Decided on November 28,1973

Banka Sahu Appellant
Mukta Sahu And Anr. Respondents


S.Acharya, J. - (1.) THIS is an appeal under Section 417(3) Code of Criminal Procedure against an order of acquittal, passed by the Subdivisional Magistrate, Bargarh on 8 -6 -1970 in 1. C.C. No 44 of 1969/Tr. No. 320 of 1969.
(2.) THE prosecution case in short is that on the date of occurrence by about 5 p.m. p.w. 2 had some quarrel with Nua Dei, wife of accused Mukta, as Nua Dei allegedly deposited some dirt in front of the some of p.w. 2. When they were quarrelling the accused persons came out of their house with Lathis in hand, abused p.w. 2 in filthy language and rushed at her to assault her. She drew the attention of the persons present there and went inside her house and closed the door. After some time p.w. 1, the husband of p.w. 2, who was away from the house, came back and found that the accused persons were standing near his house. On seeing p.w. 1 the accused persons abused him and rushed at him with an attitude to assault him. Out of fear p.w. 1 entered inside his house. On the above allegations the two accused persons (Respondents herein) stood their trial in the Court below. The Court below, on its own appreciation of the evidence on record. found that the occurrence as alleged by the complainant was established on the evidence on record. I shall deal with the correctness of the said finding later in this judgment. But having arrived at the aforesaid finding, the Court on an erroneous view of the law on the subject, acquitted the accused persons of the offence under Section 352, Indian Penal Code on the finding that on the aforesaid facts the accused persons could not be convicted of the said offence.
(3.) AN offence of assault, as defined in Section 351, Indian Penal Code is constituted when it is proved (i) that the accused made a gesture or preparation to use criminal force; (ii) that the same was made in the presence of the person in respect of whom the said gesture or preparation was made; (iii) that the accused intended or knew that his such gesture etc. would cause that other person to apprehend that criminal force would be used against him; and (iv) that such gesture or preparation did cause in the mind of the other person the apprehension that the accused would use criminal force against him. If the allegations of the complainant are accepted as correct, then on the said facts all the aforesaid necessary elements to constitute an offence of assault punishable under Section 352, Indian Penal Code are established. So as the Court below arrived at the finding that the complainant 's allegations were established, its conclusion that on the said facts an offence of assault punishable under Section 352, Indian Penal Code is not established is clearly erroneous.;

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