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Judgments of Supreme Court of India and High Courts

Smt. Kamla Das vs Janmajay Nayak 6 Acqa/110/2009 … on 27 September, 2018

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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Misc. Petition No.1119 of 2016

• Smt. Kamla Das W/o Ganesh Das Aged About 38 Years R/o.
Village Madhopali, Police Station And Tahsil Saraipali, District
Mahasamund Chhattisgarh
—- Petitioner
Versus
1. Janmajay Nayak S/o Hariram Nayak Aged About 53 Years R/o
Village Madhopali, Police Station Saraipali, District Mahasamund
Chhattisgarh
2. State Of Chhattisgarh Through The Police Station Saraipali,
District Mahasamund Chhattisgarh
—- Respondents
——————————————————————————————-

For the Petitioner : Shri Shikhar Sharma, Advocate
For respondent No.2/State: Ms. K. Tripti Rao, Panel Lawyer

——————————————————————————————-

Hon’ble Shri Justice Ram Prasanna Sharma
Order On Board
27.9.2018.

1. Heard on application for grant of leave to appeal under

Section 378(4) of CrPC.

2. This appeal has been preferred against judgment of

acquittal dated 29.7.2016 passed by Special Judge under the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short ‘the Act 1989’)/Sessions Judge,

Mahasamund (CG) in Special Criminal Case No.08/2015 wherein

the said Court acquitted the respondent for commission of offence

under Sections 294, 506 Part-II and 354 of the Indian Penal Code

and under Section 3(1)(xi) of the Act, 1989.

3. In the present case, though complainant/prosecutrix was

alleged to be a member of Scheduled Caste, but no official
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witness has been examined to prove her caste and also to prove

whether the said caste is included under the category of

Scheduled Caste. Some oral evidence is adduced by the

prosecution for establishing the caste of the complainant but the

same is not sufficient to establish her actual caste and therefore, it

was not established that the complainant/prosecutrix is a member

of Scheduled Caste.

4. Charges under Section 354 IPC and under Section 3(1)(xi)

of the Act 1989 are having common ingredients of assault or use

of criminal force against any woman intending to outrage or

knowing it to be likely that thereby her modesty will be outraged.

5. Prosecutrix (PW-1) and Ku. Priyanka (PW-4) are the

witnesses of the incident, but they have not stated before the trial

Court that any assault or criminal force is used against the

complainant. Force is defined under Section 349 and Criminal

Force is defined under Section 350 IPC which may be read as

under:

“349. Force.–A person is said to use force to
another if he causes motion, change of motion, or
cessation of motion to that other, or if he causes to any
substance such motion, or change of motion, or
cessation of motion as brings that substance into con-
tact with any part of that other’s body, or with anything
which that other is wearing or carrying, or with anything
so situated that such contact affects that other’s sense
of feeling: Provided that the person causing the motion,
or change of motion, or cessation of motion, causes
that motion, change of motion, or cessation of motion in
one of the three ways hereinafter described.

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First — By his own bodily power.

Secondly –By disposing any substance in such a
manner that the motion or change or cessation of
motion takes place without any further act on his part,
or on the part of any other person.

Thirdly — By inducing any animal to move, to change
its motion, or to cease to move.”

“350. Criminal force.–Whoever intentionally uses
force to any person, without that person’s consent, in
order to the committing of any offence, or intending by
the use of such force to cause, or knowing it to be likely
that by the use of such force he will cause injury, fear or
annoyance to the person to whom the force is used, is
said to use criminal force to that other. ”

6. From the definition of force and criminal force it is essential

that there must be motion or cessation of motion in the body of the

victim. But from the evidence it is not established that the

respondent caused any motion or cessation of motion in the body

of the victim. In absence of any basic ingredients of the offence,

charges under Section 354 IPC and Section 3(1)(xi) of the Act

1989 is not established.

7. For commission of offence under Section 294 IPC, the word

used must be obscene and obscene words are those words which

related to morality or sexuality of the victim. The prosecutrix

deposed some abusive words which are alleged to be uttered by

the respondent but the same is not positive for test of obscene

words. Looking to the statement of the prosecutrix and Priyanka

(PW-4) it appears that they have exaggerated their version as

what is stated before the investigating officer recorded under
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Section 161 CrPC and no explanation was given for exaggeration

for their version. The trial Court opined that offence under Section

294 IPC is not established and this Court has no reason to

substitute a contrary finding. Offence under Section 506 Part-II

IPC is established only when a person giving threat is determined

to execute the threat on the spot. Mere words are not sufficient to

establish the offence because words are mere enrage state of

mind and it cannot be held that the respondent was determined to

execute any threat. When the words were mere fury without

substance the trial Court recorded the finding of acquittal and this

Court has not reason to disturb the finding recorded by the trial

Court. This is not a case where the respondent should be

summoned for full consideration.

8. Accordingly, the application for leave to appeal is rejected.

Consequently, the CrMP stands dismissed.

Sd/-

(Ram Prasanna Sharma)
JUDGE
Bini

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