1 2025:CGHC:25917 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 612 of 2005 1 - Shankar Kumar (Died And Deleted) As Per Honble Court Order Dated 30-09-2024. 2 - Sanjay Kumar S/o Shri Jairam Choudhary Aged About 23 Years Occupation- Driver, R/o Durga Mandir, Minimata Nagar, Khursipar, Bhilai, Chouki Khursipara, Police Station Chhavni, District Durg, C.G. ...Appellants versus State of Chhattisgarh ... Respondent For Appellants : Mr. Aman Pandey, Advocate. For Respondent/State : Ms. Neeta Tulsiyani, P.L. Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 19/06/2025 1. This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellants, assailing the legality, validity and judicial propriety of conviction and order of sentence dated 05.07.2005 passed by the learned Special Judge, Durg District- Durg (C.G.) in Session Trial No.53/2004 by which learned trial Court has held the appellants guilty of commission of offence and sentenced as described below:- 2 Conviction Sentence Under Section 452 of I.P.C. : R.I. for 1 years each and fine of Rs. 100/- each in default of payment fine 7 days additional S.I. Under Section 294 of I.P.C. : R.I. for 1 month each and fine of Rs.100/- each in default of payment of fine 7 days additional S.I. Under Section 506(B) of I.P.C. : R.I. for 1 years and fine of Rs.100/- each in default of payment of fine 7 days additional S.I. Under Section 323 of I.P.C. : R.I. for 6 months each and fine Rs. Amount 100/- each in default of payment of fine 7 days additional S.I. Under Section 323 of I.P.C. : R.I. for 6 months each and fine of Rs. 100/- each in default of payment fine 7 days additional S.I. 2. In this case, three accused persons namely Shankar, Sanjay and Jairam were put to trial. Jairam was acquitted by the trial Court and rest were convicted and sentenced as stated above. During pendency of appeal, appellant No. 1 Shankar passed away and his appeal stood abated. 3. Case of the prosecution, in brief, is that on 03.11.2005, PW-3 Smt. Asmati made a written report to the Deputy Superintendent of Police, Special Police Station District- Durg (Ex.P-1) that her son- Ishwari (PW-11) has opened a T.V., Tape and C.D. repairing shop at Minimata Nagar Khursipara, Bhilai and on 30.10.2003, when they were setting in the shop, the appellants came and demanded CD on rent. Ishwari (PW-11) asked for the previous rent of the CD, then only he will provide the CD, the appellants Shankar (deceased appellant) and Sanjay started abusing him filthily and also abused them in 3 the name of caste and went away with the threatening to come back. After sometime, appellants Shankar (deceased appellant) & Sanjay came in the shop with Danda (wood Stick) and Iron rod in their hands along with their family members namely Jairam (acquitted accused), Surendra, came to the shop and started abusing filthily and beating, at that time, her husband Prandas (PW-5) also came to save the son who was also subjected to filthy abuse and assault. The people nearby Chhedi Lal (PW-10), Bisauha and other persons somehow distant the quarrel. On the basis of such report, first information report was registered and investigation was set on motion. 4. After completion of the investigation, a charge sheet under Section 452, 294, 506(B) & 323 (twice) of IPC and Section 3 (1) (10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the Special Act”) was filed followed by framing of charge, which was denied by the appellants and claimed for trial. 5. In order to prove its case, prosecution examined as many as 11 witnesses and exhibited 15 documents. The statements of the appellants under Section 313 Cr.P.C. was recorded in which, they claimed innocence and stated that they have been falsely implicated. They also claimed that the complainant party also assaulted one Surendra which was reported to police station – Khursipara, upon which, crime was registered and charge- sheet has been filed in the competent Court and pending before the Chief Judicial Magistrate, Durg and in order to save 4 themselves from the case and pressuring the appellant, the false report has been lodged. In their defence, appellants have examined one witness i.e. Shivnandan (DW-1), head constable. By the judgment impugned, the appellants have been convicted and sentenced as stated herein above. However, the accused - Jairam was acquitted by the learned trial Court. 6. The learned counsel for the appellant argues that the learned trial Court committed an error of law in convicting and sentencing the appellants for the offences as stated above. He further submits that the report was lodged after considerable period of time. There is a reason/motive to implicate the appellants in a false case in order to save the injured/ complainants from a criminal case which has already been pending against them. He submits that the learned trial Court failed to appreciate the evidence brought before it in its proper perspective and erroneously held the appellants guilty of the aforesaid offences. He further submits that the conviction of the appellants under Section 452 of the IPC is not made out as admittedly in the written complaint, the alleged incident said to have been committed outside the shop and no such evidence is available on record that the appellants forcefully entered the premises to cause injury to the injured persons. To buttress this contention, he placed reliance upon the decision of Madhya Pradesh High Court in the matter of Dr. Taranjeet Singh Gujral V. State of Madhya Pradesh passed in Criminal Revision No.2147 of 2023 dated 27.07.2023 and also the Judgment passed by the Kerala High Court in the 5 matter of Shine Justus and others V. State of Kerla passed in Crl. A No. 372 of 2007 dated 01.09.2022 and submits that since the alleged incident occurred outside the shop, conviction of the appellants under Section 452 of IPC is bad in law. Apart from this, he submits that conviction of the appellant under Section 506-B of IPC is also liable to be set aside because in order to convict the appellants under this Section, the ingredients of Sections 503 of IPC is not proved as it is not brought on record that because of the threatening given by the appellants, it has caused alarm to the complainant and others. To buttress this contention, he placed reliance upon the decisions of Supreme Court in the matters of Parminder Kaur V. State of Punjab, (2020) 8 SCC 811 and Mohd. Wajid V. State of U.P., (2023) 20 SCC 219 and the judgment passed by Punjab and Haryana High Court in the matter of Surinder Suri V. State of Haryana, 1996 SCC OnLine P&H 582. He further submits that conviction of the appellant for the offence under Section 294 of IPC is also bad in law in light of the evidence available on record. He also submits that though it has come on evidence that some obscene words were spoken by the appellants, but it is not brought on record that it has caused annoyance to the public or to the complainant, therefore, their conviction is bad in law. For conviction under section 323 of IPC, he submits that as the alleged incident is said to have been committed on 03.11.2003 and written report was lodged on 03.11.2003 after due deliberation, it goes to show that a false case has been made out and the statements 6 of the witnesses is not of sterling quality to sustain conviction and for that, he placed reliance upon Rai Sandeep V. State (NCT of Delhi), (2012) 8 SCC 21. He further submits that there was previous enmity amongst the family and in absence of any independent witness supporting the case, conviction of the appellants is bad in law and for that purpose he placed reliance upon the judgment of Hon’ble Supreme Court in the case of Khema v. State of U.P., (2023) 10 SCC 451 in sum and substance, he submits that the appeal deserves to be allowed and the appellants be acquitted from all charges and the impugned judgment be set aside. 7. Per contra, learned State counsel submits that the statement of the witnesses clearly goes to show the involvement of the appellants in the aforesaid crime. She submits that the learned trial Court has meticulously examined the statement of the witnesses and give a categorical finding of conviction against the appellants. She submits that the injured was examined on the same day and MLC report has also been marked and simply because the report was lodged belatedly would not lead to irresistible conclusion that a false case has been lodged against the appellants. The meritorious finding recorded by the learned trial Court does not require interference and appeal deserves to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions and perused the records with utmost circumspection. 9. To deal with the submissions with regard to the conviction 7 under Section 452 of the IPC, it would be necessary to understand the genesis of the case. The prosecution brought his case on the premise that the complainant’s son runs a CD, TV, tape-recorder repairing shop. It is also a case of the prosecution that previous to the happening of the incident, the appellants came there and demanded CD which was refused on account of earlier non-payment, they went back and came back there along with Danda (wood stick) and Iron rod and took out the complainant’s son and assaulted outside the shop. In this context, it would be essential to go through the typed written report which marked as Ex.P-5 which was given on 3.11.2003. Recital of the complaint expressly indicates that the assault was not made inside the shop, rather it was made outside the shop. The statement of PW-3 Yasmati states that the appellant entered the shop and there the assault was made and thereafter, they ran away. The incident is said to have accused on 28.10.2000. The report was lodged on 03.11.2003. The report is a typed one which contains the thumb impression of the PW-3. Though in the report, she states that the incident had occurred outside the shop, whereas in her statement before the Court she has improved the fact and stated that incident has occurred inside the shop. She says that he has gone to lodge the report on same day, but Ex.P-5 clearly indicates that it was lodged on 03.11.2003 and she also states that she does not know who has typed the Ex.P-5. She also does not remember as to who has given the written report Ex.P-5 in the police station. She does not remember as to whether the Ex.P-5 report was prepared by 8 the Advocate or not. She states that date 03.11.2003 written in the Ex.P-5 is wrong. She also shows her ignorance as to what is written in the Ex.P-5. From the statement of this witness, it appears that she does not know as to what is written in the Ex.P-5, she says that the report was lodged on the date of incident i.e. 30.10.2003, whereas in the report itself, the date is mentioned as 03.11.2003 and FIR was lodged on 28.11.2003, therefore, it appears that this witness is giving a variance statement on different occasions and that too when she does not know what is written in the FIR and improves her statement in the Court. It would be essential to add here that in order to attract 452 of IPC, the incident ought to have occurred inside the shop. In this context, it would be apt to notice the observation made by the Hon’ble High Court of Madhya Pradesh in case of Dr. Taranjeet Singh Gujral (supra):- “With this background of the laws, reverting back to the case in hand, a plain reading of the contents of the FIR as well as the statements of the relative of the deceased and the witnesses and on perusal of suicide note left by the deceased, it is apparent that all the witnesses have reiterated the same thing more or less. Further, in the postmortem, no sign of injury has been found on the body of the deceased, however, in the postmortem report it is mentioned that at the time of incident, the deceased was in inebriated condition and on internal examination of the dead-body, large amount of alcohol was found. In the present case, even if the allegations as contained in the FIR and statements of the witnesses are taken as it is, even then it cannot be said that the petitioners have instigated the deceased to commit suicide. Further, on perusal of the FIR and the statements of the witnesses, it is also evident 9 that at the time of incident, the deceased was sitting in his shop and the accused persons dragged the deceased out of his shop and beaten him. Thus, the allegation that the accused persons entered into the shop of the deceased and committed marpeet, prima facie appears to be incorrect. In fact, the accused persons did not commit house- trespass having made preparation for causing hurt to the deceased. As per the contents of the FIR itself, the marpeet has been committed outside of the shop.” Similar observation was made by Hon’ble High Court of Kerala at Ernakulam in the Case of Shine Justus (supra):- 10. As the genesis of the incident appears to be doubtful as to whether it has occurred inside the shop or outside the shop, this Court is of the view that the conviction of the appellant under Section 452 of the IPC is based on wrong appreciation of evidence by the learned Trial Court, therefore, the conviction of the appellant under Section 452 is set aside. 11. In order to appreciate the submissions with regard to conviction under Section 506-B IPC, it would be apt to quote of Section 503 of the IPC which defines the criminal intimidation. “503. Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.— A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B’s house. A is guilty of criminal intimidation.” 10 12. Hon’ble Supreme Court in the case of Parminder Kaur (Supra) while dealing with the offence of criminal intimidation has held as follows. V. Charge of Criminal Intimidation “26. Proving the intention of the appellant to cause alarm or compel doing/abstaining from some act, and not mere utterances of words, is a prerequisite of successful conviction under Section 506 IPC [Manik Taneja v. State of Karnataka, (2015) 7 SCC 423, para 12: (2015) 3 SCC (Cri) 132] The trial court has undertaken no such separate analysis or recorded any finding on this count, thus calling into question the conviction for criminal intimidation. Further, the nature of this charge is such that it is a derivative of the main charge of "procuration of minor girls". Given the facts of this case where the common testimony of PW 1 on both charges has been doubted, it would be unwise to rely upon it as the sole piece of evidence to convict the appellant for criminal intimidation without any other corroboration [Kamij Shaikh v. Emperor, 1946 SCC On Line Pat 182.” 13. Further in case of Mohd Wajid (Supra), the Hon’ble Supreme Court held that intention to cause alarm to the complainant is sine qua non and observed as under:- “32. A bare perusal of Section 506 IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant.” 14. In light of the above judgments, the evidence brought on record is required to be looked into with great caution. PW-3 Yashmati in her statement before the Court does not speak anything that any threatening of dire consequences was given by the appellants. PW-5 Prandash also does not speak anything with regard to the threatening and dire of consequences or criminal 11 intimidation. Chhedi Lal PW-10 is also silent about any criminal intimidation. PW-11 Iswari Prasad Sonwani in one line states that the appellants were saying that they will be crushed by the truck. In her police statement Ex.-D-1 where Yashmati (PW-3) says that she was threatened of dire consequences by the appellant whereas in her Court statement, he states that she was threatened by crushing by truck. The factum of crushing by truck is a material contradiction or omission in her police statement. Therefore, the convictions of the appellant under Section 506-B of the IPC appears to be based on wrong appreciation of evidence by the trial Court. Apart from this, no witnesses has stated that it has caused any alarm to the witnesses to constitute the offence under Section 506 of the IPC as held by the Hon’ble Supreme Court in Mohd. Wajid (Supra). Therefore, the conviction of the appellants under Section 506(B) IPC is set aside. 15. Now, the question that arises for consideration as to whether the conviction of the appellant under Section 294, 323 of the IPC can sustain the scrutiny of this Court. In order to appreciate this, it would be to appropriate to quote Sections 294 and 323 of IPC as under:- “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.” 12 “323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” 16. Hon’ble Supreme Court in case of N.S. Madhanagopal and another Vs. K. Lalitha reported in (2022) 17 SCC 818 has held that to prove the offence under Section 294 IPC, mere utterance of obscene words are not sufficient but there must be further proof to establish that it was to the annoyance of others. The prosecution witnesses have deposed with regard to utterance of obscene words but as to whether it has caused annoyance to them is locking in the case, Therefore, conviction of the appellants is set aside. 17. Lastly, this Court would deal with validity of conviction of the appellants under Section 323 IPC. From the evidence gathered on record, it appears that some incident had occurred on 30.10.2003 on account of rending a CD, but it also appears that report was lodged after period of delay and in order to attract serious offences, the story appears to be improved. But the facts remains that the injured persons suffered injuries also proved from the MLC of the persons, therefore, the conviction of the appellant under Section 323 of IPC appears to be based on proper appreciation of evidence does not require any interference. Counsel for the appellants also that the sentence of the appellants may be reduced to the period undergone. The appellant remained in jail for 4 days. There is no minimum sentence provided in the above stated Section. According to the 13 learned counsel for the appellants, the fine amount has already been deposited by them. The punishment under Section 323 IPC can be of fine only. The incident had occurred on 30.10.2003 and the appellants were granted bail and does not appear that they misused the liberty and after their conviction, they were also granted bail by this Court, therefore, ends of justice would served, if they are sentenced to the period already undergone by them. Order accordingly. 18. The appellant is reported to be on bail. His bail bond will remain in force for six months in view of section 481 of BNSS, 2023. Record be sent back with copy of this judgment. Appeal thus, partly allowed as indicated above. Sd/- (Sachin Singh Rajput) JUDGE Vaibhav