Bombay High Court
Pyarelal Maganlal Jaiswal vs State Of Maharashtra And Others on 21 August, 1995
Equivalent citations: 1996CRILJ989
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT
1. Judgment of acquittal passed by the 2nd Judicial Magistrate, First Class, Buldana, on 3-3-1992, whereby the said Court has acquitted the respondent No. 2 for the offence punishable under Section 500, I.P.C., has compelled the Complainant/appellant to file this appeal against acquittal.
2. The brief facts which led to filing of the complaint by the present applicant (for short 'complainant') under Section 500, I.P.C. against the respondent No. 2 Shivaji Deorao Dethe (for short 'accused') are that on 20-11-1988 a function was organised at village Chandol to felicitate newly elected M.L.A. The complainant as well as accused were present in the said function on dias and the complainant was the member of the reception committee. There was good gathering though there is dispute about the number of people. In the said meeting the accused in his speech while making gesture towards the complainant uttered that Pyarelal Seth (complainant) and Sahebrao Wani do not have any regard for leaders and they do not care them and they get their work done by offering money to officers and sahibs and they are corrupt persons. The said speech of accused was also reported in the newspapers "Tarun Bharat; and 'Dainik Ajantha' published from various places. Since according to the complainant by aforesaid utterance of the accused the reputation of the complainant was harmed, he was compelled to file a complaint under Section 500, I.P.C. in the Court of Judicial Magistrate, First Class, on 6-12-1988 against the present accused.
3. The complainant examined himself as C.W. 1 and also examined Nathusingh Chanda, C.W. 2, Vishnu Dagdu C.W. 3, Babanrao Annaji C.W. 4 and Harish Chavan C.W. 5 and also placed on record photographs with negative Exhs. 42 to 51. The statement of the accused was recorded under Section 313, Cr.P.C. in which he denied having uttered aforesaid words and also in defence the accused examined Kiran Tulshiram Kichkule D.W. 1. Digambar Sawale D.W. 2, Bhagwan Date, D.W. 3 and Dinkar Mule, D.W. 4.
4. The learned Judicial Magistrate, First Class after recording the evidence and hearing the learned counsel for the parties, by the order dated 3-3-1992 acquitted the accused for the offence punishable under Section 500, I.P.C.
5. Mr. S. A. Jaiswal, the learned counsel for the complainant strenuously urged that the trial Court has committed serious error of law and fact in acquitting the accused for the offence punishable under Section 500, I.P.C. According to Mr. S. A. Jaiswal, the learned counsel for the complainant, there was no variance at all in the deposition of the witnesses produced by the complainant, much less material variance, on the basis of which the trial Court could have acquitted the accused for the offence punishable under Section 500, I.P.C. The learned counsel for the complainant submits that the substance of the deposition about the utterances made by accused in the public speech is same and since the substance of the utterances attributed to the accused is testified in the same manner by all the witnesses, the guilt of the accused is fully proved beyond reasonable doubt. In support of his submission. Mr. S. A. Jaiswal, the learned counsel for the appellant relied upon the decision of the Apex Court in Balraj Khanna v. Moti Ram, .
6. On the other hand, the learned counsel for the accused. Mr. A. S. Jaiswal, supported the findings recorded by the trial Court and according to him since the trial Court has taken the view after appreciating the evidence on record, this Court should not in the appeal against acquittal disturb the said judgment. Mr. A. S. Jaiswal, the learned counsel for the accused submitted that even in the matters of prosecution relating to slander, the actual words spoken by the accused have to be determined by the Court and only then an offence punishable under Section 500, I.P.C. can be said to have been established. In support of his contention, the learned counsel for the accused relied upon the decision in Chhotubhai Alladin Khoja v. Karimuddin Bhai Rahim Bhai, (1962 Nag LJ Note 14). I have considered the respective arguments. From the evidence on record it can be said to be well established that on 20-11-1988 the felicitation programme was arranged at village Chandol in which the complainant as well as accused were present. The said ceremony had good gathering and in his speech before the said gathering, the accused spoke that Pyarelal seth (complainant) and one Sahebrao Wani do not have regard for leaders and they do not care for them. They get their work done by giving money to the officers and they are corrupt persons. C.W. 1 Pyarelal complainant himself has clearly deposed that in the said meeting the accused did utter the aforesaid words and the said utterances harmed the reputation of the complainant. C.W. 2 Nathusingh Mohansingh deposed before the Court that on that day in his speech, the accused told that Pyarelal Seth and Sahebrao of Bhadgaon both indulged in illegal business and do not care for the leaders. C.W. 3 Vishnu Dagdu testified that Pyarelal Seth and Sahebrao Wani do not care for these leaders. None respect them. They get the work done by offering money. They are corrupt persons. C.W. 4 Babanrao Annaji in his deposition before the Court stated that Pyarelal Seth and Sahebrao Wani both need no leaders. They do not ask them and that they get the work done by offering money to Sahebs and officers and they are corrupt. C.W. 5 Harish Chavan is a photographer and he has proved the negatives placed on records Exhs. 42 to 51 showing the presence of the accused on the dias.
7. All these four witnesses C.W. 1, C.W. 2. C.W. 3 and C.W. 4 have been cross-examined but about the utterances attributed to accused the deposition all these witnesses has not at all been demolished. The substance of the utterances made by accused in the said meeting is that the complainant and one Sahebrao Wani do not care for the leaders and for their work they offer money to the officers and Sahebs and they are corrupt persons. The deposition of these four witnesses is consistent on this aspect. Merely because there is some variation of words, it cannot be said that there is any difference in the utterances attributed to accused. The presence of the accused is not disputed and even the defence witnesses have admitted that the accused was present in the said meeting. In cross-examination nothing could be elicited which could create doubt about the testimony of C.W. 1, C.W. 2., C.W. 3 and C.W. 4.
8. The trial Court despite the aforesaid evidence by the erroneous approach held that there has to be exact corroboration of utterances by all the witnesses and discarded the testimony of C.W. 1, C.W. 2, C.W. 3, and C.W. 4 on the misplaced finding that there was discrepancy in the testimony of these witnesses. The deposition which has been referred to above of all these four witnesses is consistent on the point that Pyarelal complainant was shown to be corrupt in his speech by the accused.
9. In Balraj Khanna v. Moti Ram, , the Apex Court held as under :
"26. After a consideration of the various decisions referred to above, we are of the opinion that the proposition laid down in English decisions dealing with libel that the actual words alleged to be used must be stated in the indictment cannot be applied on all fours when dealing with the cases of defamation by spoken words under Section 499, I.P.C. It will be highly desirable no doubt if the actual words stated to have been used by an accused and which are all to be defamatory are reproduced by the complaint. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. But in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim. The object of having, if possible, the actual words or the statements before the Court is to enable it to consider whether those words or the statements are defamatory in nature. That purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the Court by the complainant are held to be not defamatory, it will mean that the complainant will have to lose. Therefore, it is to his interest to get a proper adjudication from the Court that as far as possible the words spoken to the statements actually made and which he alleges to be defamatory are before the Court. But a complaint cannot be thrown out on the mere ground that the actual words spoken or the statements made have not been stated in the complaint. From the point of view of accused also, it is necessary that the matters alleged to be defamatory in the complaint must be so stated as to enable them to know the nature of the allegations that they have to meet."
10. The trial Court did not advert to the settled legal position propounded by the Apex Court relating to defamatory spoken words and oral statements and on unsustainable ground found the evidence led by the complainant to be inconsistent when in fact there was none and the trial Court acted on the height of technicality in rejecting the testimony of C.W. 1, C.W. 2, C.W. 3 and C.W. 4. Therefore, the finding recorded by the trial Court to the effect that in view of discrepant evidence led by complainant he has not been able to prove that on 20-11-1988 at Village Chandol the accused uttered the alleged words, is perverse and liable to be set aside.
11. The learned counsel for the accused submitted that all the aforesaid witnesses of complainant namely C.W. 1. Pyarelal, C.W. 2 Nathusingh Chanda, C.W. 3, Vishnu Dagdu and C.W. 4, Babanrao Annaji are tutored witnesses and their deposition is parrot-like and, therefore, they are not reliable and their evidence should have been discarded. There is no merit in the contention of the learned counsel for the accused. The evidence led by the complainant is clinching, consistent and trustworthy and establishes beyond reasonable doubt the guilt of the accused for the offence punishable under Section 500, I.P.C.
12. I heard the learned counsel for the parties on the question of sentence. Mr. A. S. Jaiswal, the learned counsel for the accused, submitted that the incident is of the year 1988 and looking to the age, character and antecedents of the accused, he should be extended benefit of probation under Section 360, Cr.P.C. The learned counsel for the accused also submitted that there is no previous criminal case against the accused and he is not the habitual offencer. Mr. S. A. Jaiswal, the learned counsel for the complainant/appellant, on the other hand submitted that since the reputation of the complainant has been defamed, therefore, no lenient view should be taken while sentencing the accused/appellant.
13. On thoughtful consideration. I am of the view that since the matter relates to the year 1988 and more than 7 years have elapsed since then and the accused is not a habitual offender, nor, he is involved in any other criminal proceeding looking to his age, conduct, character and antecedents and all other relevant circumstances, interest of justice would be met if instead of sentencing the accused to any punishment, he is directed to be released after admonition on his entering into a personal bond of Rs. 5,000/- for maintaining good conduct for a period of two years and not to indulge into such crime.
14. The criminal appeal is partly allowed. The judgment of acquittal passed by the Judicial Magistrate, First Class, Buldana, on 3-3-1992 is quashed and set aside. The accused/respondent No. 2 is convicted for the offence punishable under Section 500, I.P.C. and is extended benefit of probation under Section 360, Cr.P.C. on the terms and conditions as aforesaid. Order accordingly.
15. Appeal partly allowed.