Appellants HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLESHRI R.N. CHANDRAKAR., J CrimlnalAppeal No. 1541of2000 Ishwar andanother 1 Vs. Respondent TM6 Stateof Chhaftisgarh. FOST FOR PRONOUNCEMENT OF JUDGMENT r Sd/- .^&-11-20C»' Sd/- R.N. Chandrakar Judge >f Jis '\ ';-1' if >lllll ]" HIGHCOURTOFCHHARTTISGARHATBILASPUR CriminalADDeal No. 1541 of 2000 Appellante Respondent 1)' Ishwar, Spn of Ramkisan Dubey, aged about 23 years, resident of Shantinagar, Bhilai -3, Tahsil and District Durg, MP. 2) Mukesh Agarwal, son of Chaturbhuj Agrawal, resident of Bajrangpara, Bhilai -3, Tahsil and District Durg (CG). Versus State of Chhattisgarh (Appeal underSection 374 (2)ofCode OfCriminal Procedure, 1973) S.B:- Hon'ble ShriJustice R.N. Chandrakar Preseiit: Shri M.D. Dhote, counsel for the appellants. Shri RakeshJha, Deputy fprtheState. JUDGMENT (Delivered on this li +k dayof November,2009) 1 • \. /. '. - . .. This appeat is directed against the judgment of conviction and order of sentence dated 10-4-2000 passed by the tearned Special Judge, Durg (CG) (constituted under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989) (for short, "the Act") in special case No. 235 of 1997, whereby the appellants have been convicted under Section 294 of IPC and sentenced till rising ofthe Court and fo pay fine of Rs.500/- each, in default of paymentof fine, to uridergo S.l. fpreightdays. (2) The case of the prosecution, in brief, is that thehouses of the complainantand the appellant No.2 are adjapent. On 2-6-1997 at about10.45 a.m. the complainantwas preparing some item from cow-dung in her house and dirtywateF Goming oyt from the septic tank of appellantNo.2 was flowing to fhe courtyard ofthe complainant. Atthe same time, the appellants standing on the roof of appellarit No.2, were applying "Manjan" and spitting on the 181; -^ complainant tp whichshe objected. On_this, the appellants got down from the roof and abused the complainant by using filthy 'language. They also threatenea her tokill. The appellant No.1 caught hold of her hahds whereas the appellant No.2 slapped her. The complainant cried for help and the matter was intervened by her neighbours. Thereafter, the reportwas lodged in Police Station, Old Bhilai ahd the matterwasihvestigated. (3) After completiQn of investigation, the charge sheet was filed in the Special Court and the learned Special Judge framed charges against the accused/appellants under Section& 3(i)l(x) of the Act and 294 , 323 & 506-B of the IPC. After recording the evidence ofwitnesses, the statements of the accused/appellants were recorded under Sectiori 313 of Cr.P.C in which, they deniedthe cireumstances appearing againstthem and pleaded innocence and false implication. The learned Special Judge, after due triat;^cQhvicted and sentenced the accused/appellants as mentioned in para 1 ofthe judgment. (4) Learned counsel for the appellants submits that the trial Court has failed t ^ • to appreciate the evidence in its prope^ legal perspective. The conviction recorded and sentence awarded by the learned Special Judge under Section 294 ofthe IPC is contraryto thefacts availableon record. Learned counselfor the appellants furthersubmits that the complainant is a coal thiefand for that she was prosecuted beforethe Railway Magistrate and had not given the correct name of her husband in that case. A criminal case was also pending against Rajan Bai before the Judicial Magistrate, Durg, on the report of appellantNo.1 Ishwar. The appellant No.1 Ishwar is ajournalist and many times he published the news in his local newspaper "News Creation" that Rajan Bai (complainant) theftiron scrapesfrom Railway andotherplaces. She admitted in her statement before the trial Court that the father ofappellant no.2 had lodged a report against her for breaking the septic tank of appellant No.2 Mukesh Agarqawal and many times they had quarreled over it. Sheobtained a false certificate of Scheduled Caste justto prosecute the appellants underthe •:-:-!-^•^F'^'m7^;^^? B:! <-1 Act. The trial Court disbelieved hertestimony for conviGting the appellants under Section 323 and 506-B offhe IPC & under Section 3 (1)(x) oftheAct. No independent witness has'supported the prosecution case. The trial Court misappreciated the evidence and came to the erroneous conclusion. The trial Court should have held that there isno evidence to convict the appellants under Section 294 of the" IPC. Thus, considering all the facts and circumstances of the case, the impugned judgment of the trial Court be set aside and the accused/appel]ants.|;>e acquitted ofthecharge. (5) Percontra, learned Panel Lawyer for the State argued in support ofthe impugned judgment. (6) Having heard learned counsel for the parties,! have perused the record of the trial Court as also theTmpugned judgment. The prosecation in order to prove the guilt against the accuse(j,examined seven wjtnesses and the appellants examined 1-lridayram Verma in their defence. The ease of the prosecution rests on thetestimonies ofTribhuwan Mishra (PW/1), Rajan Bai < ^ (PW/4) and Ramdut Tiwari (PW/6) who turned hostile. \ 7 ^ (7) On peFusal of the impugned judgmentand the testimonies of the complainant Rajan Bai (PW/4)and Mangal Dalthethe (PW/3), it is manifestly clear that the complainant obtained hercaste certificate by producing wrong facts and concealing heroriginal castewhichshows her malafide intention and proves her conduct to be mischievous. The trial Court finding the caste certificate of the complainant to be false and looking the contradictions and omissions in the testimonies of complainant Rajan Bai (PW/4) and Tribhuvan Mishra (PW/1) regarding commission of marpit by the appellants with the complainant,acquittedtheappellantsfromthecharges underSection 3(i)(x) of the Aet and under SectiOn 323and 506-Bofthe IPC. (8) Rajan Bai (PW/4) stated in.her deposition that on the date of incident at about 11.30 a.m. when she was preparing some item from cow dung ih the lane in frontof her house, dirty water from the septic tank of appellant No.2 <tt:,II !B) s iitii <? started flowing near thegate of her house towhiGh she objected. Onthis, the appstlant No.2 said that the water of his septie tank was flowing from drain and he would neither stop nor clean the same. She furtherstated that both fhe appellants were standing on the roof from where they abused her by saying "Charririn, Madharchod" and when they gotdown from the roof she asked them why they were abusing her by caste. On this, appellant No.2 pushed her from the baokside on the pretext that she always quarrels with them. Immediately thereafter, she rushed to the PoliiSe Statioh where she narrated the incident to Police and stated that the inciderit was witnessed by Ramdyt Tripathi (PW/6). She further deposed^that at the time of incident Anshu Thakur and Tribhuwan (PW/1) were also presentthere. She admitted herwritten report Ex.P/3 and stated fhat she wassent for medical examination. (9) In her cross exanlination sti'e admitted that the repSrtwas reduced in writing by Tribhuvan Mislira (PW/1) and her statementwas recorded twice by the Police. She also admitted that she was prosecuted before the Railway Magistrate in which she was punished'till rising ofthecourtwithfineQfRs.100/. The appellant No.1 was a joumalist whoused to publish the news against her regarding theft of iron scrapes from Railway. A criminal case was pending in the courtof JMFC filed by the appellant No.1 against Tribhuwan (PW/1), Anshu Thankur and Ramdutt (PW/6). The appellant No.1 was standing on the roof of the appellant No.2 and did notget down. It was also admitted that several repdrts regarding breakage of theseptic tank against her were lodged by Chaturbhuj (father ofthe appellant No.2) and the news regarding theft of iron scrapesand coal were got published through appellant No.1 in the newspaper by appellant No.2. She also admitted that the report Ex.P/3 was g&t reduced in writing in Police Station itself at the instance of Inspector Shukla. She also admitted that a criminal case was pending against her, her husband and her son regarding committing criminal trespass and marpit with appellant No.2 and tiis mother by them in which they were released on bail. She also •^•-^^SS&^ ^' admitted that she was facing trouble due to septic tank of Chaturbhuj, father of ^ the appellant No.2, otherwise, she would not have filed the complaint. Thus, Ipoking to the mischievous conduct of this witness and discrepancies in her testimony on material point, the witness cannot be held reliableor trustworthy. 10) PW/1 Tribhuvan Mishra, stated in his deposition thaton the date of incident hewas in the house of Ramdat Tripathi (PW/6). On hearingthe noise Goming from the houseof-the complainant Rajan Bai (PW/4), he went fhere alongwith Anshu Thakur (not examined) and Ramdat Tripathi (PW/6) and thereafterthey intervened in the matterwhe.reas Ramdat Tripathi (PW/6)turned — hostile and stated that he came out of his house after the incident was over. Thus, the version of Tribhuvan Mishra is not supported by Ramdat Tripathi (PW/6; and becomes doubtful. On evaluation of the testimony of PW/1 Tribhuvan Mishra, it is evident that there was enmity betwee hirri and the appellants as adraitted by;him in para 6 and 11 of His deposition. He also admitted that the written report (Ex.P/3) was written by him on behalf of the 1 - ' complainant, He admitted in para 16 that ,other personswere also watching the incident frbrrrtheir houses but none of them was cited or examined as prosecution witness. Looking to theenmity between him and the appellants the witnessappearstobeaninterestwitnessand histestimonybecomesdoubtful. 11) Thus, on evaluation ofthe testimonyof thecomplainant, itisclearthat there are contradictions and omissions in her deposition. For proving a case under Section 294 of thelPC the proseGution is obliged to show thal to the annoyance of the complainant or others, the aecused did some obscene acts in any public place. In the present case, the place of incident is not clear as the oomplainant Rajan Bai (PW/4) in her deposition, has nowhere mentfoned the placewhere the incident took place whereas from the depositions of Tribhuvan Mlshra (PW/1.) and R. G. Rohi (PW/7), Investigating Officer, the place of ineident appears to be thecourtyard ofthe house of the complainarit whiQh is also evident from herwritten repprt (Ex.P/3). Ifit is so, it cannot be treated as public place. SofaraSi "to the annoyanceof others", is concerned, the complainant mentioned the presence ofAnshu Thakur (not examined) and Tribhuvan Mishra (PW/1) at ttie time of incident whereas Tribhuvan Mishra (PW/1)in his deposition, mentioned the presence of another person namely Ramdat Tiwari (PW/6) who turned hostile and not supported the case of the prosecution. Itis clearthafonly'the depositionof Tribhuvan Mishra(PW/1)is available for corroborationof the evidence of the complainant but there are material contradictions and omissions.iin the testimonies ofcomplsiinant Rajan Bai (PW/4) and Tribhuwan Mishra (PW/1) regarding commission of maripit by the appellants with the complainant as also manner in which the incjdent took place. Thus, in the absence of corroboration ofthe prosecutionstory by any indepeiident witness, it cannot be held thatthe accused did some obscene acts in any public place to the annoyance pf bthers. .<•_ 12) On the aforesaid discusston and going through the records, l find that there was enmity between the parties regarding publishing the news of theft / ' , ' . : against the complainantwho was punished in theft case and one criminal case \. " ' ' ' was pending agaiRst the family of eomplainant regarding commission of marpit with appellant No.2 and his mother. It is also found that the complainant obtained false caste certificate (Ex.P/2) from the Sarpanchof village Motipurkala by concealing the name of her father. There was also enmity between the appellants and Tribhuvan Mishra (PW/1) who was the only witness pftheincident.It is needless tosay that the appellants hgve been falsely implicated in the case due to enmity. 13) Having considered all the facts and circumstances of the case and taking into over all evidence available on records, 1 am of the considered bpinion that the prosecution 'has failed in bringing home the guiltagainst the appellants. , • 14) For theforegoing, this appeal deserves to beand is accordinglyallowed. -, The impugned judgment of the trial Court is set aside and the appellants are tfe . ^ acquitted 6f the charge under Section 294 of the IPC. The fine amount depQsited by the appellants be refunded tothemforthwith. 1 " sd/'. i R.N. Chandrakar Judge Raju