsel on either side. 5. Learned counsel for the petitioner, though made several submissions as to why the Courts below ought not to have relied upon the evidence of the prosecution witnesses, mainly contended that P.W.1 and the father of P.W.4 were working in the same office and only to support P.W.4, a false complaint had been lodged against the petitioner and pleaded that the revision could be disposed of on the legal aspect. 6. At the outset it has to be pointed out that the trial court on a consideration of the answers elicited from P.W.1 during the course of cross-examination disbelieved the recovery of M.O.1, Tape. The trial court while considering the prosecution case that the accused torn off the FMB and the Settlement Register carried by P.W.1 has observed that along with his complaint P.W.1 had enclosed the torn off FMB and the Settlement Register and has further observed that the above said two documents were sent to the Court, but the same have not been produced before the Court. When it is the case of the prosecution that the aforesaid two documents were enclosed with the complaint, but the same are not available in the Court and therefore it has to be held that the alleged tearing of FMB and the Settlement Register has not been proved beyond doubt by the prosecution, though there is oral evidence on that aspect. When the tearing of Tape-M.O.1, FMB and https://hcservices.ecourts.gov.in/hcservices/ the Settlement Register have not been proved beyond reasonable doubt, the offence under Section 427 IPC cannot be said to have been proved, therefore, the finding of the Courts below that the charge under Section 427 IPC has been established cannot be sustained. Therefore, the said finding of the Courts below is set-aside. 7. As far as the charge under Section 353 IPC is concerned, before considering the evidence on record, it will be useful to 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 aforesaid provision shows that the main ingredients of the offence under Section 353 IPC are that the person accused of the said charge should have assaulted the public servant or used criminal force with intent to prevent or deter the public servant from discharging his duty as such public servant. Therefore, the main ingredients of the offence is that the accused should be shown to have assaulted the public servant or used criminal force. 8. In the decision reported in AIR 1966 Supreme Court 1775 (V 53 C 358) (Durgacharan v. State of Orissa) it has been laid down that under 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 reported in 1967 Cri. L.J. 261 (Vol 73, C.N. 69) = AIR 1967 SC 170 (V 54 C 34) (Chandrika sao v. State of Bihar), 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 person's 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. 9. If the evidence on record available in this case is perused in the light of the aforesaid legal principles laid down by the Apex Court, it has to be pointed out that the ingredients of the offence under Section 353 IPC are not made out. When, as pointed out above, the prosecution has not proved beyond doubt, the tearing of the tape, FMB and the Settlement Register, it could be held that there was no use of criminal force. Similarly, it is not the case of the prosecution itself that the petitioner https://hcservices.ecourts.gov.in/hcservices/ assaulted P.W.1 to prevent him from doing his official duty. However, it has to be pointed out that the prosecution has not established that force was used intentionally to P.W.1 without P.W.1's consent in order to commit an offence or with an intention or with the knowledge that the use of force will cause injury, fear or annoyance against P.W.1 against whom the force is used. When there is absolutely no evidence that the petitioner either assaulted P.W.1 or used criminal force to prevent him from discharging his official duty, it cannot be said that the ingredients of the offence under Section 353 IPC are made out. This legal aspect has not at all been considered by both the Courts below. Both the Courts below have not properly understood the ingredients of the offence under Section 353 IPC itself and therefore this Court is compelled to interfere with the judgments of the Courts below. 10. For the aforesaid reasons, the conviction and sentence imposed on the petitioner for the offence under Sections 353 and 427 IPC are set-aside and the Criminal Revision Case is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar srk To 1.The I Addl.Sessions Judge, Erode. 2.-do- Thro' Prl. Sessions Judge, Erode. 3.The Judicial Magistrate, No.II, Erode. 4.-do- Thro The Chief Judicial Magistrate, Erode. 5.The Public Prosecutor, High Court,Madras. 6.The Inspector of Police, Arichalur Police Station, Erode. 7.The Section Officer, Criminal Section, High Court,Madras. +1cc to MR.S.Samuel Raja Pandian, Advocate Sr 6248 BVR(CO) km/24.3. Crl.R.C.No.190 of 2008 https://hcservices.ecourts.gov.in/hcservices/