To secure a conviction under Section 294 IPC, the prosecution must prove that the accused committed an obscene act or sang an obscene song that caused annoyance to others.

JUDGMENT :

(Alok Kumar Verma, J.)

1. Respondents-accused persons were convicted by the Trial Court for the offence under Section 294 of the Indian Penal Code, 1860 (in short, “IPC”) and they were sentenced which they already undergone and a fine of Rs.500/- each. They were also convicted for the offence under Section 4/25 of the Arms Act, 1959 (in short, “Act, 1959”) and they were sentenced which they already undergone and a fine of Rs.500/- each.

2. Against the judgment dated 21.01.2006, passed by learned Trial Court, respondents-accused persons filed a Criminal Appeal (No.34 of 2006). Accepting the appeal on 17.07.2007, learned District and Sessions Judge, Haridwar set aside the judgment of the trial court and acquitted the respondents-accused persons of the charges of Section 294 IPC and Section 4/25 of the Act, 1959.

3. 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 persons 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. Respondents-accused persons were arrested at 6 p.m. During the search of the accused persons, one knife each was recovered from their possession. The recovered knives were sealed. In spite of an endeavour, no public witness could be secured. The recovered articles were taken into possession vide recovery memo (Ext. Ka 1). An FIR was lodged by Inspector Suresh Singh Chauhan (PW1). After completion of investigation, charge-sheets were filed.

4. Statements of the accused persons were recorded. They pleaded not guilty and claimed to be tried.

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

6. Respondents-accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973. They denied all the incriminating evidence, produced by the prosecution.

7. 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.

8. On the other hand, Mr. Amar Murti Shukla, learned Amicus Curiae, has supported the impugned judgment.

9. 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.”

10. 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.

11. 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 respondents-accused persons were 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 respondents-accused persons.

12. According to the prosecution, in spite of an endeavour, no public witness could be secured. The alleged incident took place around 6 pm. The