rt'OJOj-'-OiSW 8 -•'"^B §*Q '^fe' ''n'o".ffl rt o!», [»'^-;'i-i.,f3,(ai,^,'? ?'-S:,NK*S::@i»i'i t-'3f'^ fiW&^' LiBvi-':f-? ;°: s'^^s:^,. ft- tfl v.ft M sy y^li ^KS ,£'s"ll"1^11;p' ,i5.,S:f^l"m;®:[i-: !&t;i'l:^t % w ^' y^j^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Cr.A. No.734 of 1996 Mishri Lal. V/ersus State of Madhya Pradesh. JUDGMENT' Postfor O^-OS-2011 Sd/- Prashant Kumar Mishra Judge Z[ HIGH COURT OF CHHATTISGARH. BILASPUR Cr.A. No. 734 of 1996 APPELLANT RESPONDENT Vsi 'Areisc* Mishri Lal State of Madhya Pradesh. Smt. Indira Tripathl, counsel for the applicant. Shri Pradeep Singh, Panel Lavvyer for the State. JUDGMENT {09/Q9/2Q11} Prashant Kumar Mishra. J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 13/04/1996 passed by the Spe.cial Judge, Raipur, in Special Case No.35^6 whereby tearned Special Judge, after holding the appellants guilty under Section 3(1)(x) and 3(1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.1989, sentenced him to undergo R .1. for six months and to pay a fine of Rs.500/-, in default of payment of fine to further undergo 8.1. for 3 months, respectively. The appellant has also been convicted under Section 294 of the IPC and sentenced to undergo S.l. for 1 month. Sentences were directed to run concurrently. 2. PW-2 Rukhmani Bai lodged a report at about 07.20 p.m.on 03/04/1992 alleging that at about 03.00 p.m. accused Manoj Dewangan was trying to remove electric bulb friom the temple in front of her house and on being asked to not to indulge in such activity said Manoj along with his father Mishrilal Devangan (Appellant) abused and hymiliated them. Manoj came inside the house with a lathi and assaulted her. 3. The prosecution examined seven witnesses including RA/-2 Rukmani Bai, R/V-3 Ku. Ramkunwar, PW-4 Ku. Laxmi and PW-5 Sohan. 4. On the basis of statement of w'tnesses the trial Court has convicted the appellant who is now aged about 74 years. 5. Learhed counsel for the appellant, woutd submit that offence under _ Section 3(1)(>0 and under SecUon 3(1)(xi) of Scheduled Castes land Scheduled Tribes (Prevention of Atrocities) Act.1989 (hereinafter referred 'v' to 'the Act') are not made out as the alleged incident, even tf found to be proved, has taken place inside the house and not in a public place. She would further submit that offence under Section 294 of I.P.C. is also not proved and in any case the appellant having remained in jail for some days he deserves appropriate reduction in sentence. 6. Leamed State counse! has opposed the prayer and has submitted that the appeal deserves to be dismissed. 7. Under Section 3(1)(x) of the Act, a person is said to commit offence when he intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. And under Section 3(1)(xi) a person would be committing offence when he assaults or uses force to any wdmen belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or outrage her modesty. 8. To bring home the charge under Section 3(1)(x) the prosecution is required to prove that the piace where the insult or intimidation has taken place was within public view and that it was made with intention to humiliate. PW-2 Rukhmani Bai admits in para 6 of her cross-examination that the accused persons have insulted her and her daughters inside the house. Though this witness further says that the accused entered the house while abusing, however, from the evidence it would cfeariy appear that they are neighbours and both the houses are separated by a common un-plastered boundary wall. PW-3 Ku. Ramkunwar alsoadmits in para 2 of her cross-examination that the appeltant insulted them inside the house. Similar is the statement of PW-4 Ku. Laxmi in para 2 of her cross-examination. Thus, the statement of witaesses is very clear that ttie appellant and his son Manq insulted themafter entering into the hous®. 9. In the matter of Swarn Singh and others vs. State through Standing Counsel and another reported in (2008) 8 SCC 435 it has been h^ld thus in para 27 and 28:- "27. Learned counsel then contended that the alleged act was not committed in a public place and hence does F not come within the purview of Section 3(1)(x) of the Act. tn ''•^ 10. this connection it may be noted that the aforesaid provision does not use the expression "public place", but instead the expression used is "in any place w'thin public view". In our opinion there is a clear distinction between the two expressions. 28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appeltants 2 and 3 (by calling him a "chamaQ when he stood near the car which was parked at the gate ofthe premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the afleged offence been committed inside a buiteting, ancfalso was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a buikling, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public ptace". A place can be a private place but yet within the public view. On the other hand, a public vrould ordinarily mean a place which is owned or leased by the Government or the municipalify (or other local bocfy) or gaon sabha or an instrumentality of the State, and not by privatepersonsorprivatsbodies." ! • 1 In the light of pronouncement made bythe Hon'ble Supreme Coyrt it? the above referred judgment Swam Singh and others vs. Stat|6 through Standing Counsel and another <sypra) this Courtshall ncw? scrutinize the evidence to find out whether the place where ffli^ appellant huried abusive language was a place within public yiew jaf not. In para 6 of her cross-examination RA/-2 Rukhmani Bai hasis^id '•'\". that the appellant abused her inside the house. She also admits th^t ^ r^ ^ ' i', N ij^ :1'; N li:: 4 11 houses of Baliram Master and Soman Dewangan are situated nearby, however, these two persons did not come to the place and neither these persons have been examined as witnesses. In para 7 she says that the accused abused her in the courtyard (Aangan). PW-3 Ku. Ramkunwar is the daughter of PW-2 Rukhmani Bai. In her examination-in-Chief she says that the accused came inside their house and abused them by mentioning their caste. In para 2 of the cross examination she again says that abuses were hurled inside the house. Similar is the statement of RW-4 Ku. Laxmi, who is another daughter of PW-2 Rukhmani Bai. She has also stated in para 2 of her statement that when the incidenS took place the accused was inside the house. Presence of PW-6 Sukhbati Bai has been mentioned by RA/-3 Ku. Ramkunwar. This witness, namely PW-6 Sukhbati Bai has turned hostile. Though, she had witnessed oozing of blood from the forehead of Rukhmani Bai but she has denied that she had also heard the accused abusina the complainant. PW-7 Dr. R.H. Mishra has examined the complainant Rukhmani Bai and found simple injury on herforehead and right hand. From the above reproduction of the material part of the statement made by the prosecution witnesses it would cleariy appear that the place where the incident took place and the appellant huried abuses on the complainant was inside the house. Thus, drawing support from the observation made by the Hon'ble Supreme Court in para 27 and 28 of the judgment in the case of Swarn Singh and others vs. State through Standing Counsel and another (supra) this Court would hoid that since the place where the incident took place was inside the house and was not within the public view, offence under Section 3(1 )(x) of the Act is not made out. However, at the same time it is proved that the appellant has caused simpte in.iury to complainant Rukhmani Bai which has been proved by the complainant herself and by Dr. R.H. IVIishra (PW-7) who examlned the complainant on the date of incident. Thus, even if charge under Section 3(1)(x) of the Act is not proved, the appellant would be guilty of committing offence under Section 323 of I.P.C. for causing simple hurt to the complainant. ^ ^ <m ^ s^ y^ ?7 n '^) 5 12. With regard to the offence under Section 3(1)(xi) of the Act, 1989 it is to be seen that the said provision is an aggravated form of an offence which primarily falls under Section 354 of I.P.C. Therefore, it is required to be seen as to whether in the facts and circumstances of the case the accused should be convicted under Section 3(1)(xi) of the Act or under Section 354 of I.P.C. 13. In the matter of Vidyadharan vs. State of Kerala reported in (2004) 1 SCC 215 it has been held thus in paragraph 10 of the report (only relevant part extracted):- essirt' "As rightly observed by the.Courts below, Section 3(1)(xi) of the Act which deals with assaults or use of force to any woman belonging to a Scheduled Caste or Scheduled Tribe with the intent to dishonour or oufrage her modesty is an aggravated form of the offence under Section 354 IPC. The only difference between Section 3(1)(xi) and Section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to a Scheduled Caste or Scheduled Tribe, Section 3(1)(xi) applies. The other difference is that in Section 3(1)(xi) dishonour ofsuch victim is also made an offence". Thus, if the modesty of a woman betonging to Scheduied Caste and Scheduled Tribe category has been outraged and has been dishonoured, the offence would fall under Section 3(1)(xi) of the Act, howeyer, in the present case though the evidence clearly establish that the appellant has outraged the modesty of PW-2 Rukhmani Bai, it is not proved that the same was done to dishonour the woman because the act was not committed within public view. Thus, in the opinion of this Court, in stead of convicting the appellant inder Section 3(1)(xi) of the Act, 1989, he deserves to be convicted under Section 354 of I.P.C. for outraging the modesty of PW-2 Rukhmani Bai. ?> If) '^ "••<:•' 14. The appeilant has also been convicted under Section 294 of I.P.C. From the statement of PW-2 Rukhmani Bai, PW-3 Ku. Ramkunwar and PW-4 Ku. Laxmi it has been proved that the appellant has abused and used obscene language atthe time of incident. His conviction under Section 294 of I.P.C. is fully proved on the basis of evidence on record. The said conviction is maintained. Thus, the appellant is held guilty ofcommitting offence under Sections 294,323 and 354 of I.P.C. 15. According to the learned counse! for the appellant the appeilant has remained in jail for about 15 days. Though this statement is not verifiable from the record, however, in the order-sheet ofthe trial Court recorded on 25/05/1992 it is mentioned that the accused is on bail thus it appears he has remained in jail for some days, therefore, keeping in view the fact that the incident has taken place about more than 19 years back i.e. 03/04/1992 and at that time the appellant was 54 years of age and thus presently he is 73 years of age, this Court deems it proper to reduce the jai! sentence to the period already undergone and instead direct him to pay a fine of Rs.10,000/- which shall be paid to the complainant Rukhmani Bai under Section 357 of Cr.P.C. If the appellant fails to deposit the amount of Rs.10,C»0/-he shall undergo additional sentence of Rl for one month. The appellant shall appear before the Chief Judicial Magistrate, Dhamtari on this date 16/11/2011 for payment of amount of compensation to the complainant and on his failure to do so he shall be taken into custody and sent to jail for servins sentence of Rl for one month. Sd/- Prashant Kumar Mishra Judge l< - \