O.P.Mahajan, Labour Inspector vs State of Punjab and anr.

Ujagar Singh, J.

The petitioner was convicted u/ss 352/504, Indian Penal Code but released on probation on his furnishing personal bond in the sum of Rs. 1,000/ with one surety in the like amount, for a period of six months undertaking to appear and receive sentence as and when called upon to do so, and also not to commit a breach of peace or do any act that may occasion a breach of peace; and be of good behaviour during the said period. The petitioner filed an appeal before the session court and after hearing the parties, the petitioner was acquitted of the charge u/s 504, Indian Penal Code, on the ground that the extract words constituting the abuses or the insult were not given as in the view of the appellant court, the term abusive language is very elastic and of wide import, and the words falling within the ambit of the term do not always amount to an insult. However, the conviction and sentence passed u/s 352, IPC was maintained. The petitioner has filed this revision challenging his conviction and the order of sentence.

Counsel for the petitioner has vehemently argued that in the complaint or the statements of the witnesses, the only allegation is that the complainant was assaulted; and as to in what manner or by what act or acts was he assaulted is totally lacking.

I have heard the counsel for the parties, including the counsel for complainant, and gone through the evidence with the help of the counsel.

The word `assault'' his defined insection 351, Indian Penal Code, and for making out the offence under this section, the prosecution has to prove any gesture or preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person. Explanation to this section says that, eemere words do not amount to an assault But the words which a person uses may give to his gesture or preparation such a meaning as may make those gesture or preparations amount to an assault." In the complaint, it is stated in para 3 thereof that after attending to the case pending in the court at about 10.30 AM on the day of occurrence, when the complainant came out of the court the accused followed, him and committed an assault on him, showering obscene abuses on him, with a view to provoking the breach of peace It is further alleged that the accused would have criminally manhandled him but for the timely intervention of PWs The statement of the complainant in preliminary proceedings too repeats these allegations but in both the complaint and the statement, it is not mentioned as to how this assault was committed. In the statement of PW 2 as a preliminary witness. I find that the story of the prosecution has not been supported so as to bring the offence within the ambit of section 352, IPC. This witness stated as follows :

"Thereafter both the parties came out and the accused pounced upon the complainant and gave him filthy abuses "

PW3 Avtar Singh has stated that after coming out of the court, the accused gave filthy abuses to the complainant in the name of the mother and sister. During the trial the complainant, appearing as PW1, however, added the allegation that after coming out of the court room, the accused caught hold of him by his shoulder whereas PW2 Kartar Singh stated that after coming out of the court room, the accused showered filthy abuses on the complainant and further he was trying to catch hold of the complainant by neck.

After scrutinizing the case, I am of the view that merely alleging the assault without mentioning the facts constituting the assault does not bring the case within the ambit of assault as defined by section 351, IPC. It is for the court to appreciate the evidence on facts to find out if the offence of assault is made out or not It is neither for the complainant nor the witnesses to state that the acts committed by the accused amounted to assault. The duty of the prosecution is always to prove the facts and not to arrive at the conclusion by themselves In this situation, I am of the opinion that the offence u/s 352 IPC is not made out in the present case simply because the prosecution witnesses state that the accused assaulted, the complainant Counsel for the complainant, as also the State counsel, have laid great stress on the fact that the mere allegation that the accused assaulted the complainant is enough to bring about the offence u/s 352, IPC. They also stressed the point that filthy abuses were hurled by the accused, and read with that the offence u/s 352 IPC was clearly made out. I am afraid this argument has no force, The use of the filthy abuses constituted the offence u/s 504 IPC only for which the petitioner has been acquitted by the session court on the ground already stated.

In view of the foregoing discussion, this petition is accepted, the order under revision is set aside and the petitioner is acquitted of the offence.