Madhya Pradesh High Court

Smt.Rukkibai Patel vs The State Of Madhya Pradesh on 29 February, 2024

Author: Achal Kumar Paliwal

Bench: Achal Kumar Paliwal

                                                        1

                             IN THE HIGH COURT OF MADHYA PRADESH
                                          AT J A B A L P U R
                                              BEFORE
                            HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
                                   CRIMINAL APPEAL No. 522 of 2006
                           BETWEEN:-
                             1. SMT. RUKKI BAI WIFE OF NATTHU
                                PATEL, AGED ABOUT 65 YEARS
                             2. NATTHULAL, SON OF JANKILAL
                                PATEL, AGED ABOUT 70 YEARS
                             3. MANOJ KUMAR PATEL, SON OF
                                NATHULAL
                             4. SMT. ANUSUYABAI, WIFE OF
                                RAMBODH     PATEL, AGED     28
                                YEARS,
                                ALL     ARE    RESIDENT    OF
                                RADAKRISHNA       WARD,    PS
                                MANDLA, DISTRICT MANDLA M.P.



                                                              .....APPELLANTS
                           (NONE)
                           AND
                           THE STATE OF MADHYA PRADESH
                           THROUGH       POLICE     STATION
                           MANDLA,      DISTRICT   MANDLA
                           (MADHYA PRADESH)
                                                         .....RESPONDENT
                             (BY SHRI SMITA KEHRI-PANEL LAWYER )

                               RESERVED ON          :       25.01.2024
                               PRONOUNCED ON        :       29.02.2024



Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 13-03-2024
22:09:02
                                                                                2

                           .........................................................................................................
                                    This appeal having been heard and reserved for judgment, coming on for

                           pronouncement on this day, the court passed the following:-

                                                                       JUDGMENT

This criminal appeal has been filed by the appellants under Section 374

(2) of the Cr.P.C. against the judgement dated 08.03.2006 passed by Special

Judge, Mandla in S.C.No.56/2003, whereby the appellants have been convicted

under Section 323 (two counts) of IPC and have been sentenced with RI 3

months each and have been convicted under section 294 of the IPC and have

been sentenced with RI for one month each.

2. Prosecution story in brief is as follows:-

2- ^^vfHk;kstu dgkuh lkjka'k ;g gS fd fnå 10-6-2003 dks jkf= 11-45 cts çkFkhZ Jherh

jkts'ojh ckbZ lS;ke] gejkg iq= --".kdqekj lS;ke us Fkkuk v-tk-d- e.Myk esa mifLFkr gksdj lkagk

Øå&204 ij ekSf[kd fjiksVZ ntZ djk;h] ftlds vuqlkj vfHk;kstu dgkuh lkjka'k ;g gS fd jkf=

yxHkx 11-15 cts çkFkhZx.k viuh I;kt dh nqdku can djds ?kj okil yksVs FksA vkjksih vuqlwbZ;kckbZ]

eukst] uRFkw vkSj :DdhckbZ dh çkFkhZx.k ls iqjkuh jaft'k pyh vk jgh Fkh A mlh le; vkjksihx.k

M.Mk ysdj çkFkhZ ds ?kj ds ikl igqaps A yksd LFky ij v'yhy xkfy;k¡ nsrs gq, cksys fd eknjpksn]

ckgj fudyks rFkk tku ls ekjus dh /kedh nhA mlh le; vkjksihx.k us çkFkhZ --".kdqekj dks M.Ms ls

ekjihV dhA Jherh jkts'ojhckbZ vius iq= dks cpkus x;h rks vkjksihx.kksa us jkts'ojhckbZ ds lkFk Hkh

ekjihV dj lk/kkj.k pksV igqapkbZA vkjksihx.k us dgk fd xksaMok] uhp] eknjpksn tku ls ekj Mkysaxs A

xokg çesUæ] vkSj vk/kkckbZ us ?kVuk ns[kh gS vkSj chp&cpko fd;k gSA çkFkhZx.k ds }kjk Fkkuk esa lkagk

fjiksVZ ntZ djk;h x;h A rRi'pkr~ mudk MkDVjh eqykfgtk djk;k x;kA lkgk tkap ds mikjkUr viå

Ø0&18@03 çn'kZ ih&6 ds vuqlkj Fkkuk vk0tk0d0 e.Myk esa iathc) fd;k x;kA vfHk;qäx.kksa dks

fxj¶rkj fd;k x;k A vuqla/kku iw.kZ dj vfHk;ksxi= lh- ts- ,e- e.Myk ds U;k;ky; esa is'k fd;k

x;k] tks dfeV gksus ds mijkUr bl U;k;ky; dks çkIr gqvk A**

3. Learned counsel for the respondent State has submitted that the

prosecution has proved its case by leading cogent evidence and has proved guilt

of the appellants beyond reasonable doubt and there are no grounds to interfere

with the same.

4. I have heard learned counsel for the state and perused the record of the

case and have perused/examined record of the trial Court and grounds taken by

appellants/accused persons in the appeal memo minutely and carefully.

5. So far as conviction of the appellants under section 323 of the IPC is

concerned, prosecution witness /injured Krishna Kumar Sayyam (PW-4) has

deposed in his examination in chief as under :-

1- eSa xksaM tkfr dk gw¡A vkjksihx.k dqehZ iVsy gSA fn0 10-6-03 dks jkf= yxHkx 11-00 cts esa cktkj ls ykSVdj ?kj vk;k FkkA mlh le; pkjksa vkjksih eukst] uRFkw] :odhckbZ vkSj vuqlksb;kckbZ xkyh cdus yxs A vkjksihx.k cksys eknjpksn i.Mk iqtkjh curk gS] lwvj [kkus okyk i.Mk iqtkjh curk gS] rq>s dkVdj Qsad nsaxs eknjpksn A tSls gh eSa ?kj esa ?kqlk rks eukst us dqYgkMh ds yksgk ds ihNs Hkkx ls eq>s flj esa ekjk rks flj ls [kwu fudykA uRFkw us ykBh ls ekjk A mlds ckn :Ddks vuqlwb;k Hkh vk x,A ;s Hkh ekjus yxsA eq>s cpkus ls fy, esjh ek¡ jktdqekjhckbZ vk x;h rks eukst us esjh ek¡ dks Hkh dqYgkMh ls flj esa ekjkA pkjksa vkjksihx.k ekjus ds fy, HkhM+ x,A

2- çeksn iVsy vkSj vk'kkckbZ iVsy us chp&cpko fd;k A eksgYys ds vkSj yksx Hkh Fks A

3- xkfy;k¡ lquus esa cqjh yxh A

4- eSa xksaM tkfr dk gw¡A mlds ckn vkjksihx.k vius ?kj pys x,A eSus gfjtu dY;k.k /kkuk e.Myk tkdj ?kVuk dh fjiksVZ fy[kkbZA eSa vkSj esjh ekWa iqfyl ds lkFk eqykfgtk ds fy, vLirky x, FksA ogk¡ MkDVjh eqykfgtk gqvk FkkA eSaus fjiksVZ fy[kk;h Fkh A

¼bl LVst ij lk{kh dks i{kfojks/kh ?kksf"kr dj mÙkj lwpd ç'u iwNus dh vuqefr pkgh A vuqefr nh x;h½

dwVijh{k.k vfHk;kstu dh vksj ls Jh pkSjfl;k fo-yks-vHk-A

iz'u 5& vkjksihxa.k us vk¶dks lwvj] xksaM] uhp dgk Fkk A mÙkj& th gk¡ A 6- vkjksihx.k us nksuksa dks Hkxkvks dgk Fkk A m-& bldh ek¡ vkSj bldks nksuksa dks Hkxkvks dgk Fkk A

iz07 fjiksVZ vkius ugha cfYd vkidh ek¡ jkts'ojhckbZ us fy[kkbZ Fkh \ m0& fjiksVZ eSaus fy[kkbZ FkhA jkts'ojh ckbZ esjs lkFk esa Fkh A ¼uksV vfHk;kstu i{k us crk;k fd xokg --".kdqekj lS;ke }kjk fy[kkbZ fjiksVZ dh QksVksd‚ih iqfyl dsl Mk;jh esa layXu gSA mUgksaus ;g tkudkjh Jh cosZ&vf/koäk ds }kjk mBkbZ xbZ bl vkifÙk ij çdV dh fd ;fn --".kdqekj dh dksbZ fjiksVZ gks rks is'k djk;h tkos A vr% mä fjiksVZ Mk;jh ls fudkydj vfHkys[k esa layXu dh x;hA½

6. Prosecution witness injured Rajeshwari @ Rajkumar (PW-6) has deposed

in her examination in chief as under:-

1& esjk tUHk xzke ddS;k Fkkuk cEguh ftyk e.Myk es gqvk Fkk A esjh 'kknh lkxj neksg ds ikl iFkfj;k es egsUæ ds lkFk gq;h FkhA eSa 'kknh ds ckn iFkfj;k x;h Fkh A

2& egsUæ i{k eq>s NksM dj Hkkx x;kA mlls eq>s ,d cPph gq;hA mlds ckn euksgj yky lS;ke esjs ikl vk x;k A mlls eq>s ,d iq= --".k dqekj lSoke iSnk gqtk A tks vkt xokgh nsus ds fy, vk;k gSA ml cPps dk tUe ?kj es gqvk Fkk A

3&fnukad 10-6-2003 dks jkf= yxHkx 11-00 cts esa vius ?kj esa Fkk A vkjksih x.k dk edku esjs ?kj ds lkeus gSaA vkjksih uRFkw] eukst] :Ddh ckbZ] vkSj vuqlqab;k ckbZ pkjksa esjs ?kj vk x;s A eukst ds ikl dqYgkMh] uRFkw ds ikl MaMk] #Ddh ckbZ ds ikl gfl;k FkkA vkjksihx.kksa us esjs cPps

--".k dqekj dks ekjk ftlls dqYgkMh ls flj es pksV yxk rks og uhps fxj x;kA

4& vkjksihx.k us eq>s Hkh xkfy;ka nh vkSj --".k dqekj dks Hkh xkfy;ka nh A vkjksihx.k us dgk fd eknjoksn] cfgupksn] jaMh oS';k dgk lquus es cqjk yxk A vkjksih eukst dqYgkM+h ls esjs flj esa ekjk ftlls esa fxj iMhA esjk flj QV x;kA [kwu fudy vk;k A

5& eq>s tku ls ekjus dh /kedh Hkh nh Fkh A

6& esjs yMdk --".k dqekj lS;ke ¼xksM½ tkfr dk gSA vkkjksihx.k dqehZ tkfr ds gSA

7&ml le; va/ksyk gks x;k Fkk A çesUæ iVSy] vk'kk ckbZ us chp cpko fd;k Fkk A fjD'kk esa eq>s vkSj d`".k dqekj us çesUæ vkSj vk'kk ckbZ us cSBk fn;k FkkA ge yksx vtkd Fkkuk e.Myk x;s Fks ogka geus fjiksVZ fy[kk;h Fkh A esjk vkSj d`".k dqekj dk MkDVjh eqykgtk djk;k x;k iqfyl

us ekSads ij vkdj tkap dh FkhA çn'kZih- 4 es c ls c esjs gLrk{kj gS eq>s ugha ekywe fd D;k cuk;k Fkk A

uksV%& bl Lrj ij vfHk;kstu dh vksj ls lk{kh dks i{k fojks/kh ?kksf"kr dj lk{kh ls dwV ijh{k.k dh vuqefr pkgh fopkj ckn vuefr nh x;h A dwV ijh{k.k }kjk fo'ks"k yksd vfHk;kstd okLrs vfHk;kstu %&

8- dguk gS fd iqfyl us uD'kk cuk;k Fkk\

m0& gk¡ A

9 gekjk dguk gS fd vfHkHkä x.k us rqEgkjs yM+ds --".k dqekj dks xksaMok uhp dgk Fkk \

m0& tk] gk¡ dgk Fkk A

7. Perusal of depositions of injured witnesses Krishna Kumar and Smt.

Rajeshwari reveals that they have been extensively cross examined on behalf of

the appellants but therein nothing substantive has come out to show that they

are not reliable witnesses and they are not deposing truthfully. Further, there are

no material contradictions or omissions in their depositions. Report Ex.P/5 has

been lodged immediately on the date of incident and it also corroborates

prosecution witnesses. Further, perusal of deposition of Dr. A.K. Shrivastava

and MLC Ex.P/1 and P/2 reveals that injured persons have been examined on

the date of incident itself and injuries, as deposed by injured witnesses in their

depositions, have been found on the person of injured. Thus, medical evidence

also corroborates depositions of Rajeshwari and Krishna Kumar Sayyam.

8. Thus, in this Court's opinion, prosecution witnesses Rajeshwari and

Krishna Kumar are wholly reliable witnesses and their depositions stand

corroborated in material particular by other evidence on record.

9. Further, Hon'ble Apex Court in State of West Bengal Vs. Kailash

Chandra Pandey, (2014) 12 SCC 29, has observed in para 13 that it is needless

to reiterate that appellate Court should be slow in rea-ppreciating the evidence.

This Court time and again has emphasized that the trial Court has the occasion

to see the demeanour of the witnesses and it is in a better position to appreciate

it, the appellate Court should not lightly brush aside the appreciation done by

the trial court except for cogent reasons.

10. Appellants have examined Ramakant Dubey and Chameli Bai and have

also produced documents Ex.D/1 to D/21C, I have gone through above but from

above it is not established that incident as deposed by prosecution witnesses did

not occur.

11. Hence, in view of discussion in the foregoing paras and after going

through the evidence on record and having evaluated/appreciated the same, in

this Court's opinion, learned trial Court has appropriately appreciated the

overall evidence on record and has drawn correct conclusions and there is no

illegality or perversity in the findings of trial Court concerning

appellant/accused's conviction for above offences. Therefore, grounds taken by

the appellant in appeal memo with respect to conviction are not acceptable and

hence, rejected. Hence, learned trial Court's findings and judgement with

respect to appellant\accused person conviction for aforesaid offence\offences

are hereby affirmed.

12. So far as appellant's conviction u/s 294 of IPC is concerned, I have gone

through the depositions of prosecution witnesses, especially

complainant/victim, & FIR, concerning utterances/abuses hurled/used by

appellants, as mentioned in the preceding paras, which learned trial court found

to be obscene. Now, question arises/ issue before this court is whether

utterances/abuses hurled/used by appellants comes within the purview of

offence as defined in section 294 of IPC.

13. With reference to above, it would be appropriate to refer certain relevant pronouncements having direct bearing on the issue involved in the case. In State of M.P. Vs. Arvind Kumar (1967 JLJ SN 10), it has been held that mere utterance of an abuse need not necessarily be equated with utterance of obscene words. In Vishnu Prasad Vs. State of M.P. (1971 JLJ SN 148), it has been held that mere uttering filthy abuses would not amount to an offence under S.294. Abuses, however, filthy, cannot be said to amount to an obscene act or words. Obscenity should be something to do with morals or sex and it should have the tendency of depraving impressionable minds. In Ganpat Vs. State, (1966 MPLJ Note 29), it has been held that notions about obscenity are found to change from time to time and depend considerably upon the class of persons whose susceptibility into the matter is involved. Having regard to the class of society, to which the parties in case belongs, the abuses have no more significance than mere platitudinous utterances signifying only the state of one's enraged mind and nothing more. Filthy abuses are not per se obscene within the meaning of Sec.294.

In Sharad Dave Vs. Mahesh Gupta, 2005 (2) Vidhi Bhaswar 152, it has been held that the test of obscenity is whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and in whose ears the words may fall. The use of the term 'obscenity' is restricted to sexual immorality. Therefore, the words should be such which excite

sexual desires and lascivious thoughts. Only lewd comments can be said to be obscene. In Om Prakash v. State of M.P. [1989 MPLJ 657], it has been held that no literal significance can be attached to the abuses. The test of obscenity is whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences. Mere platitudinous utterances signifying the enraged state of the person's mind would not be sufficient to attract the application of the provisions of section 294 of the IPC. Thus, mere 'vulgar abuses' do not constitute offence under section 294 of the IPC. In colloquial language, the abuses like "eknjpksnksa** are often used and nobody understands such abuses in their literal sense. They only show the enraged state of mind. Such abuses which people do not hesitate in uttering even in the presence of their children or other family members do not have the tendency to deprave and corrupt those who listen such words.

Thus, if utterances/abuses hurled/used by appellants in the instant case, as mentioned in the preceding paras, are examined/assessed/tested in the light of legal principles as propounded/enunciated in above pronouncements, alongwith/in the context of factual background of the case, as unfolded in the FIR & in court depositions of prosecution witnesses, especially complainant/victim, then, in this court's considered opinion, it can not be said that the utterances/abuses hurled/used by appellants in the instant case are obscene utterances within the purview of section 294 of IPC.

14. Therefore, in this court's opinion, appellants cannot be convicted u/s 294

of IPC. Hence, appellants are acquitted of charge u/s 294 of IPC.

15. So far as appellants sentence is concerned, trial Court has sentenced the

appellants under Section 323 of IPC (2 counts) with RI 3 months each for each

count (two counts). In the instant case, present incident is dated 10.06.2003.

Appellants have been convicted under Section 323 of IPC and appellants

have no criminal antecedents. Hence, ends of justice would be served if

sentence of imprisonment is set aside and appellants are sentenced with fine

only.

16. In view of above, and considering overall facts and circumstances of

the case, appeal filed by the appellants is partly allowed and sentence of

imprisonment imposed by trial Court in relation to section 323 of IPC is set