Jai Chand vs State of H.P.

Bhawani Singn, J.—This revision arises out of the judgment of Addl. Sessions Judge (2) Shimla, in criminal appeal No. 40-S/10 of 1986, decided on February 16, 1987, whereby conviction of all the Appellants, in that appeal, for an offence u/s 294 IPC was set - aside. However, the conviction of the Petitioner under Section, 354 IPC was upheld and the appeal was dismissed. It is against this conviction of the Petitioner u/s 354 IPC for three -months simple-imprisonment which has been assailed in this petition.

The facts, in brief, are that on August 13, 1985, two lady constables Bimla Devi and Geeta Devi went to take refreshment in a Tea Stall in Lower Bazar, Shimla, during lunch time. The accused were also. Sitting in the Tea Stall and started talking vulgar things with intention to cause annoyance to these ladies. Soon after the ladies left the place, the accused followed them and when the ladies had reached near the Post Office, one of the accused namely, Jai Chand gave a push to Bimla Devi and asked whether she was ready to accompany him to the cinema house to see a movie. This enraged Bimla Devi and she asked the accused if he had any sense of shame. The accused, thereupon: slapped her and the two Ors. caught the lady constable by her arms. At this stage Anr. lady Head constable Rama and constable Brij Bala happened to reach there. They arrested the accused Jai Chand and Mohan Singh on the spot while the third accused Surinder Kumar, who disappeared at that time, was apprehended after some time. The matter was reported to the police by Bimla Devi and a case under Sections 294 and 354 IPC was registered against the accused. Investigation was followed by presentation of challan in the Court of Judicial Magistrate (3) Shimla. Here it ended in the conviction of the accused u/s 294 as well as 354 IPC. The appeal, against the sentence, succeeded to the aforesaid extent.

In order to understand the case, it is necessary to examine the material aspect of the prosecution evidence. Sunil Kumar. (PW. 1) states that he was sitting at his shop in Lower Bazar Shimla. It was day time. He found the accused and a girl abusing each other. One of the accused raised his hand to slap the girl but two lady constables, in plain clothes, came there from behind. The accused were arrested at the instance of the girl. They told the girl to beat the accused. This witness is an independent witness in the case. He has been declared hostile and when referred to his statement recorded u/s 161 Code of Criminal Procedure and particularly to portion marked ''A'' to ''A'' of statement Ex. PW. 1/A he stated that no such statement Was given by him to the police: He further denied that the accused had in his presence caught the girl and uttered-obscene words. No slap was given to the girl. People came at the spot arid they stopped the quarrel." The incident took place in Lower Bazar where sufficient people were coming, and going.

Tulsi Nand, Anr. independent witness in the case, has not been examined.

Lady-constable Bimla Devi (PW. 2) is the complainant. She states that the accused were talking non-sense in the shop and then near the Bombay Cloth House, accused Jai Chand pushed her and asked her to go to the movie and she said if he had any sense of shame. Then the accused slapped her while the other two accused caught her from the arms. In the meantime lady Head constable Rama and Brij Bala also reached there. By this she was defamed and she reported the matter to the police and First Information Report Ex.P.W.2/B was registered. In cross examination she states that numbers of persons were sitting in the shop and she could not say whether they also heard the accused talking non-sense or not. Number of person collected on the scene of occurrence and she did not know their names. She did not know the accused from before. She admits that in the Lower Bazar there is lot of rush. She also admits that the accused were brOrs. . Report Ex. PW 2/A was written by Moharir Head Constable in the presence of Rama and Brij Bala and the same is neither signed by the M.H.C. nor by the Station House Officer nor by her.

Geeta Devi (PW. 3) states that Bimla Devi was caught by the accused and one of them ran away from the scene while two accused were taken to the police station. She admits the presence of Sunil Kumar PW. 1 (examined) and Tulsi Nand (not examined) at the place of occurrence. She admits that large number of people were coming arid going at the place of occurrence. She further states that she saw the accused giving push to Bimla Devi and there was sufficient rush at that place. She further states that the accused pushed Bimla Devi and asked her to go to see the picture whereupon Bimla told him to feel ashamed for not walking properly. At this accused Jai Chand gave a slap at the face of Bimla. The statement of Bimla was recorded by M.H.C. in the police station. The accused were taken to the police station by Brij Bala whereas Rama remained at the spot. The third accused was caught later on. The spot was visited by Moharir Head Constable later on and Rama remained at the spot all alone. Then said that Rama went to the spot with M.H.C. She further states that when Bimla was slapped she raised a noise and said that she should be saved. Large number of people collected at the spot on hearing the noise. She denied the ''suggestion that the accused had neither given push to Bimla nor gave her a slap. She states that two accused, caught each of the hands of Bimla and they were released only when she was given a. slap.

Ms Rama (P.W. 4) states that she came at the place of occurrence when the quarrel was going on. The accused Jai Chand gave a slap to Bimla. She recorded her statement u/s 154 Code of Criminal Procedure and the same was Ex. PW. 2/A. She caught two accused at the spot, the third accused had run away from the scene. She admitted that Sunil Kumar (PW. 1) and Tulsi Nand were at the spot at that time.

The perusal of the evidence aforesaid shows that the prosecution had two independent witnesses, namely, Sunil Kumar (PW 1) and Tulsi Nand. It examined only Sunil Kumar. ''Sunil Kumar has not supported the prosecution case. He has admitted the incident not to the extent that Bimla was pushed and asked to go to picture and on refusal given a slap. He has. Specifically denied the use of obscene language and giving of slap by the accused. Rest of-the witnesses of the prosecution- are two lady constables. Their statements are not consistent. They vary on material aspects. It is. in evidence that the accused were not known to them. In such a situation, it is very difficult to believe that the accused would first push the lady: and then ask her to go to see the cinema with them. Such a story cannot be believed. It appears that the accused may have innocently touched the body of Bimla while passing through the crowded street whereupon she may have felt offended. This caused some altercation between the parties and Bimla and Geeta being police constables, unnecessarily exaggerated the issue in order, to teach a lesson to the accused and got this case registered against them. The cause of the incident is further clear from the statement of Geeta (PW. 3) when in her statement; she states that the complainant asked the accused as to why he could not walk properly. Lower Bazar Shimla is an overcrowded place. Many people move fast while Ors. move slowly and go on gazing and looking at the shops on both sides. The result is, they obstruct those who want to move fast. Pushing Ors. while moving fast is quite common as everyone knows that such happenings are very common. These things happen innocently. There is Anr. aspect of the case. The first information report appears to have been delayed intentionally to exaggerate the matter and it is not clear as to who has actually recorded it. No effort has been made to clear this aspect of the case.

In his examination u/s 313 Code of Criminal Procedure the accused have denied the incident in the manner alleged by the prosecution. They state that they were going in the Bazar and the complainant struck against them and started abusing.

Shri T.R. Chandel, learned Counsel appearing for the accused, submits that the offence against the accused has not at all been proved as the evidence adduced by the prosecution is thoroughly weak, shaky, contradictory and of doubtful nature. Incident has been thoroughly exaggerated, Shri Chandel asserts. Out of the only two independent witnesses only one has been examined and he has also not supported the prosecution version. The incident, as asserted by the prosecution has not been proved. The fact that Bimla was pushed, caught by hand and slapped has also not been proved. Relying on Ram Das Vs. State of West Bengal, Shri Chandel urges that even if push to the lady is admitted, in that case also it has to be proved that the push was given with intent to outrage the woman''s modesty, or with the knowledge that it would be outraged. Keeping in view the fact that the place is always over-crowded, it is absolutely clear that the incident had not taken place in the manner the prosecution asserts. The story is thoroughly unnatural and the evidence adduced by the prosecution is thoroughly contradictory and baseless. In these circumstances in view of the decision of the Supreme Court reported in Hanuman Vs. State of Haryana, benefit must go to the Appellant as the story of the prosecution is thoroughly exaggerated.

I see substance in the submissions of Shri T.R. Chandel. In view of the facts and circumstances discussed above and keeping in view the essential ingredients of Section 354 IPC no offence u/s 354 IPC is made out against the accused. Even if it is believed that some push was given to the lady, the same appears to have taken place normally, casually and innocently. The same cannot be held to be an act intentional and deliberate. It is fruitful to reproduce pares 15, 16 and 20 of S.P. Mallik Vs. State of Orissa and Another,

While examining the question as to whether any offence has been committed by this Petitioner or not it will be important to set out the ingredients of Section 354 of the I.P.C. under which he has been convicted. The essential ingredients of that section are the use of criminal force or assault against a woman for the purpose of outraging her modesty. It will thus be clear that the/e must either be an assault or the use of criminal force. Force has been defined in Section 349 and criminal force has been defined in Section 350. A person is said to use force when he causes motion or change of motion or cessation of motion to Anr. person or the above in substance, which brings it into contact with any part of the other person''s body or with anything that the other is wearing or carrying, or with anything so situated that such contact affects other''s sense of feeling. This should be done by his own bodily power or by use of some. Substance or by inducing any animal to change this motion The use of force will become criminal when it is done against the consent of any person with the intention of committing an offence of to cause injury, fear, of annoyance to any person. In this case admittedly no assault was resorted to. It was, however, essential to establish that force was used for the commission of offence. In my view, by merely putting a hand on the belly of a female by itself could not be construed, to indicate that the Petitioner was using criminal force within the meaning of this section for the purpose of committing an offence or injury or annoyance. None of these ingredients has either been proved or found. Culpable intention is an essential ingredient. The courts below have straightway presumed that all the ingredients of an offence u/s 354 are satisfied simply because the Petitioner put this hand on the belly of the lady. From this fact alone it cannot be inferred that the Petitioner intended to commit any offence or injury or annoyance to the victim lady. At the highest, it may be an attempt to draw the attention of the lady, which proved abortive. But that cannot be said to amount to use of criminal force. There is no evidence or even allegation that any restriction was caused to the movements of the victim lady nor it appears that any criminal act was intended to be committed- Even if the incident is accepted as true, the basic ingredients of the section have not been proved."

"16. In my view, the action of the Petitioner cannot be held to be an act of criminality-intentional and deliberate- but a pure accident for which the attitude of the lady in not filing a case is an indication. The action of the lady in immediately beating up the Petitioner and not moving the Court is indicative of the fact that the lady was quite satisfied with the punishment meted out by her and she did not want to go any" further in the matter. Even if the action of the Petitioner was accidental, the reaction of the victim could have been the same, and therefore, an inference of criminality cannot be based on her conduct. I am proceeding on the footing that the incident of beating of the Petitioner by the victim lady is proved though that itself is not free from doubt, since the two corroborative witnesses, P.Ws. 2 and 9 have resided from supporting the same. I, therefore, consider the incident as not proved."

20: Summing up I hold that the action of the Petitioner does not amount to an offence u/s 354 of the I.P.C.

The result of the aforesaid examination of the matter is that. The prosecution has failed to bring the case within the parameters of Section 354 of the I.P.C. and I am of the view that there is merit in this revision petition and the same is allowed. The conviction and sentence of the accused u/s 354 of the I.P.C. is set aside, he is acquitted pf the charge. Bail bonds and surety bonds, if any, executed by him at any stage of this case are hereby cancelled.