Bombay High Court
Sau. Anuradha R. Kshirsagar And Others vs State Of Maharashtra And Others on 12 December, 1989
Equivalent citations: 1991CRILJ410
JUDGMENT
1. Two complainants have come up in appeal against the order of acquittal passed by the Additional Sessions Judge, Akola on 31-1-1986 in Criminal Appeal No. 149 of 1984.
2. The facts giving rise to this prosecution may be briefly stated as follows : Mrs. Anuradha R. Kshirsagar and Mrs. Malti Madhao Pawade (the complainants in Criminal case No. 11 of 1983 and No. 12 of 1983 before the Judicial Magistrate, First Class, Akola) along with other ladies were the teachers working under the Zilla Parishad, Akola. On 30th October, 1982, a meeting of all the teachers, including the lady teachers, was convened at about 11 a.m. by the Assistant Education Officer, Mrs. Kamal Gadekar. While this meeting we going on and while Mrs. Gadekar was addressing the meeting, the accused Madhukar Mahadeorao More was standing outside the door of the hall. It is alleged that a request was made by him, to the chair, for permission to address the meeting, but this request was not accepted. It is alleged that the accused wanted the lady teachers sitting inside the hall to come outside the hall so that the meeting could not continue, but when he found the lady teachers not leaving their seats, he uttered the words :
"jya uthat nasatil tyancha zipotaya dhara, kamret latha mara, tyana baher kadha, jya shishkika uthanar nahit, tya pudhe akolayat kashya kay rahatat te mi pahato."
With these words the accused left the place. The meeting went on smoothly. It is the contention of the complainants that these words disturbed their mental peace and they were frightened because of the utterances of the accused. It was their contention that by using these words the accused intended to insult the modesty of the lady teachers including the complainants. Three complaints including Criminal Case Nos. 11 of 1983 and No. 12 of 1983 were filed. In all these three cases on verification a process was issued under Section 509 of the Indian Penal Code. However, the issuance of the process was challenged in the third case by the accused Madhukar vide Criminal Application No. 555 of 1983 before this Court and this Court by its order passed on 11-6-1984 quashed the process. However, Criminal Case Nos. 11 of 1983 and 12 of 1983 proceeded according to law. As incidents arose out of the same cause i.e. the meeting and as the evidence was the same, these two cases were consolidated for evidence and the evidence recorded in one case was read as evidence in both the cases. The defence of the accused was purely of denial. The learned Magistrate on hearing both the parties relied on the evidence led by the prosecution witnesses. The utterance of the words by the accused has been held as proved. According to the learned Magistrate these words were addressed to the females and these words were definitely intended to insult the modesty of the women. He, therefore, held the accused guilty in both the cases for an offence punishable under Section 509 of the Indian Penal Code and sentenced to suffer simple imprisonment for two months, fine of Rs. 200/- or in default simple imprisonment for one month.
3. The orders of conviction and sentences in both the cases (in Criminal Case No. 11 and 12 of 1983) were challenged by the accused in Criminal Appeal No. 149 of 1984. The learned Additional Sessions Judge, who heard both the parties, came to the conclusion that the words uttered by the accused do not make out an offence punishable under Section 509 of the Indian Penal Code. He, therefore, quashed the order of conviction and sentence passed by the Magistrate, allowed the appeal and acquitted the accused in both the cases. This order of acquittal has been challenged in this appeal.
4. In this appeal there is no challenge to the consolidation of the cases and recording of the common evidence in one case to be read as evidence in both the cases. The Sessions Court's reading common evidence in both the cases has not been criticised on that count. Mr. Sirpurkar, the learned advocate for the appellants, strenuously urged before me that the Additional Sessions Judge was not justified in coming to the conclusion that the words, standing as they are, do not constitute an offence under Section 509 of the Indian Penal Code. I was extensively taken through the evidence adduced by the complainants in all the Courts. There is no dispute regarding the fact that there was a meeting of the teachers held on 30th October, 1982. This meeting was convened under the programme "Deniyasathi Ek Tas". This meeting on 30-10-1982 was convened at about 12.30 at the Zilla Parishad Office. The lady teachers were sitting inside the hall and the meeting was being addressed by the Assistant Education Officer Mrs. Gadekar. It is also not disputed by the accused that the lady teachers including the present two complainants, appellants were attending that meeting. It is also not disputed by him that when the meeting was going on inside the hall, the lady teachers including the present complainants were sitting in the hall, whereas he was standing outside. The accused does not dispute that while the meeting was going on, one Mr. Gosavi reached a chit to Mrs. Gadekar. He, however, disputes that he uttered the alleged words. Thus the factual dispute was restricted to the utterances of the words. The complainant Anuradha was examined as (PW 1) at Exh.-19 and she states that while the accused was standing outside the door of the hall, he invited the teachers sitting inside the hall, to leave the hall, but when they refused and continued to listen Mrs. Gadekar, he lost his temper and uttered the words :
"jya uthat nasatil tyancha zipotaya dhara, kamret latha mara, tyana baher kadha, jya shishkika uthanar nahit tya pudhe kashya kay rahatat te mi pahato." A suggestion has been made in the cross-examination that the accused did not utter these words, but that suggestion has been denied. Maltibai (PW 2) at Exh. 23 corroborates the testimony of Anuradha (PW 1) on this particular count. The only suggestion put to her was that the accused has already served a notice claiming compensation for defamation and hence she is telling a lie. Though she admits the service of notice, she denied that this criminal case has been instituted as a counterblast to the claim for defamation. Kamla Gadekar (PW 3) at Exh. 26 also corroborates the complainants. She was the person who was conducting the meeting then.
5. The trial Court has accepted this evidence and recorded the finding that the accused uttered these words. The appellate court has not disturbed this finding or has not negatived this finding as far as the utterances are concerned. Mr. Madkholkar, the learned advocate for the respondent No. 2, urged before me that there is no concurrent finding of facts by the two Courts below and, therefore, this Court should go into the question of finding of fact. In fact when the Sessions Court has accepted the utterances, it necessarily means that it has accepted the finding of fact. Even otherwise what Mr. Madkholkar urged before me was that the evidence on these points was from the witnesses who are interested and who cannot be called as independent witnesses. He invited my attention to the fact that the complaint was lodged before the Court on 6-1-1983 i.e. long after the incident and hence this circumstance throws a considerable doubt on the credibility of the witnesses. It is true that the complaint has been lodged before the Magistrate after the lapse of about more than 1 1/2 months. However, we have on record the complaint made by Mrs. Gadekar to the Block Development Officer on the same day. Mr. Madkholkar urged that in the application the words uttered by the accused have not been reproduced. Exh. 28 is the complaint of Mrs. Gadekar made to the Block Development Officer on the same date where she has made specific allegation that there were slogans and threats. It also appears vide Exh. 30 that a complaint was made by the lady teachers to the Chief Executive Officer, Zilla Parishad against the present accused and others and this was enquired into by the competent authorities. The complaint was made on 26-11-1982 and the report is dated 8-12-1982. The crux of the complaint was that Mr. More and Mr. Kumbhare had given threats to the lady teachers by using indecent language. We are not much concerned here with the result of the enquiry. These three applications made to the competent authorities show that the complaint before the Court was not by its nature for the first time, but this grievance was being agitated. After all the delay in lodging the prosecution does not necessarily mean that the allegation was false or an afterthought. Everything has to be examined on the background of the circumstances prevailing. In the present case, there is enough evidence to show that they pursued their remedies before the forums, which according to them were competent. Over and above this, there is consistent evidence, unshaken by the cross-examination, that these words were uttered by the accused. The finding of the trial court and of the appellate Court on this point is, therefore, quite correct. It will not be out of place to repeat the utterances of the accused. They find place in the complaint and also in the evidence. The trial Court in its judgment has reproduced the utterances and they are as follows :
"jya uthat nasatil tyanchya zipotaya dhara, kamret latha mara, tyana baher kadha, jya shishkika uthanar nahit tya pudhe akolayat kashya kay rahatat te mi pahato."
Mr. Sirpurkar, the learned advocate for the appellants strenuously urged before me that these utterances make out a case under Section 509 of the Indian Penal Code. Section 509 of the Indian Penal Code reads as follows :
"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 of sound shall be heard, or 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."
According to Mr. Sirpurkar, the main ingredient of this Section is an intention to insult the modesty of a woman.
6. We have now to find out whether these utterances have anything to do with the modesty of the woman. The utterance are (1) catch them by their hair (2) kick them on the waist, (3) pull them out and (4) I will see as to how those lady teachers, who did not leave the hall, stay at Akola. What Mr. Sirpurkar urged before me was that when the accused uttered the words of catching the lady teachers by their hair, it is violative of modesty of a woman and, therefore, these utterances constitute an offence punishable under Section 509 of the Indian Penal Code. It is difficult to accept this proposition. 'Modesty to a woman' is altogether different concept which has a very little to do with the physique of the woman. Modesty of a woman is intimately connected with the feminity including her sex. Bashfulness is another characteristic of this feminity. Any attempt of assault on this aspect may amount to insulting the modesty. Mudholkar J. in State of Punjab v. Major Singh, observed in paragraph 13 :
"In my judgment when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of this section."
Bachawat, J. in paragraph 16 observed :
"I think 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 the modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under S. 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act, nevertheless, the offender is punishable under the section."
6A. Sarkar, J. dissented with the majority decision, but the dissent was on other point with which we are not concerned in the present case. The dissent was on the point whether the woman must necessarily be conscious of the assault on her modesty. As far as the other position is concerned, there is unanimity of opinion. The concept of 'modesty' concerns with feminity including sex. Wherever there is an assault or insult to this feminity or the like qualities accompanying it, the offence under Section 509 of the Indian Penal Code will be made out.
7. From this point of view, the utterances with which we are concerned in the present case, do not violate the concept of feminity. Catching the woman by hair, kicking on her waist, pulling her out or giving threats has nothing to do with the feminity and consequently it has nothing to do with the modesty of the woman. These are the common offences vis-a-vis a female or a male. This is altogether different category. In my opinion, therefore, the learned Additional Sessions Judge was quite right in coming to the conclusion that the offence under Section 509 of the Indian Penal Code is not made out.
8. Mr. Sirpurkar, the learned advocate for the appellants, however, urged before me that though these utterances may not constitute an offence under Section 509 of the Indian Penal Code, it may still constitute an offence punishable under Section 506 of the I.P. Code. He, therefore, wanted the conviction to be imposed on the accused for an offence punishable under Section 506 of I.P. Code. What Mr. Madkholkar urged before me was that these utterances do not constitute an offence punishable under Section 506. There was no argument that the conviction under Section 506 could not be recorded for want of a charge. After all it is a summons case and it proceeds from the explanation of the accusations. In the present case, the accusations are verbally explained to the accused in the words they were made. There is so vagueness in the accusations which were read to the accused. Section 221(2), Criminal Procedure Code permits the conviction without framing a separate charge where the substance of the accusations is in clear terms explained to the accused. Given a particular substance of accusation, whether it constitutes an offence under one section of under another section of the Indian Penal Code is only a matter of inference and consequence need not be stated in the charge. This Court in Emperor v. Kasamali Mirazalli AIR 1942 Bombay 71 : (1942-43 Cri LJ 529) (FB) held that where the prosecution is in doubt whether they could prove that the girl was under sixteen, an alternative charge of kidnapping or abduction is proper. While examining Section 236 of the Code of Criminal Procedure, this Court held that for applying Section 236 of the Code of Criminal Procedure, there must be a single act or series of acts of a certain nature and that nature must raise a doubt about which of several offences the facts, which can be proved, will constitute. It will, therefore, be permissible for this Court even in the absence of a specific charge to consider whether the words constitute an offence under Section 506 of the Indian Penal Code. Mr. Madkholkar took me extensively through the definition of 'criminal intimidation' in Section 503 of the Indian Penal Code. It requires a threat with injury to the person, reputation or property, or to the person or reputation of any one in whom that person is interested and this threat must be with intent to cause alarm to that person. These are the main ingredients. Others are alternative with which we are not concerned in the present case. The prosecution case is that the accused uttered these words in relation to the women sitting inside the hall and these words threatnened them (including the appellants). These words were uttered with an intent to cause alarm to these ladies. Mr. Madkholkar urged before me that the accused never uttered these words to any specific Person including the complainants and these words were general. His another part of the argument was that unless there is threatening to a particular individual, there could be no offence under Section 506 of the Indian Penal Code. I find myself unable to accept this argument. The position prevailing then cannot be lost sight of. The lady teachers including the complainants were sitting inside the hall where Mrs. Gadekar was addressing the meeting. The accused was standing outside the hall. Due to some reason, he did not want the meeting to continue and he wanted the ladies sitting in the hall to vacate and come out. When the persuasions could not succeed, he uttered the words. These words were definitely addressed to all the ladies sitting inside the hall. The words contained threats because those ladies who did not leave the hall were to be dealt with by catching their hair and by pulling them out. They were also to be dealt with a threat of kicking on the waist. Further he expressed in specific terms that he would see how these ladies live at Akola.
9. Reading this evidence on the background that has already been stated, I do not think that the words do not contain any threat. I do not think that the words were not addressed to the complainants who are coming before this Court. In fact, threat was hurled at all the ladies sitting inside the hall and the complainants before me are the two lady teachers who were amongst them. The threat was thus equally hurled against them.
10. Mr. Madkholkar urged before me that nowhere in the complaint they have alleged that the offence of criminal intimidation was committed by the accused. I have gone through the complaint and there is an allegation that they were threatened (though not more). There is also evidence which unequivocally shows that apart from hurting their modesty, these ladies were also frightened because of the threats contained in these utterances. From this point of view, we have now to proceed whether the utterances, as they stand, constitute an offence under Section 506 of the Indian Penal Code. Mr. Madkholkar invited my attention to Hajee Abdul Rahman v. Gulam Nabi, AIR 1964 J&K 4 : (1964 (1) Cri LJ 40). This was a case under Section 506 of Ranbir Penal Code (which was prevailing in the State of Jammu and Kashmir). The High Court observed (para 9) :
"Before an offence under this section is made out it must be established that the accused had an intention to cause an alarm to the complainant. The evidence of PWs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 clearly establishes that when the complainant wanted the accused to open the door and asserted his right to do so, it was then only that the threats were used. Thus the threats were given to the complainant not with an intention to alarm him but with a view to deterring him from interfering with what the accused believed to be his exclusive right of passage through the door in question. Thus the intention of the accused not being to alarm the complainant, the essential ingredient of an offence under Section 506 R.P.C. is wholly wasting."
11. This observation was made in the peculiar circumstances of the case when the accused wanted to exercise his own right of way and when he was obstructed. It was in those circumstances that the observations came to be made. However, in the present case, no such question has been involved. The accused was harbouring an intention of disturbing the meeting, calling all the ladies out and it was for carrying out that intention that these threats were hurled. Thus the ratio laid down in this case cannot in any way help the respondent.
12. The ratio in State of Maharashtra v. Prakash Mane, 1980 Cri LR (Mah) 146 does not, in fact, help the respondent. Mr. Madkholkar urged before me that he is relying upon this authority only to point out that unless there is a resultant effect of the intimidation, the offence is not made out. In Periamalaisami v. Poosariambalam, 1969 Mad LW (Cri) 202 some threats were hurled by the accused towards the complainant because the complainant had obstructed his right to take water. The Madras High Court observed that in such a quarrel, such things would, as a matter of course, occur without anyone intending to intimidate seriously the other. According to the Madras High Court this intimidation cannot be said to be a deliberate one and an offence under Section 506, Part II, IPC cannot be made out. In Jogendra Kumar v. Hem Chandra, 1964 (1) Cri LJ 255 (Tripura J.C.), the accused hurled a threat to kill the complainant and bury him. The accused was an old and sick man aged about 74 years. None of the persons present there were alarmed. In these circumstances, the Judicial Commissioner observed that Criminal intimidation contemplates a threat with an intention to cause alarm to the person. In the present case the Court found that here threats without anythingelse could not constitute any intention and, therefore, it was held that there was no offence. Similarly the ratio in State of M.P. v. Gangaram (1984) 1 Crimes 405 (Madh Pra) cannot be applicable. It was a prosecution for the offence punishable under sections 147, 181, 332, 333 and 506-B of the Indian Penal Code. Charge was framed only under Section 332 of the Indian Penal Code and the trial went on that charge. Ultimately on the admission of the complainant himself, the charge was held as not proved and the accused was acquitted. In appeal against the acquittal it was urged that though the charge under Section 332 of the Indian Penal Code may not prevail, there are offences under other sections for which the accused could be convicted. The High Court held that when no charge under other section of the Indian Penal Code was framed, there could be no question of conviction for those offences. What appears from the Report is that the charges under sections 147, 181 and 506 were not at all framed. Now it is well known that these offences have particular requirements before the conviction could be imposed. When the charges were not at all framed the prosecution could not legitimately ask the Court to convict the accused for these charges.
13. Thus what is established on record is that the accused uttered the words. These words were addressed to the ladies who were sitting inside the hall. The complainants who have come before this Court in appeal were amongst those ladies. The intention in making these utterances was that the ladies should vacate the hall so that the meeting could not go on. For pursuing that object these utterances were made and these utterances were potential enough to threaten the party to whom the utterances were addressed. The threats were manifold. Ultimate threat was to make their living difficult at Akola if they did not vacate. We have now to consider whether the facts as are established could constitute an offence under Section 506 of the Indian P.C.
14. Reference to Section 506 has already been made and its ingredients are already pointed out. They are (1) threat, and (2) intention to cause alarm are the main ingredients. Mr. Madkholkar also urged that there is a third ingredient, namely, the intention must be 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. What was urged before me by Mr. Madkholkar was that in spite of these so-called threats the meeting continued and it was concluded. What he urged before me is that the threats were empty and they had no effect. This, according to Mr. Madkholkar, is the main ingredient. Reading Section 503, as it stands, does not make out this ingredient. What Section 503 IPC requires is (1) a threat to a person and the threat must be to cause injury to his person, reputation or property, and (2) that there must be an intention to cause alarm to that person. The words, which are already reproduced, no doubt contain a potential of threat. The threat contained in the last part conveys that persons who would not abide by his wishes would be dealt with in a particular way so that their life will be impossible at Akola. Can it not be reasonable in the circumstances that the threat was potential. After all the persons sitting in the hall were not wrestlers challenging the powers of the accused. They were simply lady teachers and the accused was one of the office bearers of the Union. The threat by him to the lady teachers, in the words that are reproduced, is according to me, a threat which falls within the four corners of Section 503 of the Indian Penal Code.
15. Mr. Madkholkar, however, urged before me that this is an appeal against acquittal and the limitations of the Court in such appeals are well-known. He urged before me that the findings of the trial Court, unless they are perverse, should not normally be interfered with. Reliance was also placed on the ratio laid down by the Supreme Court in Lalit Kumar Sharma v. Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, . The Supreme Court observed (para 9) :
"It is now well-settled that the power of an appellate Court to review evidence in appeals against acquittal is as extensive as its powers in appeals against conviction, but that power is with a note of caution that the appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so."
The principle laid down no doubt is salutary. This Court is not going behind any findings recorded by the Court below. What has been complained of before this Court is that though the facts established constitute an offence under the Indian Penal Code, the Sessions Court has not at all considered this aspect of the case. Thus what the appellants want this Court to do is not to reconsider or disturb the finding of facts recorded by the trial Court. They want this Court to draw an appropriate inference which the trial Court has failed to do. Mr. Sirpurkar urged before me that the utterances, as are proved may not constitute an offence punishable under Section 509 of the Indian Penal Code, bus according to him, it does constitute an offence under Section 506, Part I. The factual position, standing as it is, and without violating the well-known principles, it would be the bounden duty of this Court not to let a person go unpunished, particularly when the offence of a particular nature has been made out against him. Though I agree with the learned Additional Sessions Judge that the offence under Section 509, Indian Penal Code is not made out against the accused, still another offence within the four corners of Section 506 of the Indian Penal Code is well made out by the facts which are proved. Mr. Madkholkar did urge even at this stage that neither the complaint nor the verification makes out any case covered by Section 506 I.P.C. I have already pointed out in the earlier paragraphs that the complaint does mention that there was a threat. The evidence does show that because of these utterances the complainants and the ladies were frightened. This in itself is sufficient to constitute the offence, particularly when the whole case is considered on the background. I have already held that even without a specific charge this is permissible. I would, therefore, hold that though the accused is not guilty of that offence punishable under Section 509 of the Indian Penal Code, he is guilty of the offence punishable under Section 506 of the Indian Penal Code and he deserve to be convicted for an offence punishable under Section 506, Part I of the Indian Penal Code.
16. Before proceeding for consideration of the sentence, I asked Mr. Madkholkar whether he had to say anything. Mr. Madkholkar urged before me that his client is a teacher in the Zilla Parishad and he is at the verge of retirement within the next 3 or 4 years. He urged before me that this is his first offence and his client has not been convicted for any offence so far by any Court. It was also urged that it was only at the spur of the moment that this incident has occured. What he urged was that instead of imposing a substantive sentence, his client should be better dealt with under the provisions of Probation of Offenders Act and particularly under Section 3 of the said Act. Section 3 of the said Act permits the Court to make available the benefit of this section to a person who is convicted of the offence and the punishment wherefor dose not exceed two years. Considered on the background of the circumstances, namely, the status of the accused, and the status of the complainants, I think that the admonition would be a proper order in lieu of the sentence. However, the accused shall have to pay compensation of Rs. 100/- each to the appellants.
17. In the result the appeal is partly allowed. The order of acquittal is set aside and the respondent is convicted for an offence punishable under Section 506, Part I of the Indian Penal Code. In lieu of the sentence, I direct that the respondent shall be released on due admonition under Section 3 of the Probation of Offenders Act. The respondent-accused shall, however, pay Rs. 100/- to each of the appellants by way of compensation within a month from today.
18. Appeal partly allowed.