Madhya Pradesh High Court
Janglu & Ors. vs The State Of M.P. 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. 912 of 2005
BETWEEN:-
1.JAGLU SON OF SHIVCHARAN
DHEEMAR,
AGED ABOUT 40 YEARS.
2. SMT. RAJKUMARI, AGED ABOUT 40
YEARS, WIFE OF JANGLU DHIMAR,
3. VISHRAM SON OF AMMULAL
DHIMAR, AGED ABOUT 23 YEARS
ALL ARE RESIDENT OF GRAM
BHARVELI, CHOUKI, PINDRAI, POLICE
STATION NAINPUR, DISTRICT MANDLA
M.P.
.....APPELLANTS
(MRS.POOJA RAJAK - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION PIPARIYA, DISTRICT BHOPAL,
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI G.S. BAGHEL -GOVERNMENT ADVOCATE)
RESERVED ON : 15.02.2024
PRONOUNCED ON : 29.02.2024
......................................................................................................................
This appeal having been heard and reserved for judgement, coming on
for pronouncement on this day, the court passed the following:-
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 13-03-2024
22:09:02
2
JUDGEMENT
This criminal appeal has been filed by the appellants under Section 374 of
the Cr.P.C. against the judgement dated 11.04.2005 passed by Special Judge,
Mandla, in S.T.No.92/2003, whereby appellants have been convicted under Section
3 (1) and (5) of SC ST Act and have been sentenced to undergo RI for six months
each with fine of Rs.500/- each and have been convicted under section 506/34 of
IPC and have been sentenced to undergo RI for 3 months each and have been
convicted under Section 447/34 of IPC and have been sentenced to undergo RI for
three months each and have been convicted under Section 294 IPC and have been
sentenced to under RI for 1 month each.
2. Prosecution story in brief is as follows: -
"अभभियोजन कहानी सारां श यह है भक प्रारर सामवती बाई मेहरा अनुसूभचित जाभत
की मभहला है । वह ग्राम भिर केली मे रहकर छ. नं.-783X। रब्बा । है ० भिूभम ग्राम भिरवेली,
तहसील नैनपुर, भजला-मण्डला पर काश्तकारी करती है । इस भिू भम का कब्जा पटवारी ने
घटना भदिनां क के एक साल पहले उसे भदिया रा । आरोपीगण हे द्वारा उक भिू भम पर
लगातार कब्जा करने का प्रयास करते हुए प्रारर के कब्जे मे हस्तक्षेप भकया जा रहा है ।
घटना भदिनां क 25.8.03 को भदिन के 11.00 बजे प्रारर श्रीमती साम वती बाई झररया अपनी
भिूभम पर खेती के काम से गयी री । उसी समय चिारों आरोपीगण वहाँ पहुं चिे। उसे क्षोभि
काररत करने के आशय से अश्लील गाभलयाँ दिीं। संत्रास काररत करने के आशय से जान
से मारने की धमकी दिे कर आपराभधक अभमतासकाररत भकया । प्रारर की आभधपत की
भिूभम पर लौम व सेवास काररत करने के आशय से प्रवेश कर आपराभधक अभतचिार
काररत क्या । उसी समय आरोपीगण भिर अनुसूभचित जाभत/जनजाभत टीमर समाज के
सदिस रे । उन्होंने प्रारर श्रीमती सामवती बाई जो भक अनुसूभचित जाभत की मभहला री को
आवंभटत वादिास्त कृभषिभिू भम पर जबरन कब्जा कर सदिोषि अभधमोग करते हुए काश्तकारी
ही। उसी समय वादिग्रस्त भिूभम पर प्रारर को सदिोषि कब्जा कर वादि जमीन से बेदिखल
करते हुए उसके उपयोग व उपभिोग के अभधकार मे हस्तक्षेप भकया । घटना के समय
पास मे खेत मे काम कर रहे गेदिलाल झाररया 3. सा. 28, संतोषिी ढीगर 33. सा., गाय
पटे ल ईश्वरी प्रसादि अ. सा. 48 ने घटना दिे खी । प्रारर श्रीमती सामवती बाई मेहरा के द्वारा
भदि० 15.8.03 को 16.40 बजे धाना नैनपुर मे प्र०पी-4 के अनुसार घटना की ररपोटर दिजर
करायी गयी तत्पश्चातु राना नैनपुर मे नम्बरी नालसी 196/03 दिजर की गयी । अनुसंधान के
दिौरान वादिग्रस्त भिू भम के राजस अभभिलेख प्राप भकए गए। आरोपीगण को भगरफ्तार
भकया गया । अनुसंधान पूणर कर अभभियोग पत्र न्यायालय मे पेश भकया गया"''
3. After case was committed to the trial court, the trial court framed charges
against appellants & the same were read over to the appellants. The appellants
pleaded not guilty & claimed to be tried for the offences charged with. To prove
the charges against appellants, prosecution adduced oral as well as documentary
evidence. After completion of prosecution evidence, appellant was examined u/s
313 of CrPC. The appellants pleaded total denial & stated that they have been
falsely implicated. After evaluating the evidence that came on record, the
learned trial court vide impugned judgment convicted & sentenced appellants as
above.
4. Learned counsel for the respondent/state has submitted that prosecution
has proved its case by leading cogent evidence & has proved guilt of the
appellant beyond reasonable doubt & there are no grounds to interfere with the
same. The trial court has rightly convicted & sentenced the appellant, as above,
hence, appeal is liable to be dismissed.
5. I have heard learned counsel for the State & have perused/examined
record of trial court & grounds taken by the appellant/accused in the appeal
memo minutely & carefully.
6. So far as appellants conviction under section 3(i) (v) of SC/ST (PA) ACT
is concerned, one of the primary/basic/fundamental requirement of law is that
prosecution is required to establish that complainant/victim belongs to/is
member of scheduled caste or scheduled tribe & prosecution must prove this
fact by production of caste certificate purported to have been issued by
competent authority. As per Government of Madhya Pradesh, General
Administration Department Notification No. F.7-2/96/Reservation Cell/one,
Dated 1.8.96 (w.e.f.1 August 1996) only Collector/Additional District
Collector/Deputy Collector/Sub-Divisional Officer is competent/authorized to
issue permanent caste certificate. In this court's opinion, above fact cannot be
proved by oral testimony/admissions made in examination u/s 313 of CrPC or
by production of certificate issued by any authority other than Sub-Divisional
Officer.
7. Perusal of impugned judgment reveals that prosecution has not
filed/produced any such caste certificate, purported to have been issued by
competent authority as above. It is also evident from impugned judgment that
learned trial court has, just on the basis of oral depositions of prosecution
witnesses/admissions made in examination u/s 313 of CrPC, has concluded/held
that it is established that complainant/victim belongs to/is member of scheduled
caste or scheduled tribe. In this court's considered opinion, this finding of
learned trial court is erroneous & against law.
8. Hence, in view of above, appellants cannot be convicted & sentenced
under section 3(i) (v) of SC/ST (PA) ACT. Therefore, appellants are acquitted of
charge under section 3(i) (v) of SC/ST (PA) ACT.
9. 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.
10. 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, can not 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.
11. 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.
12. 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 cannot 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.
13. 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.
14. So far as appellants conviction u/s 506 of IPC is concerned, I have
gone through the depositions of prosecution witnesses, especially
complainant/victim, & FIR, concerning threat given/actual words used by
appellants alongwith surrounding circumstances & factual background of the
case, as mentioned in the preceding paras.
15. Thus, if threat given/actual words used by appellants in the instant
case, as mentioned in the preceding paras, is/are examined/assessed along
with/in the context of factual background of the case & surrounding
circumstances, as unfolded in the FIR & in court depositions of prosecution
witnesses, especially complainant/victim, then, in this court's considered
opinion, it cannot be said that the threat given/actual words used by appellants
in the instant case were ever intended to be executed. Rather, they appear to be
verbal threat only, which were never intended to be executed & were actually
uttered in the heat of moment & when passions ran high.
16. Therefore, in this court's opinion, appellants cannot be convicted u/s
506 of IPC. Hence, appellants are acquitted of charge u/s 506 of IPC.
17. So far as conviction of appellants under Section 447/34 of IPC is
concerned, prosecution witness Ramwati Bai PW-5 has deposed in her
examination in chief as under:-
1- मुझे गां व मे ग्राम भिरवेली ने ढाई एकड जमीन गासन से पटैं टे पर भमली है ।
जमीन का असरानम्बर मालू म नहीं है । पटवारी ने जमीन का कब्जा भदिलाया रा। परन्तु
आरोपी गण ने मुझे पसल बोने नहीं भदिया
2- लगभ्श दिो साल पहले की बात है । अबह लगभिग 8 बजे की बात है मे खेत मे
धान नींदि रही री। वहां परआरोपी जंगलू, भवश्राम, अम्मू और रामकुमारी जाये अभनुयक
गण्णते आकर कहा भक नीचि जाभत मेहरभनयातेरी बऊ *को बोदिू तेरी दिाई कीवीदिू की
गाली दिे ते हुए मुझे मारकर भगरा भदिये ।
गाली सुनने मे बूटी लगी। नीचि जात मेहरभनया सुन करमुझे बुरा लगा। आरोपी गण बोलते
हे भक तेरे को मार कर पेक दिे गे। गेदि लाल औरसंतोक्यो मौके पररे । काट कर पेक्रने को
धमकी दिे बस सुन कर मुझे बुरा लगा मैंने अपने भपता को घटना की बातबतायोधी ।
उसके बादि भपण्डरई बाँ की जाकर घटनाकी ररपोटर भलखायी री । साक्षी को ररपोटर
प्रदिशरनी- पढकर सुनायी गया तो उसने ऐसी ही पी-4 ररपोटर भलखायीधा ररपोटर मे अंमूठा
लगायी री ।
3- मैं झाररया जाभत की हूं । मैने सरपंचि से जाभतप्रमाणपत्रप्राप कर पेगभकयाराजो
प्रदिशरमी 5 है । तहसीलदिारने पटटे का कागज भदियाधाजो पेश भकया रा भजसकी नकल
प्रदिाती. 6 है ।
18. From perusal of documentary evidence adduced by prosecution (Ex.P/2)
Ex.P/4 (FIR), Khasra Ex.P/3 and Ex.P/6 lease deed and deposition of Santoshi
Bai (PW-1), Gendlal (PW-2), Prabhu (PW-3), Ishwari Prasad (PW-4) and Punna
Lal (PW-5) Patwari and admissions made by appellants in their examination
under Section 313 of Cr.P.C. etc., it is clearly established that survey no.783/1
area 1 hectare was allotted to complainant and she had already received
possession thereof but the appellants have wrongly encroached/trespassed upon
the land/survey of the complainant.
19. 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 reappreciating the evidence.
This court time & again has emphasised that the trial court has the occasion to
see the demeanour of the witnesses & 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.
20. Hence, in view of discussion in the foregoing paras & after going
through the evidence on record & having evaluated/appreciated the same, in this
court's considered opinion, learned trial court has appropriately appreciated the
overall evidence on record & has drawn correct conclusions & there is no
illegality or perversity in the findings of learned trial court concerning
appellant/accused's conviction for above offence/offences. Therefore, grounds
taken by the appellants in appeal memo with respect to conviction are not
acceptable & hence, rejected. Hence, learned trial court's findings & judgement
with respect to appellant/accused's conviction for aforesaid offence/offfences
are hereby affirmed.
21. So far as sentence is concerned, trial Court has sentenced appellants
under Section 447/34 of IPC with three months RI, present incident is dated
25.08.2003. There are no criminal antecedents of the appellants. Appellants
have remained in custody for two days only.
22. Therefore, taking into consideration the nature of incident and all other
facts and circumstances of the case, ends of justice would be served if the
appellants are sentenced with the period already undergone by them and with
fine.
23. Hence, appeal filed by the appellants is partly allowed and the appellants
are sentenced with the period already undergone by them and with fine of
Rs.500/- each. In default, they are directed to undergo RI for 1 1/2 months.
24. The appellants are directed to deposit the aforesaid amount within three
months from today failing which they shall surrender before the trial Court to
undergo remaining sentence of imprisonment imposed by trial Court. Fine
amount, if any already deposited, shall be adjusted against the enhanced fine
amount.
25. After realization of fine Rs.1,500/-be given to complainant as
compensation.
26. Hence, in view of discussion in the foregoing paras & after going through
the evidence on record & having evaluated/appreciated the same, in this court's
considered opinion, learned trial court has appropriately appreciated the overall
evidence on record & has drawn correct conclusions & there is no illegality or
perversity in the findings of learned trial court concerning appellant/accused's
conviction for above offence/offences. Therefore, grounds taken by the
appellant in appeal memo with respect to conviction are not acceptable &
hence, rejected. Hence, learned trial court's findings & judgement with respect
to appellant/accused's conviction for aforesaid offence/offfences are hereby
affirmed.
27. In view of discussion in the foregoing paras, appeal filed by the appellant
is partly allowed to the extent as indicated hereinabove. Present appeal is
disposed of accordingly.
28. Present appeal is disposed off accordingly.
29. Let record of the trial Court be sent for information and necessary
compliance.
30. Certified copy as per rules.
(ACHAL KUMAR PALIWAL)
JUDGE
