Judgment ( 1. ) THIS criminal appeal under Section 374 (2) of the Code of Criminal procedure has been preferred by the appellant being aggrieved by the impugned judgment, finding and sentence dated 7-7-1999 passed by the Special Judge, scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Mandla in special Case No. 61/1998, whereby the appellant has been convicted under section 294 of IPC for fine of Rs. 500/-, in default of payment of fine, SI for two months, under Section 452 of IPC for one years RI with fine of Rs. 1000/-, in default of payment of fine, SI for four months and under Section 323 of IPC for three months RI. All the sentences are directed to run concurrently. ( 2. ) THE prosecution case in short is that on 28-2-1998 at about 6. 00 p. m. when complainant Karorilal Jharia, Teacher in Education Department, resident of Niwas was at his house, appellant entered in his house, used filthy language, threatened and caused marpeet by lathi, on account of which he sustained injuries. On the basis of his written report, FIR was registered at Police Station niwas. He was sent for medical examination and was examined by Dr. Archana sharan (P. W. 4), who found injuries on his person as detailed in the medical report (Exh. P-2a ). Spot map was prepared. Statements of the witnesses were recorded under Section 161, Cr. PC. After completing the investigation, the charge-sheet was filed against him under Sections 452,294, 506-B, 323 and 336 of IPC read with Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act in the Court of Special Judge, Mandla. ( 3. ) THE accused was charged under Sections 294,452,323,506 (Part II)of IPC and Section 3 (1) (x) of SC/st Act. He denied the guilt and claimed to be tried mainly contending that he is innocent and has been falsely implicated. Prosecution examined as many as 7 witnesses and appellant-accused examined two witnesses. After appreciating the evidence, the Trial Court found him guilty under Sections 294,452 and 323 of IPC and convicted and sentenced thereto as stated herein above in Para No. 1 of this judgment. Being aggrieved by the impugned judgment, this instant appeal has been preferred by the appellant on the grounds mentioned in the memo of appeal. ( 4. After appreciating the evidence, the Trial Court found him guilty under Sections 294,452 and 323 of IPC and convicted and sentenced thereto as stated herein above in Para No. 1 of this judgment. Being aggrieved by the impugned judgment, this instant appeal has been preferred by the appellant on the grounds mentioned in the memo of appeal. ( 4. ) SHRI S. K. Mishra, Advocate was engaged by the appellant as his counsel but he did not appear on the date of hearing on 9-4-2009 to argue the case. The appeal was pending since 1999. Therefore, Ku. Manju Khatri, advocate has been appointed from the panel of the High Court Legal Aid services Committee to argue the case on behalf of the appellant so that the appeal may be disposed of expeditiously. ( 5. ) KU. Manju Khatri, learned Counsel for the appellant submitted that the Trial Court has not appreciated the evidence in proper perspective. Karorilal (P. W. 1), Ku. Roshni Bai (P. W. 2) and Smt. Savitri Bai (P. W. 3) belong to the same family. They are related and interested witnesses. There are several contradictions and omissions in their statements. Govind (P. W. 5), who was an independent eye-witness has not supported the prosecution case. The prosecution has failed to prove the case beyond reasonable doubt. Learned counsel further submitted that appellant was a Government servant, hence the benefit of Probation of Offenders Act, 1958 ought to have been given to him. The finding of guilt is erroneous, which deserves to be set aside and the appellant is entitled for acquittal. ( 6. ) ON the contrary Shri S. S. Bisen, learned Counsel appearing on behalf of the respondent-State supported the impugned judgment, mainly contending that the Trial Court has not committed any illegality in convicting and sentencing the appellant, hence it does not call for any interference. ( 7. ) THE main point for consideration in this appeal is that whether the trial Court has committed an illegality in convicting and sentencing the appellant for offence under Sections 294,323 and 452 of IPC. ( 8. ) KARORILAL (P. W. 1) is the complainant and injured person. Smt. Savitri Bai (P. W. 3) is his wife and Ku. Roshni Bai (P. W. 2) is his daughter. All these witnesses have deposed that on 28-2-1998 at about 6. ( 8. ) KARORILAL (P. W. 1) is the complainant and injured person. Smt. Savitri Bai (P. W. 3) is his wife and Ku. Roshni Bai (P. W. 2) is his daughter. All these witnesses have deposed that on 28-2-1998 at about 6. 00 p. m. this appellant came to their house, abused filthy language and also caused marpeet to Karorilal by Bamboo stick, on account of which he sustained injuries. He submitted a written report (Exh. P-1) at Police Station Niwas, from where he was sent for medical examination. These witnesses have been subjected to lengthy cross-examination, wherein an attempt has been made to bring contradictions and omissions from their police statements. Karorilal (P. W. 1) has tried to conceal the genesis of crime, but it is reflected from evidence that he had encroached upon the land belonging to Radhakrishna Temple and constructed his house thereon. Malti Bai, mother-in-law was worshiper in that temple. The appellant made complaint to the Revenue Authorities regarding encroachment and construction of house by this complainant. Notice was issued to him and the matter was pending in the Court of SDO, Niwas. That was the real cause behind the incident. But it did not give him the right to take law in his hand and commit the offence. All these witnesses have deposed against the appellant that he entered in their house, used filthy language and caused marpeet. Report was lodged at concerned police station. On the basis of which FIR was registered at police Station Niwas by B. D. Jaiswara (P. W. 6 ). Complainant was medically examined by Dr. Archana Sharan (P. W. 4), who found the following injuries on his person:- " (1) Small abrasion 1. 0 x 1. 0 cm in size on left knee joint medial side. (2) Lacerated wound 0. 5 cm x 0. 5 cm x 0. 2 cm in size on left thumb. " According to her opinion, these injuries were caused by hard and blunt object, which were simple in nature. Medical report is Exh. P-2a. ( 9. ) THUS the ocular evidence given by these witnesses finds support from medical evidence. There is ample evidence that this appellant inflicted lathi blow to Karorilal (P. W. 1) on account of which he sustained injuries. Therefore, the conviction under Section 323 of IPC is well maintained and does not call for any interference. ( 10. P-2a. ( 9. ) THUS the ocular evidence given by these witnesses finds support from medical evidence. There is ample evidence that this appellant inflicted lathi blow to Karorilal (P. W. 1) on account of which he sustained injuries. Therefore, the conviction under Section 323 of IPC is well maintained and does not call for any interference. ( 10. ) NOW the question is whether the offence under Section 452 of IPC is proved or not. Section 452 of IPC runs as follows:- "452. Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. " ( 11. ) THUS, it is manifestly clear that for sustaining conviction on a charge under Section 452 of IPC, there must be clear evidence of preparation for causing hurt. The fact that a person enters another mans house and commits an assault does not necessarily presuppose such preparation. It is necessary to prove that the dominant intention of accused was to cause hurt while committing house-trespass and the same was committed after making preparation for causing hurt. ( 12. ) IN this case, Karorilal (P. W. 1) himself has stated that appellant took out bamboo stick from the Badi of the complainant and caused marpeet this is indicative of the fact that he did not come after having made preparation to cause hurt, hence offence under Section 452 of IPC is not made out in such circumstances. His case will fall under Section 448 of IPC of committing house trespass. Hence his conviction requires to be altered from Section 452 to Section 448 of IPC. ( 13. ) AGAIN the question is whether the offence under Section 294 of IPC is made out or not. Section 294 of IPC runs as follows:- "294. Whoever, to the annoyance of others,- (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene songs, ballad or words, in or near any shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. " ( 14. Whoever, to the annoyance of others,- (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene songs, ballad or words, in or near any shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. " ( 14. ) THUS, it is manifestly clear that to invoke Section 294 the accused must to do some obscene act in any public place, or the accused sings, recites or utters any obscene songs, ballad or words, or in or near any public place causing annoyance of others. The test of obscenity is the substantial tendency to deprave and corrupt by arousing lustful desires. In order to be obscene, the matter must tend to stir sexually impure thoughts. (See 1967 Ker LT 799 ). Another ingredient of Section 294, IPC is that the act was done in or near any public place. Where the accused went to the complainants house and abused him, this does not amount to an offence under Section 294. [see State Vs. Gangaram, 1960nag LJ (Notes) 111]. ( 15. ) SINCE the appellant has used filthy language at the house of complainant, therefore offence under Section 294 of IPC is not made out. Hence, conviction under Section 294 of IPC cannot be sustained in the eyes of law. ( 16. ) THE sum and substance is that prosecution has failed to prove charge under Sections 452 and 294 of IPC, hence his conviction in these sections cannot be sustained. He deserves to be acquitted from the charge of these offences. His conviction under Section 323 of IPC is well maintained, hence the same is hereby affirmed. He is also found guilty under Section 448 of IPC instead of Section 452 of IPC. Thus, the appeal deserves to be partly allowed. ( 17. ) CONSEQUENTLY, appeal partly succeeds and is allowed. His conviction under Sections 294 and 452 of IPC is hereby set aside. He is acquitted from the charges of these sections. However, his conviction under Section 323 of IPC is maintained. He is also found guilty under Section 448 of IPC instead of section 452 of IPC. So far as sentence is concerned, the interest would be sub-served if he is punished by sentence of fine only. He is acquitted from the charges of these sections. However, his conviction under Section 323 of IPC is maintained. He is also found guilty under Section 448 of IPC instead of section 452 of IPC. So far as sentence is concerned, the interest would be sub-served if he is punished by sentence of fine only. Thus, jail sentence awarded to him under Section 323 of IPC is hereby set aside. Instead fine of Rs. 1000/- is imposed, failing which he shall suffer SI for three months. Fine of Rs. 1000/- is also imposed under Section 448 of IPC, failing which he shall suffer SI for three months. The fine amount be deposited in two months in the Trial Court. Out of the fine amount so deposited, Rs. 1000/- be paid to complainant Karorilal Jharia s/o Shri Shobharam Jharia resident of Niwas District Mandla by way of compensation under Section 357 (1) of Cr. PC. Appellant is on bail, his bail bonds are discharged.