IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 260 of 2003 Date of Decision: 3rd August, 2010 __________________________________________________________ State of H.P. ….Appellant. Versus Bhariongiri ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. __________________________________________________________ For the Appellant: Ms. Ruma Kaushik Additional Advocate General. For the Respondent: Shri A.K. Sharma, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The State is aggrieved by the judgment of acquittal passed by the learned Sessions Judge acquitting the respondent for offence under Section 353 of the Indian Penal Code. 2. The prosecution case in brief is that the respondent had assaulted Shri Raju Ram who was posted as Process Server in the Court of Sub Judge, Sundernagar on 3.3.1997 when he had gone to the Kutia of the respondent for effecting service in a pending case. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 3. The learned trial Court on the evidence of complainant Raju Ram as also that of two other witnesses namely PW2 Narain Singh and PW3 Ramesh Kumar, convicted the respondent for offence as charged holding that the respondent had assaulted the Process Server who was a public servant within meaning of Section 353 of the Indian Penal Code. 4. The case of the prosecution is that the respondent had threatened the Process Server with a “Chimta” when he had gone to serve the Court process. This according to the trial Court constituted not only a serious encroachment on the dispensation of the justice but also an assault on the public servant, deterring him from performing public duties which is punishable under Section 353 of the Indian Penal Code. 5. The learned Appellate Court has reconsidered the evidence in detail. The Court holds that it was not sufficient that PW2 Narain Singh and PW3 Ramesh Kumar had purportedly corroborated the testimony of PW4 complainant Raju Ram. The Court holds that according to the complainant both these witnesses were on the road side and the distance from the Kutia to the road could be covered while running in one to two minutes. The Court concludes that there are contradictions in the statements of these witnesses as PW2 Narain states that the respondent attempted to beat the complainant and PW3 Ramesh Kumar has stated that the complainant was chased by the respondent. It has further come in evidence of the complainant that there were a number of persons present in the Kutia and also near the Kutia. But they were not examined. Taking into consideration these inconsistencies and more especially the fact that assault has not been proved, independent witnesses having not been examined, the respondent was acquitted. 3 6. I have gone through the evidence of these witnesses and cannot persuade myself to hold that appellate Court has reached at a conclusion which cannot be said to be established on record from the evidence of these witnesses as also the complainant. Assaulting a public servant is one thing but there is nothing on record to establish that such assault did infact take place. Further, inconsistencies in the testimonies of both the so called eye witnesses that either the respondent attempted to beat the complainant or he was chased by the respondent cannot be reconciled. There is no explanation as to why independent witnesses present in Kutia or near the Kutia had not been examined. It is an admitted case of the prosecution that there were number of persons present in Kutia who were not examined. 7. There is thus no merit in this appeal, which is accordingly dismissed. Bail bonds furnished by the respondent are discharged. August 3rd, 2010 (Dev Darshan Sud) (ms) Judge