HIGH COURT OF CHHATTISGARH AT BILASPUR CRA* NG. 1317/ 1999 SB : Hou’bie Mr. T.P. Sharma, J. APPELLANTS Vi‘nhushan @ Ramb‘nushan Tiwari, Sia. Rajkai‘aa Tiwai‘i, agcai 22 yéai‘s, r10. Village Bihata; Tha11a Govindgarh; (Raria) at present Ilamalpara, Kharsiya, Distt. RaipmiMP) RESPONDENT State of Madhya Pradesh} Through the Dishict Magistrate, Raigarh (MP) APPEAL UNDER SECTION 3'74 OF THE CR.P.C. Plesent : Shri U.K.S.Chandel, counsel for the appellant. MS. Sangsata Mishra, Panel Lawyer for the Stats. (Passe&?m 28g§£1§,R2008) This appeal is dimctad against the: judgment of conviction and ordar of senmnce dated 15.4.1999 passed hy First Additional Sessions (Special) Judge; Raigarh in Special Case No. 20]95 wherehy learned Special Judge has convicted the appellant for the offence pnnishahle under Section 294, 323 of the Indian Penal Code and sentenced with a fine of Rs. 500/ -, respectively and in default of payment of fine to further undergo RI for two months in each offence and under Section 3 (1)(Xl) of the SC/S’l‘ Prevention of Atrocities Act, sentenced to undergo RI for six months. 2. Today; the case is fixed for appearance of the accusedjappellant who is absconding and also on LA. No. Olj2008, application for cancellation of the arrest warrant issued against the appellant by Station House Offiocer, Police Station Kharsiya. ’% v Mr. J.R.Singh, S.l—l.(). Police Station Kharsiya and Mr. Y.N.Dnhey, Sub Inspector are present. They filed a report that appellant is not residing at the address given therefore, they were unable to arrest the appellant. 4. The aypellant is pmsent with hn' U.K.S.Chande.L Ativncate. Learned counsel for the appallant submits that in order to coply with tha order dated 7.7.2008; the appdhnt is ‘pmsent. Hta also submits that warrant of arrest issued against him recalled undcr Section 70 of the Coda of Criminal Procedure, 1973 and ha is ready to are th cso finally. 5. With e const ofthe parties, the matter is heard finally. 6. Judgment imyugned nd records of the trial Court pemsed. 7. lt is argued on behalf of the appellant that there was a disute rearding payment of wages. The appellant has neier tried to outrage th modesty of the complainant knowing that she belongs to schedule caste nor committed any offence but thout any credible evidence, tial C e n ourt has convicted and sntenced the aypellant as aforemetioned. . On the other nd judent of th tria Cou is prted o behalf of the State. 9. Accordin to the cas proseution; P.W.-1 Nanki Bai who is hy caste, satnam {scdule caste while returning fro the lace of incident, along Wit her son; near Pokhr Noam? appellant wh is a Cotractor with hom hr son was working. cam to her and used filthy language, caught hold of her and assaulted with hands, fists and stick of beshnmrm plant. She lodged the renort EXP-l in which she has mentioned that if she was not saved by the witnesses, her modesty would have been outraged hy the appellant. She was examined hy the doctor and found one lacerated wound in the si7e of 6 x 5 cm. over the right thigh, one lacerated wound in the size of 3 x 2cm. over left. wrist joint. The report is EXP-2. Spot map Ex. P-S was prepared and after investigation, charge sheet was filed. 10. ln order to establish [the guilt against the appellant, prosecution has examined as many as seven witnesses. Statement of the accused was 33 m . S m be gu e a th en a p g th e Wi 8 ha gm e l rt supo n g e of a i he ) m p h i o n w e e @ recorded under Secfion 313 of the Cr.P.C. in which he (ianied the Circumstances appearing against him and p1eadad his innocence. 11. Afmr af‘foniing oppm-tunity of hearing f0 the parties} learned Special Judgti has convicted and sentenced the appellant as aforemen tinned. 1’2. In order to appreciate the contention of the parties, I, examined the idence adduced hy the prosecution. ExiP—liiis the First Information Report lodged by complainant Nanki Bai on the second day of the incident in which she has stated that appellant used filthy language, caught hold of her and assaulted her by hand, fist and with stick of beshamm plant. She has supported the First Information Report in his statement but she has stated that the applicant insulted her hy using the words “git .W e‘r, wet-swat silt?! e!” and. also used. obscene word “W”. She has also stated that anpellant chased her with a knife. The injuries were examined by.Dr. D.P.Knrre and the report is EXP-2. 13. P.W.-4 Nandlal has stated that complainant Nanki Bai demanded he wages of her son and herself. The appellant quarrelled with her and‘ assaulted her. He has not stated anything regatding obscene words or filthy language used by the appellant to the complainant and has not supported the case of prosecution. Even though} these words find place in the F‘irst Information Report lodged by the complainant on the second day of the incident. According to the First. Information Report; the incident took place on the ground of demand of wages. However; in the absence of obscene words in the F‘irst information Report, it is difficult to hold that the appellant has used the words “gm with s‘t W sii‘m ’rfl"? “We” or got. If, for the sake of argument. it is admitted, eVen then it has a literary meaning and is not sufficient to attract the ingredient of Section 294 of the Indian Penal Code. 14. _ As regards outraging the modesty of a woman on the ground that she is a memher of schedule caste is concerned, according to the F‘irst Information Report; it has heen specifically mentioned that if she was not v saved by the witnesses then her modesty would have, hsen outraged by the appeilant, shows that there is no attempt on behalf of the appellant and that too: on the ground of her haste. But the statement of complainant is supported by P.W.-4 Nandlal and the First. Information Report shows that she was assaulted by the appellant and she received injuries. On careull examination of the statement of witnesses, it revelas that complainant was assaulted by the appellant without any authority. His act squarely falls within the amhits of violatedly causing hurt. There ‘o iota of evidence to establish the fact that the appellant has used the ohsence words in Public place and used criminal force to outrage the modesty of the Women who is a memher of schedule caste. 15. Consequently, the conviction and sentence imposed unon the appellant under Section 323 of the Indian Penal Code is sustainable hut as regards the conviction and sentence under Section 294 of the Indian Penal Code and under Section 3 (1) (XI) of the SC/S’l‘ Prevention of Atrocities Act is concerned, learned Special Judge has not considered the material available on record, which was not sufficient for holding the appellant guilty for the aforesaid offence. X fr \ a 16. In the tesult, the appeal is partly allowed. The conviction and sentence imposed upon the appellant for the offence punishable under Section 294 of the Indian Penal Code and under Section 3 ti) (XI) of the SC/S’I‘ Prevention of Atrocities Act is set aside. However, the conviction and sentence imposed upon the appellant under Section 323 of the Indian Penal Code is maintainahle. The appellant has already deposited the hue amount of Rs. 500/—. The tine deposited in compliance of the sentence under Section 294 of the lndian Penal Code he refunded Sd/- T. P. Sharma f , Judge ,,