M.G. Giratkar, J.

Heard learned counsel Shri Deo for the applicants and Shri Sirpurkar, learned Additional Public Prosecutor for the State/respondent.

2. Rule. Rule made returnable forthwith.

3. The present revision is against the judgment of conviction passed by the Judicial Magistrate First Class, Gadchiroli in Summary Criminal Case No. 337/2014 by which the applicants were convicted for the offences punishable under Sections 341, 186, 509 and 506 read with Section 34 of the Indian Penal Code. The said judgment was challenged before the Sessions Judge, Gadchiroli in Criminal Appeal No. 34/2016. Said appeal was partly allowed by the Sessions Judge. The conviction for the offence punishable under Section 506 read with Section 34 of the Indian Penal Code came to be quashed and set aside but maintained the judgment of the Judicial Magistrate First Class for the offences punishable under Sections 341, 186 and 509 read with Section 34 of the Indian Penal Code.

4. The case of the prosecution against the applicants (hereinafter referred to as 'accused') in short is that the complainant was working as secretary of gram panchayat and accused were members of gram panchayat. On 29-3-2014, complainant along with her team was recovering the house tax from the villagers of Village Navegaon. Accused persons restrained her and threatened her not to recover the house tax and told her if she wanted to make the recovery, she should come in the night. They were not allowed to proceed for recovery of tax. On her report, crime was registered. After complete investigation, charge-sheet was filed before the Judicial Magistrate First Class, Gadchiroli. Charge was framed against both the accused. Prosecution has examined only three witnesses. Statements of accused came to be recorded under Section 313 of the Code of Criminal Procedure. After hearing the prosecution and defence, learned Judicial Magistrate First Class, Gadchiroli convicted the accused as stated above. The appeal was partly allowed by the Sessions Judge, hence, the present revision.

5. Heard learned counsel Shri Madhur Deo for the accused. He has submitted that offence punishable under Section 186 of the Indian Penal Code should not have been charged against the accused. There is specific bar under Section 195 of the Code of Criminal Procedure. Learned counsel has submitted that for the offence punishable under Section 341 of the Indian Penal Code, there is no evidence to show that the complainant was restrained from proceeding to any direction. Moreover, there are material omissions in her evidence. In respect of offence punishable under Section 509 of the Indian Penal Code, learned counsel has submitted that there was no any intention on the part of accused to utter any words or gesture. Learned counsel has submitted that prosecution has not examined material witnesses who have stated the real fact.

6. Learned counsel Shri Deo has submitted that the words 'in the night' used and uttered by the accused not taken in a proper context. Learned counsel has submitted that it was the duty of the prosecutor to examine all the material witnesses. In support of his submissions, he pointed out decision in the case of Darya singh and others Vs. State of Punjab, (1965) AIR SC 328. Learned counsel has pointed out paragraph no. 11 of the said judgment. Learned counsel has submitted that obscene words or gesture cannot be uttered by two persons. This type of act is of only one person and both accused cannot be charged for the offence punishable under Section 509 of the Indian Penal Code. In support of his submissions, he pointed out decision in the case of Haridas s/o Ajab Shinde Vs. State of Maharashtra, (1997) CriLJ 122. Learned counsel has pointed out paragraph no. 7 of the judgment and submitted that framing of charge with the aid of Section 34 was entirely incorrect and the charge should have been framed substantively against the accused who was alleged to have uttered the offending words.

7.