State Of Uttarakhand vs Adnan Ahmad

Alok Kumar Verma, J

Present respondent - accused was convicted by learned Trial Court for the offence under Section 294 of the Indian Penal Code, 1860 (in short, “IPC”) and he was sentenced which he already undergone and a fine of Rs.500/-.

Against the judgment dated 21.01.2006, passed by learned Trial Court, respondent filed a Criminal Appeal (No. 27 of 2006). The said Appeal was allowed. Allowing the Criminal Appeal on 17.07.2007, learned District and Sessions Judge, Haridwar, set aside the judgment of learned Trial Court and acquitted the respondent of the charge of Section 294 IPC.

Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that on 11.12.1998, when Inspector Suresh Singh Chauhan (PW1), informant, and other police personnel were present for a routine-check and were searching for the wanted criminals, on the information of the informer, it was found that the accused with his associates were sitting in two cars and were singing “Aaja meri jaan mausam suhavna hai aa gale lag ja” towards the passing girls. At that time, Inspector J.P. Juyal (PW2) was also with them. Respondent-accused was arrested at 6 p.m. During the search of the accused person, a knife was recovered from his possession. The recovered knife was sealed. In spite of an endeavour, no public witness could be secured. The recovered knife was taken into possession vide recovery memo (Ext. Ka 1). An FIR was lodged by Inspector Suresh Singh Chauhan (PW1). After completion of investigation, charge-sheet was filed.

Statement of the accused was recorded. He pleaded not guilty and claimed to be tried.

The prosecution examined Inspector Suresh Singh Chauhan (PW1) and Inspector J.P. Juyal (PW2).

Respondent-accused was examined under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution.

Mr. S.T. Bhardwaj, learned Deputy Advocate General, contended that learned Appellate Court has committed illegality by disbelieving the evidence of the prosecution. Learned Appellate Court did not consider the evidence of the prosecution that the respondents were singing a obscene song like, “Aaja Meri Jaan Mausam Suhana Hai Aa Gale Lag Ja” in a public place.

On the other hand, Mr. Naitik Bhatt, learned Amicus Curiae, has supported the impugned judgment. He submitted that the Government Appeal, filed against the acquittal of the co-accused persons, has already been dismissed by this Court.

Provisions of Section 294 IPC are as follows:-

“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.”

In order to secure a conviction under Section 294 IPC, the provision of Section 294 IPC requires the following particulars to be proved by the prosecution:-

(a) the accused persons did any obscene act in any public place, or sang, recited or uttered any obscene songs, ballad, or words in or near any public place, and, (b) the aforesaid act or acts caused annoyance of others.

The obscene act or sing must cause annoyance. Under Section 294 IPC unless annoyance is caused, the act cannot be said to be obscene. In the present case, the respondent-accused was accused of uttering obscene words towards the passing girls, but none of them has been examined by the prosecution. Prosecution has not examined any person who says that he/she was annoyed by the alleged act of the respondent-accused.

According to the prosecution, in spite of an endeavour, no public witness could be secured. The alleged incident took place around 6 pm. The contention of the prosecution that public witnesses could not be secured, is not found to be acceptable. Under these circumstances, it appears that if a public witness had been secured and examined by the prosecution, his evidence would not have supported the prosecution’s case.

On a detailed examination and scrutiny of the evidence of the prosecution, this Court upholds the view taken by learned Appellate Court. In my considered view, the prosecution has failed to establish the commission of alleged offence by the respondent-accused beyond all reasonable doubt. He deserves benefit of doubt. I am, therefore, in complete agreement with the view taken by learned Appellate Court and see no reason to interfere with the impugned Judgment and order, passed by learned Appellate Court.

As a result, the instant appeal is liable to be dismissed; the same is dismissed accordingly.