IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 550/2004 Date of decision: 26.7.2011 State of H.P. …..Appellant Versus Kartar Chand ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes For the Appellant: Mr. A.K. Bansal Addl. Advocate General. For the respondent : Mr. M.S. Guleria, Advocate. Surinder Singh, J. (Oral) The acquittal of the respondent is in question in this appeal filed by the State, for the offence punishable under Section 353 Indian Penal Code registered in terms of FIR No. 12/2002 dated 21.3.2002 in police Station Lamba Gaon. 2. Heard and gone through the record. 3. Respondent was put on trial on the allegations that on 21.3.2002 PW1 complainant Tarlok Chand being Pradhan of the Panchayat was 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - receiving the old ration cards of the villagers and in lieu thereof, he was issuing new. The said work was going on in ‘Panchayat Bhawan’. At that time about 37 ration cards were to be replaced. Around 11.45 a.m., respondent reached in the Panchayat Bhawan and put a demand to the complainant to return his old ration card but the Pradhan told him that his new ration card was already handed over to one Tilak Raj by retaining the old one. On this, respondent became adamant and he tried to pick- up his ration card from the table of the Pradhan. In a bid to stop him, the complainant was caught hold of by the respondent from his neck and fisticuffed him. In the process, the old Ration card got torn. Thus, the complainant reported the matter to the police. His statement under Section 154 of the Code of Criminal Procedure was got recorded which culminated into FIR Ext. PW5/A. 4. The Police investigated the matter, prepared the site plan of the place of the alleged incident and took into possession the torn ration card vide memo Ext. PW4/A. During the investigation, police also took the copies of the notifications Ext. PA to Ext. PC showing that the complainant was elected as Pradhan. - 3 - 5. After recording the statements of the witnesses and completing the investigation, challan was presented in the court for the trial of the respondent. 6. Respondent was tried, chargesheeted and acquitted of the offence precisely on the ground that the prosecution failed to prove that the respondent had assaulted the complainant so as to deter him from discharging legal/statutory duty or while executing his duties as such public servant. 7. Legally, to prove the charge under Section 353 Indian Penal Code it is incumbent upon the prosecution to prove the following ingredients of the offence:- (i) There must be assault or use of criminal force; (ii) Such assault or use of criminal force must have been made on a public servant, and (iii It must have been on a public servant- (iv) While he was acting in the execution of his duty or, (v) With intent to prevent or deter him from discharging his duty, or (vi) In consequence of anything done or attempted to be done by him in discharge of duty. 8. Thus the public servant must be acting in execution of his duty or must be discharging his statutory duty as a public servant. The execution of - 4 - the duty is the sine quo non for the application of the aforesaid Section. 9. In the instant case, prosecution has not brought on record any document that complainant Tarlok Chand was acting in discharge of his official duties. The notifications aforesaid only proves that he was Pradhan of the Panchayat concerned at that time. There is nothing on record to show that it was his duty to replace the old ration cards by issuing new ration cards to the cards holders. If the respondent demanded back his old ration card, the complainant was not justified in withholding the same. Even the proceedings Register of the Panchayat and the details of the ration cards which were required to be replaced did not find light of the day in order to prove in which capacity the complainant was authorized to discharge the aforesaid work which, initially was with the Secretary of the Panchayat. Even Investigating Officer has clearly stated in his cross examination that he did not take into possession any document to show that the complainant was discharging any official duty under any authority on the relevant day. 10. The complainant appears to be nourishing grudge against the respondent. In cross examination - 5 - he admitted that respondent had already filed a complaint to the Deputy Commissioner concerned with respect to embezzlement of the amount against him. Further that the respondent was also a rival candidate of the complainant in election. Therefore, all these facts go to show the motive behind the case against the respondent and further the warp and woof of the prosecution case is not met from the evidence on record. Therefore, the acquittal of the respondent cannot be interfered with. 11. The appeal sans merit and is accordingly dismissed. 12. The respondent is discharged of his bail bonds entered upon by him, at any time during the proceedings of this case. July 26, 2011 (Surinder Singh), (cm) Judge.