Shrl R P Tnpatha counSAl for the annellants m. . . ark“; Sé‘r w PL fa he respondwJ/St CRIMINAL APPEAL UNDER SECTION 37g2) QF THE CODE O vl\!n5lhIAl DRf'H"€r\l IDE wun‘i (ORAL) JUDGMENT “1R O 0nf\n\ \ u ugvvv, This appeal is directed against the judgment of conviction and order [:1 of sentence dated 6.2.2008 passed by the Special Judge, Rajnandgaon. in ‘ Sessions Case No. 48/2007 convicting the accused/appeiiants for the offences punishable under sections 294 and 323/34 of the Indian Penal Code and sentencing them to fine of Rs. 200.00 each. in default of payment of fine to further undergosimple imprisonment for seven days uls 294 and to pay fine of Rs. 300.00 each. in default of payment of fine to further undergo simple imprisonment for seven days u/s 323/34 IPC. 2. The judgment of the trial Court is challenged on the ground that without there being an cogent and reliable evidence against the. y \f ‘o " , . I‘SB: Han.’ble>Mr.T.P.$hatmaJJ; Criminal Appeal No. 446. of 20.08 ’ APPELLANTS 1. Daval Das Sahu son of Shn Fooi Smqh .¢ .4 In §=§ Ann—- \JGI IU Q33“ “HUM". UL yc¢l§ 2. M das Sahu son of Shn Fool Smuh Qehu run-l ah wk KG uAare val u 5 uvvu‘ ycano ‘ 3. Sandeep Sahu son of Shri Dayaldas Qnhu nru-m! ul-u‘. § 4 “Ann- VEIIH a8 “UVUL IU yGal¢ AII are residents of vinage Pangarikata: Rs. Dongargacn , Dis€$ict Rainandgaon x4 (CG) VERSUS RESPONDENT smte of Chhétiisgarh through the Distriat Maistrate, Rainancigaan, Districi Rajnandgaon (CG). accused/appellants; IearnedSpecial Judge has committed an illegality in convicting and sen'tencing the accused/appellam§ as mentioned above. 3. Case of the prosecution in brief is that on 9,4.2007 at about 9 a.m_ when accusedlappellants were digging the land for construction of the house, complainant Nizam Sai and his brother Shyam Sai obstructed, At the same time accused Dayaldas and his sons Sandeep and Sudhir alone with other persons insulted the complainant hy using obscene words in the name of their caste and also caused simple hurt Complainant Nizam Sai lodged the First information Report Ex, P—‘i on the same day. One crow bar was seized vide Ex. P-2‘ Caste certificate Ex. P-4 was seized from the complainant vide Ex. P-3. Complainant Nizam Sai, Hitvesh. Gvatri Bai were medically examined vide Ex. P-5 to P—8 and the doctor who examined them opined that the injuries were simple in nature. Spot map Ex. P—9 was prepared. Accusedlappellants were arrested vide Ex. P—10 to P—13. 4. After completion of investigation charge sheet was tiled against the accused/appellants before the Judicial Magistrate First Class who committed the case to the Court of Special Judge, Rajnandgaon. where trial commenced. 5. ln order to prove the guilt of the accused/appellants. the prosecution has examined ’as many as 9 witnesses. Statements of the accused/appellants were recorded under section 313 of the Code of Criminal Procedure in which they have denied the material appearing against them in the case of the prosecution and pleaded their innocence and false implication in the case. Accusedlappellants also examined Dr. K.K. Ramteke DW—1, Smt. Neeta Sahu DW-Z and Netram DW—g in their defence. Dr. Ramteke (DW-1) has stated in his evidence that all the three accused persons received injuries vide medical reports Ex. D—6 to Ex. D-8. 6, After giving opportunity of hearing to both ihe parties Ieavrned Special Judge, has convicted and sentenced the accused/appeliants as mentioned above. 7, Heard counsel for the parties and perused the material available on record inciuding the judgment impugned. 8. It is argued on behatf of the accusedlappeiiants that the accusedlappellants were in possession of certain land and dispute regarding the same was going on between the accused/appellants and the comptainant for last 2O years. Complainant party came with crow bar and pick axe and assaulted the accused/appellants with an intention to dispossess them from the land in question. He further submitted that the appellants have not committed any offence and have been falsely implicated in the case. 9. Qn the other hand impugned judgment is supported on behalf of the respondent/State. 1D. In order to appreciate the contention of the parties i have examined the material available on record. 11. As regards the conviction of the accusedlappellants under section 294 of the Indian penal Code, Sam Sai (PW-2) and Ramduiari.(PW—3) have stated in their evidence that accused lappellants used the word "matherchod'. 0nly Motital (PWA) has stated that the accusedlappeliants used the word “Tor Dai La“ buthe has not stated it in his police statement Ex. D—2. Thus, the word ‘h-Iatherchod" which is said to have been used by the accused/appellants: is of no significance as far as obscenity is concerned and therefore, they cannot be convicted under section 294, of the Indian Penal Code. 12. As regards me question of causing hurt, Nizam Sai (PW-1), Sam Sai (PW-2), Ra‘mdulari (PW-3), Motilal (PW—4), Gayafribai (PW—5), Shyamu (PW-6) and Makhan (PW—7) have stated that the accused/appellants were digging the land for construction of the house; compiainant party obstructed the same and started quarreling with them. Howeven in their cross examination they have admitted that there was land dispute between the comptainant party and the accused/appellants, At the time of incident there was a wail which was constructed by the accused/appeilantsr Compiainant party went to the spot with crow bar and other instruments for demolishing ‘the wail and then the incident took place, lt‘ clearly shows that the accusedlappellants were in possession of the land and complainant party tried to grab the possession of the Same from them which led to quarrel between the parties in which complainant party received simple injuries. Dr. Ramteke (DW—1) has stated that the accused/appellants also received simple injuries. lt is clear from the record that the complainant party received I injuries while interfering with the possession of the accused/appellants. Complainant party had no right to interfere with the possession of the accused/appellants. Even if it is accepted that the accused/appellants assaulted the complainant party, it was in the exercise of their right of private defence. 13. Learned trial Court has not considered the fact that the complainant party was the aggressor and tried to grab the land which was in possession of the accused/appellants: and has arrived at a wrong conclusion convicting and sentencing the accused/appellants under section 323/34 of the lPCt 14. Consequently: the appeal is allowed. Judgment impugned is set aside. Accusediappellants are acquitted of the charges leveled against them. Fine amount if deposited: shall be refunded to them. i“ Sd,_ f ‘ T.P. SHARMA l Judge \