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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 362 of 2011
• Rajendra Gupta S/o. Bineshwar Gupta, R/o. Vill. Bundia, P.S.
Bhatgaon, Distt. Surguja C.G.
---- Appellant
Versus
• State Of Chhattisgarh, through AJK Police Station Surajpur,
District Surguja (CG)
---- Respondent
For Appellant : Shri Aman Kesarwni , Advocate on behalf of
Shri A.K.Prasad, Advocate
For Respondent/State : Ms. Priya Sharma, PL
Hon’ble Shri Justice Arvind Kumar Verma
Judgment On Board
28/03/2024
This appeal under Section 374(2) of Cr.P.C. has been preferred by
the appellant against the judgment and order dated 29.04.2011 passed
by the learned Special Judge, Surguja (Ambikapur) in Sessions Trial No.
25/2009 convicting and sentencing him as under:
Conviction Sentence
U/s. 3(1)(x) of the SC/ST Undergo RI for six months with fine of
(Prevention of Atrocities) Act Rs. 500/-, in default of fine to further
undergo RI for one month
U/s. 452 IPC Undergo RI for 2 years with payment of
fine 500/- in default of fine to further
undergo RI for 1 month
U/s. 294 IPC Undergo RI for three months
U/s. 506 Part II of IPC Undergo RI for 6 months
All the sentences are ordered to run concurrently.
2. Case of the prosecution put-forth by the complainant herein is that
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at the relevant time he was the Sarpanch of Village Bundiya and he used
to run the fair price shop and the food grains were distributed in the
village as per the instructions. On the date of incident, i.e. 5.10.2018 at
about 7.00 p.m. the appellant entered the house of the complainant and
started hurling filthy abuses by the name of his caste to handover the fair
price shop to him. Apart from this, the accused/appellant also threatened
the complainant of life as a result of which he underwent humiliation and
mental agony. At that time, son of the complainant who was present
there, caught the appellant and moved out. The incident was witnessed
by Rajkumar. Written report Ex.P-1 was lodged at AJAK against the
appellant under Sections 294,506 and 452 IPC and Section 3(1)(x) of
the SC/ST (Prevention of Atrocities) Act. Thereafter on 21.12.2008, the
appellant was arrested and arrest memo Ex.P-5 was prepared. After
completion of investigation, the appellants were charge-sheeted for the
offence punishable under Sections 294, 506 and 452 IPC and Section
3(1)(x) of the SC/ST (Prevention of Atrocities) Act before the
jurisdictional criminal Court and the case was committed to the trial Court
for hearing and disposal in accordance with law, in which the
appellant/accused abjured his guilt and entered into defence by stating
that he has not committed the offence.
3. In order to bring home the offence, prosecution has examined as
many as 4 witnesses. This apart, two defence witnesses have been
examined.
4. The trial Court, after appreciation of oral and documentary evidence
on record, convicted and sentenced the appellant as above against
which the present appeal has been preferred.
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5. Learned counsel for the accused/appellant submits that learned
Court below has committed an error of law in passing the judgment
impugned holding the accused/appellant guilty under the Special Act. He
further submits that the prosecution has failed to prove its case against
the appellant. He submits that Section 3(1)(x) of the SC/ST (Prevention
of Atrocities) Act is not attracted against him but yet the Court below has
not considered this lacuna on the part of the prosecution and erroneously
held him guilty under the Special Act apart from certain sections of the
Indian Penal Code. He also submits that the intention on the part of the
accused/appellant to humiliate the complainant knowing him to be a
member of Scheduled Tribe community has not been established by the
prosecution and therefore also his conviction is bad under the law.
Hence, the appellants have been falsely implicated.
6. Per contra, learned counsel appearing for the respondent/State
argued the case in support of the impugned order of the Special court.
He submits that the contents of the FIR are corroborated by the
statement of the witness (Raj Kumar-PW-2) recorded during investigation
making out the basic ingredients of the offence and there was no
illegality in the order passed by the trial court.
7. Heard counsel for the parties and perused the material available
on record.
8. Complainant Roop Sai (PW-1) has stated that apart from being
Gond by caste, falling in the Scheduled Tribe category, he was the
Sarpanch of village Bundiya as well. He has stated that on the date of
incident at about 7.00 p.m., the appellant came to his house and started
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hurling filthy abuses in the name of caste. He also told him to handover
the fair price shop/society to him and threatened him of life. At that point
of time, his son intervened and he ran away from there. He has further
deposed that on several occasions, he had created nuisance by hurling
abuses. He has made a written report Ex.P-1 at AJAK, Surajpur.
Rajkumar (PW-2) who at the relevant time was present on the spot has
also reiterated similar statement to that of the complainant .
9. According to this witness, the appellant had also threatened the
complainant of life. Though the caste certificate Ex.P-2A dated
12.01.2009 issued by the competent authority is there on record which
shows that the accused/appellant belongs to Scheduled Tribe category.
Apart from this, the complainant has also stated his caste to be Gond
falling in the Scheduled Tribe category. Most importantly, the
accused/appellant in his statement recorded under Section 313 of
Cr.P.C. has also admitted that the complainant was Gond by caste and a
member of Scheduled Tribe community as such. Defence witnesses
namely Dilip Jaiswal (DW-1) and Chetan Prasad (DW-2) however, have
stated that the accused/appellant has been implicated by the
complainant in a false case.
10. After going through the statement of the witnesses, it is found that
firstly, from the reading of the complaint and the charge framed, the
offence under Section 452 of IPC is not made out against the appellant
as he did not trespass into the house with intention to assault /or cause
hurt to the complainant nor was armed with any weapon to assault or
causing hurt and the charge framed, if at all, then offence under Section
451 IPC is made out which provides for commission of house trespass in
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order to commit any offence punishable with imprisonment. From the
reading of the allegations made by the appellant, it is evident that the
appellant had only entered the house hurled abuses and not for causing
any physical hurt or assault or wrongful restraint. Section 452 IPC reads
as under:
“House-trespass after preparation for hurt,
assault, or wrongful restraint: This section deals
with house-trespass after preparation for hurt,
assault, or wrongful restraint. It pertains to
cases where a person trespasses into a house
or any other place with the intention of causing
hurt, assault, or wrongful restraint to any
person. The offender can be imprisoned for up
to seven years, along with a possible fine. This
section underscores the significance of
safeguarding individuals' safety and security
within their premises by addressing not only the
act of trespass but also the preparatory stages
for causing harm, assault, or wrongful restraint.
These sections collectively define and
penalize various forms of criminal trespass,
taking into account different circumstances,
intentions, and potential offenses that may
result from such trespasses.”
11. There is no evidence on record to prove that the appellant was
prepared to cause hurt to any person and thereafter committed house
trespass. It has only come in evidence that the appellant has hurled
abuses and have used the surname Uraon and he was not intended to
defame by his caste and left the place.
12. Whereas Section 451 of the Indian Penal Code is defined as
under:
“Whoever commits house-trespass in order to the
committing of any offence punishable with
imprisonment, shall be punished with
imprisonment of either description for a term
which may extend to two years, and shall also be
liable to fine; and if the offence intended to be
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committed is theft, the term of the imprisonment
may be extended to seven years.”
13. Secondly, the conviction of the appellant under Sections 294 and
506-Part II of the IPC is concerned, Section 294 of the IPC as a whole
reads thus:
"294.Obscene acts and songs - Whoever, to
the annoyance of others -
(a) does any obscene act in any public
place,or
(b) sings, recites or utters any obscene
song,ballad or words, in or near any public
place, shall be punished with imprisonment of
either description for a term which may extend
to three months, or with fine, or with both.”
14. The object in enacting this provision (Section 294 of the CrPC) is
to shorten the proceedings. It provides the mode or manner in which the
documents relied upon by the prosecution and defence can be proved
without any formal proof thereof. The proviso, however, gives discretion
to the court to call for the proof of the signature on the documents. It may
not be the requirement of law to reproduce in all cases the entire
obscene words if it is lengthy, but in the instant case, there is hardly
anything on record. Mere abusive, humiliating or defamative words by
itself cannot attract an offence under Section 294 IPC. To prove the
offence under Section 294 of IPC mere utterance of obscene words are
not sufficient but there must be a further proof to establish that it was to
the annoyance of others, which is lacking in the case. In the present
case, the appellant has entered the house of the complainant and hurled
abuses and it is not a public place to the annoyance of others and
therefore the offence under Section 294 IPC is also not made out against
the appellant. The mere platitudinous utterances signifying the enraged
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state of person’s mind would not be sufficient to attract Section 294 of
IPC.
Section 506 of IPC reads as under:
“506. Punishment for criminal intimidation. -
Whoever commits the offence of criminal
intimidation shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine,
or with both;
If threat be to cause death or grievous hurt,
etc. and if the threat be to cause death or
grievous hurt, or to cause the destruction of
any property by fire, or to cause an offence
punishable with death or 1[imprisonment for
life], or with imprisonment for a term which
may extend to seven years, or to impute
unchastity to a woman, shall be punished with
imprisonment of either description for a term
which may extend to seven years, or with
fine, or with both.”
15. Allegations in the complaint against the appellant is that he hurled
filthy abuses and also threatened the complainant of life. Even if, for the
sake of argument the above allegations are taken as true even then the
aforesaid allegations on its face value does not satisfy the necessary
ingredients of section 506 of IPC. Section 506 of IPC talks about the
criminal intimidation.
16. In Manik Taneja Vs. State of Karnataka, reported in (2015) 7
SCC 423, Hon’ble Supreme Court after noticing Section 506, which
defines the criminal intimidation observed as under:
“11. ******A reading of the definition of “criminal
intimidation” would indicate that there must be an
act of threatening to another person, of causing
an injury to the person, reputation, or property of
the person threatened, or to the person in whom
the threatened person is interested and the
threat must be with the intent to cause alarm to
the person threatened or it must be to do any act
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which he is not legally bound to do or omit to do
an act which he is legally entitled to do.”
12. In the instant case, the allegation is that the
appellants have abused the complainant and
obstructed the second respondent from
discharging his public duties and spoiled the
integrity of the second respondent. It is the
intention of the accused that has to be
considered in deciding as to whether what he
has stated comes within the meaning of “criminal
intimidation”. The threat must be with intention to
cause alarm to the complainant to cause that
person to do or omit to do any work. Mere
expression of any words without any intention to
cause alarm would not be sufficient to bring in
the application of this section. But material has to
be placed on record to show that the intention is
to cause alarm to the complainant. From the
facts and circumstances of the case, it appears
that there was no intention on the part of the
appellants to cause alarm in the mind of the
second respondent causing obstruction in
discharge of his duty. As far as the comments
posted on Facebook are concerned, it appears
that it is a public forum meant for helping the
public and the act of the appellants posting a
comment on Facebook may not attract
ingredients of criminal intimidation in Section 503
IPC.”
17. The Hon’ble Apex Court held that the allegations that accused has
abused does not satisfy the ingredients of Section 506 of IPC. In the
case on hand, the allegation against the appellant is that he hurled
abuses and threatened the complainant of life. Even if for the sake of
argument the entire allegations are taken to be correct, the necessary
ingredients for an offence under Section 506 Part II are not made out.
18. For proving an offence under Section 506 of IPC prosecution is
required to prove:
(i) that the accused threatened some person.
(ii) that such threats consisted of some injury
to his person, reputation or property, or to the
person, reputation or property of someone in
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whom he was interested.
(iii) that he did so with intent to cause alarm to
that person, or to cause that person to do any
act which he was not legally bound to do or
omit to do an act which he is legally entitled to
do as a means of avoiding the execution of
such threat.”
19. A plain reading of the allegations does not satisfy the ingredients of
Section 506 Part II of IPC because an offence of criminal intimidation can
be made out only if it is established that the accused had an intention to
cause an alarm to the complainant. Mere threats given to by the accused
not with an intention to cause alarm to the complainant, but with a view to
deterring him would not constitute an offence of criminal intimidation.
20. In the light of above discussion, I am of the considered view that
necessary ingredients for an offence under Section 294 and 506-II of IPC
are not made out from the contents of complaint made by the
complainant. Even though all the ingredients which are necessary for
constituting offences under Sections 294 and 506-II of IPC are clearly
missing. The trial court convicted the appellant based on the
corroborated evidence which is against the fundamental criminal
jurisprudence.
21. Lastly, the learned trial court has also failed to prove the fact that
no case is made out against the appellant under Section 3(1)(x) of the
SC/ST (Prevention of Atrocities) Act. The question to be decided is
whether the conviction of appellant under 3 (1)(x) of the Special Act is
justified or not?
22. Section 3(2)(v) of the SC and ST (Prevention of Atrocities) Act,
1989 as amended as 3(1)(r) by Scheduled Castes and Scheduled Tribes
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(Prevention of Atrocities) amendment Ordinance 2014 with effect from
4-3-2014 reads as under:
“3. Punishments for offences of atrocities –(1)
Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe-
(r) intentionally insults or intimidates with intent
to humiliate a member of a Scheduled Caste
or a Scheduled Tribe in any place within public
view” shall be punishable with imprisonment
for a term which shall not be less than six
months, but which may extend to five years
and with fine.
23. Thus, to bring home an offence punishable under Section 3 (1)(r)
of the Act, 1989 the prosecution has to prove the following ingredients.
“i) That the accused was not a member of
Scheduled Caste or Scheduled Tribe;
ii) That the complainant was intentionally
insulted or intimidate by the accused.
iii) that intentional insult or intimidation was
“with intent to humiliate” such member;
iv) that insult or intimidation with an intent to
humiliate must be in a place within “public
view”.
24. The entire statement of the complainant goes to show that there is
no proof for the ‘intent to humiliate’ or intentionally insulted’ After due
consideration and close examination of the witnesses facts and
circumstances and evidence, in the opinion of this Court, the prosecution
has failed to prove the essential ingredients against the appellant under
Section 3(1)(10) of the Act, hence the conviction requires no
interference. The Offence u/S 3(1)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 being committed
inside the house, which is not public place or in any place within public
view, the accused is acquitted of the charge against him under the
aforesaid section.
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25. Thus from the material available on record and the evidence of the
witnesses and the statement of accused/appellant under Section 313
Cr.P.C., this Court is of the considered opinion that on the date of
incident the accused/appellant hurled filthy abuses but not with an
intention to insult or humiliate the complainant. With regard to abusing in
the name of caste is concerned, the appellant has abused him with his
surname and not by caste therefore offence under Section 3(1)(x) of the
Special Act is not made out against the appellant.
26. It has come on record that the appellant entered the house of the
complainant however he was not having any deadly weapon at the time
entering the house of the complainant therefore, in the opinion of this
Court, the learned trial Court has committed illegality in recording the
conviction of the appellant under Section 452 of IPC instead of Section
451 IPC. Thus, his conviction under Section 452 of IPC is altered to 451
of IPC. He is sentenced to the period already undergone by him.
However, he is directed to pay fine of Rs. 500/- on each count, failing
which he shall suffer additional RI for two months. Accordingly, the jail
sentence imposed by the court below under Section Section 452 of I.P.C
is set aside and instead thereof a sentence of simple imprisonment for
one month is imposed under Section 451 of I.P.C.
27. It is stated that the appellant had remained in jail for about 15 days
and considering that at the time of incident, the appellant was aged about
38 years, 16 years have rolled by then and now the appellant may be
aged about 56 years, he has been in custody for about 15 days, now he
is having his family responsibilities, ends of justice would be served if the
sentence imposed upon him is reduced to the period already undergone
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by him.
28. In sum and substance, conviction of accused/appellant under
Sections 294 and 506-Part II IPC and Section 3(1)(x) of the Special Act
are set aside and he is acquitted of the said charges. However, his
conviction under Section 452 is altered to that under Section 451 of IPC
and it is maintained. So far as the substantive jail sentence imposed on
him is concerned, it is reduced to the period already undergone by him
with fine of Rs. 500/- on each count failing which he shall suffer
additional RI for two months. Since the appellant is already on bail, his
bail bonds stand discharged.
29. Appeal is thus allowed in part.
Sd/-
(Arvind Kumar Verma)
Judge
suguna