Bangalore District Court
Thenmooli vs Mala on 27 August, 2024
KABC030743762012
Presented on : 27-12-2012
Registered on : 27-12-2012
Decided on : 27-08-2024
Duration : 11 years, 8 months, 0 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 27th Day of August, 2024
C. C. No.25743/2012
State by J.C. Nagara Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Mrs. Mala
Aged major
W/o Sri Ganapati
2. Smt. Suma
Aged major
w/o Sri Kumaran,
KABC030743762012 CC No.25743/2012
3. Sri Ganapati
Aged major
S/o Sri. A. Chandran,
All are R/at No.4/1, 2nd Cross,
Annayappa Block, Benson Town,
J.C.Ngara, Bengaluru. ... Accused
(Represented by Smt. Shwetha Ravishankar, Advocate)
1. Date of commission of 03-12-2012
offence
2. Name of Complainant Smt. Thenmoli
3. Offences complained of Under Section 341, 504,
509, 506 read with 34 of
IPC
4. Charge Pleaded not guilty
5. Final Order Accused No.1 to 3 are
not found guilty
6. Date of order 27-08-2024
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KABC030743762012 CC No.25743/2012
JUDGMENT
The Police Sub-Inspector of J.C.Nagara Police Station submitted charge sheet against accused No.1 to 3 for the offences punishable under Section 341, 504, 506, 509 read with 34 of Indian Penal Code.
2. Prosecution Case: On 03-12-2012 at about 7.30 a.m. in front of house No.4/1, situated at Benson Town post, 2nd Cross, Annayappa Block within the limits of J.C.Nagara Police Station, the accused No.1 to 3 with common intention picked up quarrel with CW1 namely Smt. Thenmoli and CW2 namely Smt. Tamilselvi, wrongfully restrained them from entering their house, abused CW2 in filthiest language and threatened them with dire consequences of life with an intention to outrage her modesty.
3. First Information Report: Upon the receipt of first information from CW1/PW1, CW10/PW5/PSI of J.C. Nagara Police Station Sri Amul Kale registered a Crime No.164/2012 against the accused for the offences punishable under Section 341, 504, 506, 509 R/W 34 of IPC, prepared FIR and sent the same to the Court and to his superior officers and handed over the case papers to CW11.
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4. Investigation: During the course of investigation, on the receipt of case papers from PW5, CW11/PW3 conducted the spot mahazar as per Ex.P2, recorded the statements and submitted the charge sheet against the accused for the alleged offences.
5. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused.
6. The accused No.1 to 3 was enlarged on bail by the order dated 28/03/2013.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused No.1 to 3.
8. Charge: After hearing learned Sr.APP and counsel for accused, charge for the offences punishable U/Sec.341, 504, 506, 509 R/W 34 of Indian Penal Code has been framed, read over and explained to the accused No.1 to 3 in the language known to them, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 11 witnesses, examined 5 witnesses and exhibited 3 documents 4 KABC030743762012 CC No.25743/2012 and closed their side. The examination of CW3 to CW5 were given up by the order dated 5-7-2023 despite due execution of proclamation. Witness summons to CW7 returned with shara as dead and hence given up from examination as per order dated 15-9-2023. Prosecution failed to secure the presence of CW8 and CW9 and hence given up by the order dated 15-9-2023.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.1 to 3 were examined as per section 313 statement of Cr.P.C, wherein they denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
12. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that on 03-12-2012 at about 7.30 a.m. in front of house No. 4/1 situated at Benson Town Post, 2nd Cross, 5 KABC030743762012 CC No.25743/2012 Annayappa Block, J.C.Nagara, the accused No.1 to 3 with common intention picked up quarrel with CW1 and CW2 and wrongfully restrained them, thereby resulted in commission of an offence punishable under Section 341 R/w 34 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that on above said date, place and time in furtherance of common intention accused No.1 to 3 abused CW1 and CW2 in filthy language knowingly such insult will provoke breach of peace thereby resulted in commission of an offence punishable under Section 504 R/w 34 of IPC?
3. Whether the prosecution has proved beyond all reasonable doubt that on above said date, place and time in furtherance of common intention the accused No.1 to 3 threatened CW1 and 2 with criminal intimidation thereby resulted in commission of an offence 6 KABC030743762012 CC No.25743/2012 punishable under Section 506 R/w 34 of IPC?
4. Whether the prosecution has proved beyond all reasonable doubt that the on above said date, place and time in furtherance of common intention to outrage the modesty of women, accused No.1 to 3 abused CW1 and 2 with vulgar words, thereby resulted in commission of an offence punishable under Section 509 R/w 34 of IPC?
5. What order?
13. The court's findings on the above points are as under:
Point No.1-4 : In the Negative
Point No.5 : As per final order
REASONS
14. Point No.1 to 4: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution 7 KABC030743762012 CC No.25743/2012 case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution has examined the following witnesses, which are as follows i. CW1 Smt. Theanmoli being informant herself examined as PW1 and deposed incident and about the lodging of complaint which was marked as Ex.P1. On 5-12-2012 the police personnel conducted the spot mahazar as per Ex.P2 and identified her signatures on them as per Ex.P1(a) and P2(a).
ii. CW2/PW2, Smt Tamil Selvi deposed that, on 03-12-2012 at 7.30 am, accused No.1 to 3 picked up quarrel with her, abused her and tried to assault, at that time the neighbors pacified the quarrel. She further deposed, thereafter PW1 lodged complaint against accused and she gave her statement in this regard.
iii. CW11/PW3 Smt. Thayeshwari, the then ASI of J.C.Nagara deposed that on receipt of case papers from CW10, she conducted the spot mahazar on 5- 12-2012 at 3.00 p.m. to 4.00 pm as per Ex.P2 and recorded the statement of witnesses and submitted charge sheet against accused persons.
8KABC030743762012 CC No.25743/2012 iv. CW6/PW4 Sri M.K.Hemanth Kumar, pancha witness deposed that the police conducted spot mahazar as per Ex.P2 and took his signature on spot mahazar as per Ex.P2(c).
v. CW10 Sri Amool Kale, the then PSI of J.C.Nagara Police Station examined as PW5 deposed that on receipt of complaint, he registered the case FIR as per Ex.P3 and handed over the case papers to CW11 for further investigation.
15. It is the case of the prosecution that the accused No.1 was watering her house on 03/12/2012 at that time the entire water flashed on the house of the CW1 and CW2 wherein at the time alleged incident of quarrelsome was taken place on 03/12/2012. In this regard, PW2 and PW5 was cross examined the counsel for accused persons wherein she deposed that ಈ ಸಾಕ್ಷಿಗೆ ಒಂದು ಭಾವಚಿತ್ರವನ್ನು ತೋರಿಸುತ್ತಿದ್ದೆ ಅದರಲ್ಲಿ ಸಾಕ್ಷಿ ತಮ್ಮ ಮನೆಯನ್ನು ಗುರುತಿಸಿದ ಮೇರೆಗೆ ನಿಡಿ ೧ ಎಂದು ಗುರುತುಸಲಯುತು. ನಮ್ಮ ಮನೆ ಇಳಿಜಾರಿನಲ್ಲಿ ಇಲ್ಲ. ಮಳೆ ಬಂದರೆ ನೀರು ನಮ್ಮ ಮನೆ ಕಡೆ ಹರಿದು ಬರುತ್ತದೆ. ಬೇರೆ ರೀತಿಯ ನೀರು ಚೆಲ್ಲಿದರೆ ಬರುವುದಿಲ್ಲ 9 KABC030743762012 CC No.25743/2012 and PW5 deposed that:
ಚಾಸಾ.1 ರವರು ವಕೀಲರು ಎಂದರೆ ಸರಿ. ನಿಪಿ.1 ದೂರನ್ನು ಚಾಸಾ.1 ರವರು ಅವರ ತಂಗಿಯ ಪರವಾಗಿ ಕೊಟ್ಟಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. ದೂರಿನಲ್ಲಿ ಹೇಳಿರುವಂತೆ ದಿಃ 4-12-2012 ರಂದು ಘಟನೆ ನಡೆದಿಲ್ಲ ಎಂದರೆ ಸರಿ.
Such being case, the question of spilling the water on the house of the PW1 and PW2 does not arise and hence the alleged incident could have taken place does not hold any water.
16. No independent witness secured by the prosecution case to depose about the alleged incident.
17. It is the case of prosecution after the alleged incident, the PW1 and PW2 was restrained from entering into their house. In this regard, it is relevant to mention that chief in examination of PW1 and PW2 as follows;
then the neighbors intervened and when they were holding accused No. 3, I and my sister to avoid further fight when we were entering into house accused No. 1 and 2 restrained us and threatened us with dire 10 KABC030743762012 CC No.25743/2012 consequences telling that they will kill us.
and ಅಕ್ಕ ಪಕ್ಕದ ಮನೆಯವರು ಅವರನ್ನು ಹಿಡುದುಕೊಂಡರು ಹಾಗೂ ಜಗಳವನ್ನು ಬಿಡಿಸಿ ನಮ್ಮ ಮನೆಗೆ ಕಳಿಸಿದರು.
Thus, their oral testimony of PW1 and PW2 is very clear that they were sent inside the house and hence such being the case, the question of wrongful restraint does not arise.
18. The accused No.1 to 3 with common intention involved in the incident dated 03/12/2012 thereby Acts done by several persons in furtherance of common intention under Indian Penal Code in SECTION 34 WHICH READS AS FOLLOWS-
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
19. The next accusation is for abusing the PW1 and PW2 in filthiest language i.e., INTENTIONAL INSULT WITH INTENT TO PROVOKE BREACH OF THE PEACE under the Indian Penal Code in SECTION 504 WHICH READS AS FOLLOWS-
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KABC030743762012 CC No.25743/2012
Whoever intentionally
insults, and thereby gives
provocation to any person,
intending or knowing it to be
likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Thus, the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence and said principle is appreciated in the case of FIONA SHRIKHANDE v. STATE OF MAHARASTRA AND ANOTHER reported in (2013) 14 SCC 44. The intentional insult must be of such an extent that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied.
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20. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the PW1 and PW2 is not sufficient by itself to warrant a conviction under Section 504 IPC.
21. It is not the law that the actual words or language should figure in the complaint. One has to read the complaint as a whole and, by doing so, in order to a conclusion that there has been an intentional insult so as to provoke any person to break the public peace or to commit any other offence, that is sufficient to bring the complaint within the ambit of Section 504 IPC. It is not the law that a PW1 and PW2 should verbatim reproduce each word or words capable of provoking the other person to commit any other offence. The background facts, circumstances, the occasion, the manner in which they are used, the person or persons to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind whilst examining a complaint lodged for initiating proceedings under Section 504 IPC but on perusal of evidence, the PW1 and PW2 has not deposed about the ingredients of Section 504 of the IPC except uttering the filthiest language however such utterance of the filthiest language did not provoke the PW1 and PW2 to led them to do some acts which resulted in public peace.
13KABC030743762012 CC No.25743/2012 Therefore, in the case on hand, ingredients of Section 504 of the IPC are not made out.
22. On the relevant date, time and place, the petitioners made criminal intimidation to eliminate PW1 and PW2, but on perusal of the material on record, the clear term used by PW1 and PW2 is that accused No.3 has come to beat the PW2 with her hands but no independent witness supported the case of prosecution.
23. It appears from provision of 506 of IPC, it is clear that in order to satisfy the ingredients of criminal intimidation, there has to be a threat of injury to person, reputation or property of PW1 and PW2 by the accused, which should be with an intention to cause alarm to that person or cause that person to do any act which he is not legally bound to do, or to omit to do so as to avoid the execution of such threat. It has been held in the case of MANIK TANEJA AND ANOTHER v. STATE OF KARNATAKA AND ANOTHER reported in (2015) PART 7 SCC 423, the Hon'ble Supreme Court examined the ingredients of Section 503 and 506 of the IPC as under
''11. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation"
as defined in Section 503 IPC is as under:14
KABC030743762012 CC No.25743/2012 "503.Criminal intimidation.-- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section." A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.'' 15 KABC030743762012 CC No.25743/2012 From the foregoing proposition of law, it is clear that in order to constitute offence of criminal intimidation, there must be threat with intention to cause alarm to the PW1 and PW2 or to do any act which is not legally bound to do. Mere expression of any words without any intention to cause alarm to the PW1 and PW2 or to make him to do, or omit to do any act, is not sufficient to bring the act within the definition of criminal intimidation. Therefore, in the instant case, even ingredients of Section 506 of the IPC are not made out against the accused.
24.The next allegation is that Section 509 of IPC which reads as under
Word, gesture or act intended to insult the modesty of a woman - Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."16
KABC030743762012 CC No.25743/2012 On reading of Section 509, it is clear that in order to bring an act committed by a person within the purview of Section 509, the act must have been committed with the intention to insult the modesty of any woman or to intrude upon the privacy of such woman. Thus, intention is the basic ingredient of the offence under Section 509 of IPC.
25. Coming to the definition of the word 'modesty', the same has not been defined in the Indian Penal Code . So it is necessary to know its meaning. As per Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means 'womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct". The word 'modest' in relation to woman is defined in the above dictionary as 'decorous in manner and conduct; not forward or lewd; shamefast". Webster's Third new International Dictionary of the English Language defines modesty as"freedom from coarseness, indelicacy or indecency' a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1993 Ed) the meaning of the word 'modesty' is given as 'womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.
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26. To sum up, mere utterance of unpleasant or abusive words without an intention either to insult the modesty of the woman or to intrude upon the privacy of such woman would not attract offence under Section 509 of IPC. The act of insult alleged against the accused No. 1 to 3 is that the accused No. 1 to 3 abused the PW1 and PW2 when she questioned accused No. 1 for spilling the water on the house of PW1 and PW2. The main question that requires to be ascertained is whether the accused persons hurled abuses at PW1 and PW2 with an intent to outrage the modesty of PW2. Mere utterance of abuses does not automatically amount to outrage of modesty. It has been held in the case of Abhijeet J K Vs State of Kerala reported in 2020 SCC Online Kerala 703, the Hon'ble High Court of Kerala held that there is a distinction between an act of merely insulting a woman and an act of insulting the modesty of a woman. In order to attract Section 509, merely insulting a woman is not sufficient and insult to modesty of a woman is required to have been done.
27. Section 509 criminalizes a 'word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. It has been held in the case of State of Punjab Vs Major Singh reported in AIR 1967 SC 63, the Hon'ble Supreme 18 KABC030743762012 CC No.25743/2012 Court held that the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty. It has been held in the case of Rupan Deol Bajaj Vs K P S Gill reported in AIR 1996 SC 309 held that if the word uttered or the gesture made could be perceived as one which is capable of shocking the sense of decency of a woman, then it can be found that it is an act of insult to the modesty of the woman and that there must be a definitive allegation of insult to the modesty of woman or intrusion into the privacy of woman.
28. In view of the above discussion, the onus was on the prosecution to prove the offence under Section 509 of the IPC. The CW2/PW2 or PW1 herself has never stated in the complaint as per Ex.P1 or in their testimony that the modesty of PW2 was outraged by the abuses of the accused persons rather it appears from Ex.P1 that defamed her and affected their reputation. The prosecution has not been able to establish that such abuses were hurled by accused No.1 to 3 with an intent to outrage the modesty of PW2 and the same was done with the intention to outrage the modesty of PW1 and PW2. Apart from the allegation of abusive / filthy language, there is nothing on record to indicate that the PW's modesty was outraged which could have established/proved the guilt of the accused No.1 to 3. The burden of 19 KABC030743762012 CC No.25743/2012 proof was on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution has failed to prove that the essential ingredients of Section 509 have been satisfied.
29. It appears from the evidence of PW1 and PW2 that there are difference of opinions amongst the accused persons and the family of PW1 and PW2. No independent witnesses deposed about the incident. PW3 to PW5 are procedural witnesses who were involved with post-complaint stage and did not witness the alleged incidents directly and does not have substantial probative value in proving the allegations against the accused persons. Thus, it is safe to hold that, the prosecution failed to prove the charges against the accused beyond all reasonable doubt thereby this court answer the above point No.1 to 4 in the negative.
30. Point No.5:- For the foregoing discussion and the findings to the above point No.1 to 4, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 to 3 are found not guilty and acquitted from the offences punishable 20 KABC030743762012 CC No.25743/2012 under Sec.341, 504, 506, 509 read with 34 of IPC.
(ii) Accused No.1 to 3 are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 27th day of August, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Smt. Theanmoli
PW2 : Smt. Tamil Selvi
PW3 : Smt. Thayeswari
PW4 : Sri M.K.Hemanth Kumar
PW5 : Sri Amool Kale
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Documents marked on behalf of the prosecution:
Ex.P1 : Complaint Ex.P2 : Spot Mahazar Ex.P3 : F.I.R.
Material Objects marked on behalf of the prosecution:
NIL Witnesses examined for the defence: NIL Documents marked on behalf of the defence: NIL VIII Addl. Chief Judicial Magistrate, Bengaluru City.22
KABC030743762012 CC No.25743/2012 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 to 3 are found not guilty and acquitted from the offences punishable under Sec.341, 504, 506, 509 read with 34 of IPC.
(ii) Accused No.1 to 3 are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) Ordered accordingly.
VIII ACJM, Bengaluru City.
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