1969 P Cr (PLP)

(1) Contusion 2 '' in diameter on the left side of chest. (2) Contusion 3'' x " on the back side of right forearm. The injuries were simple in nature.

4. The appellants pleaded riot guilty to the charges and tried to suggest that a trump up charges was brought against them at the instance of Qasim S. H. O. of the said Police Station, in that Noor Hassan appellant, who was a contractor, had addressed a written complaint to the Inspector Anti‑Corruption and a copy of the same to the D. I.‑G. Police, in which he had charged the S. H. O. for having asked him to give two bags of grain for his mare, and on his refusal he was wrongfully confined. None of the appellants, however produced any defence.

5. The learned counsel for the appellants tried to argue that a trump up charge had been brought against the appellants due to the enmity of Noor Hassan with the S. H. O., and that the services of the complainant had been secured to punish him for having the audacity of complaining about his conduct to the D. I. G. and the Anti‑Corruption Department. He next argumed that the offence under section 294, P. P. C. could not be sustained, in that the reasonable possibility of the complainant having given an exaggerated version in regard to the appellants having sung an unobscene song could not be excluded. It is also contended that the offence under section 452, P. P. C. could not be constituted, in view of the fact that there was no walled enclosure and the courtyard was demarcated only by a wooden fence. Lastly, it was contended that the conviction of the appellants under section 323/34, P. P. C. if sustained, the sentence already undergone will meet the ends of justice.

6. I have been elaborately taken through the material evidence, and after giving the arguments addressed at the Bar by the learned counsel for the appellants and Mr. Manzoor Hussain appearing on behalf of the State, my earnest consideration, I have formed the opinion that so far as the main incident of beating is concerned, the same is proved to the hilt. I am not in the least impressed by the suggestion that the complainant had been used by the S. H. O. to bring a trump up charge against the appellants. It is hard to believe that the complainant, who is the gangman of the Railway Department should be amenable to the influence of the S. H. O. in particular when the appellants have not suggested any ill‑will against the complainant. Lastly but not the leastly, it is impossible to believe that the complainant should have come forward with a false case at the instance of the S. H. O., so much so that he should have got self‑suffered injuries on his mother‑in‑law and also come forward with a suggestion that the appellants had been passing to and fro in front of his house trying to make indecent overtures to the female inmates of the house. The conviction of the appellants under section 323/34, P. P. C., therefore, is well founded.

7. With regard to the conviction of the appellants under section 452, P. P. C., since the house of the complainant is hounded by a wooden fence, the entry of the appellants in the house and having given beating to Mst. Khandul, constitute an offence punishable tinder section 452, P. P. C.

8. This brings me to the conviction of the appellants under section 294, P. P. C. To constitute an offence under section 294, any one of the following ingredients must be proved: (1) That the accused has done "any obscene act in any public place." (2) That he "sings, recites or utters any obscene songs, balled or words, in or near any public place." The prosecution case is that the appellants allegedly while passing to and fro in front of the house of the complainant, had sung obscene songs, but none of the P. Ws. has cared to state what were the actual words of the songs so that it could be said with certainty whether the songs were obscene or not. The mere fact that the complainant and his mother‑in‑law contented themselves by saying that the appellants had sung obscene songs, cannot be considered to be sufficient, for it is one thing to allege a thing and quite different to prove it, and for the purpose of proof the actual words used must be before the Court to judge whether the songs were obscene or not. In this view of the matter, the conviction and sentence of the appellants under section 294, P. P. C. could not be maintained. They are, there fore, acquitted of this charge.

9. This brings me to the question of sentences under sections 452, and 323, read with section 34, P. P. C. There is no denying the fact that the appellants had beaten an elderly woman, but regard being had to the fact that they have under gone one month's imprisonment and also remained in the judicial lock‑up for 20 days, when the case was committed to the Court of Session, I think the ends of justice would be met by reducing the sentence to that of already undergone and a fine of Rs. 150 each, or in default four months' R. I. each under section 323/34, P. P. C. I order accordingly. I also reduce the sentence to the period of imprisonment the appellants have already undergone under section 452, P. P. C. with this modification the appeal is dismissed.

10. Out of the fine, if paid, a sum of Rs. 200 (two hundred,) should be given to Mst. Khandul as compensation. The fine should b‑a paid within one month, failing which the appellants will undergo the imprisonment in default of the fine. Order Accordingly.