Gauhati High Court
Swapna Barman vs Subir Das on 24 July, 2003
Equivalent citations: (2004)1GLR168
Author: S.K. Kar
Bench: S.K. Kar
JUDGMENT S.K. Kar, J.
1. This petition presented by Smti. Swapna Berman, informant/ petitioner against Subir Das, accused/respondent has assailed judgment and order dated 19.4.1997 passed by Sessions Judge, Bongaigaon, in Criminal Appeal No. 16(3)/96 acquitting the accused/respondent reversing the judgment of conviction under Section 509 of IPC and sentence passed by CJM, Bongaigaon, on 16.8.1996 in Case No. G.R. 1143/86. The respondent was sentenced to fine of Rs. 1000 and default of payment of fine to suffer S.I. for one month.
2. Facts of the case, in brief, are as follows :
It is alleged that at about 11.30 p.m. (during night hours) the respondent/accused Subir Das started calling petitioner's names. That from few days back conjuncting her name with his name around midnight respondent/accused used to cry aloud and on that night also he entered upon verandah of house of the petitioner/informant (hereinafter to be referred as petitioner only) and called out her names but on appearance of the neighbouring people he left the place.
3. The written FIR being lodged (as per official endorsement) at about 1 a.m. (early hours) on 25.9.1986, the Bijni Police Station, which is situated only about 1 Km north west, registered case No. 176/86 under Sections 448/509 IPC and started preliminary investigation through A.S.I. Shri Numal Ch. Das and in due course Charge-sheet No. 120 dated 30.9.1986 was submitted against the respondent for standing his trial under Sections 448/509 of IPC.
4. Trial began against the respondent on his appearance before the court after explaining the particulars of offence under Section 448/509 when the respondent pleaded not guilty to the charges.
5. Prosecution examined five witnesses to prove the charges. Defence examined none.
6. Defence plea is that respondent has political allegiance with Congress party. The husband of the informant Dhiresh Barman on the other hand was member of another political party. Dhiresh Barman gave a 'bandh' call on the death of Kalipana Sen and in the evening of the 'bandh' day there was a confrontation between respondent on a one side and the informant and her husband on the other side resulting in assault upon the respondent. Respondent filed a case against the petitioner and in order to take vengeance/revenge the present case was instituted falsely.
7. There was no admission of any fact in so far the accusation made. Point for determination as recorded by learned court below were as follows:
"(1) Whether, the accd. Subir Das on 24.9.86 at about 11.30 p.m. at Bhetagaon No. 2 committed house trespass by entering into the dwelling house of informant Smti. Swapna Barman with intent to insult her modesty, as alleged.
(2) Whether, the accd. Subir Das on the same date, time and place, intending to insult the modesty of informant Smti. Swapna Barman, uttered the indecent words or made sounds as"
"Swapna Tumi Sukhe Thako, you will not be happy with your husband Dhirej Barman," "I am your husband" etc. etc. intending that such words or sounds be heard by said Swapna Barman and thereby he committed an offence punishable under Section 509 IPC, as alleged."
Learned trial court found no elements of house-trespass to substantiate charge under Section 448 IPC and held that the second charge under Section 509 IPC has been established on facts and passed the order and judgment aforesaid.
8. On appeal learned Single Judge did not agree with the trial court and reversed the findings on the ground that firstly, there is no uniform evidence regarding actual word (s) used by the respondent / accused and secondly, the presence of the respondent in the house of the informant was not proved in order to suggest inference that the respondent uttered words intended to insult or outrage modesty. I find offence under Section 509 has the following ingredients :
"1. Intention to insult the modesty of a women. 2. The insult must be caused :
(i) by uttering any words, or making any sound or gesture, or exhibiting any object intending that such words or sound shall be heard or that the gesture or object shall be seen by such women, or
(ii) by intruding upon the privacy of such woman."
Therefore, the minimum thing what is required is that there should be an act of intruding upon the privacy of such woman with the intention to insult her modesty. Learned Single Judge, has not disbelieved the petitioner/informant but was of the opinion that there should be precise abusive or insulting words in order to bring out the offence under Section 509 of IPC and was of the opinion that in order to establish the offence the insult should be directed touching the femininity of the woman. The statement given by the petitioner as P.W.-1 during trial verbating et litteratim, when translated into English, goes as follows :
"Before lodging this FIR, with effect from about a period of last 7 to 8 months the accused (respondent) conjecting/coupling his name with mine used to call me and inflicted upon abusive languages while so calling me. On 24.9.1986 at about 11.30 p.m. during night hours accused entered upon my Varandah and knocked at my door calling my names and was uttering - your life with Dhiresh Barman will not be happy Family-life-' "I am your husband."
She further stated towards close of her examination-in-chief that out of shame she did not file case earlier but as the torture increased she had to file the present case. If a prudent man goes through these statements he will definitely come to a conclusion that there was evil intention on the part person using the language depending on the manner in which it was spoken, the odd hours and place where it was spoken. During her cross-examination nothing could be extracted from her to point out to infirmity in her statements. Her statements are in substance supportive of the FIR lodged. It is neither practicable nor expected, under such circumstances, to remember the exact wordings used. Insult has a subjective feeling and depends much on the background to interpret. It will be significant to note that the husband of the petitioner, deposing as P.W.-2, has fully corroborated P.W.-1 on materials and facts when he stated that the respondent entered upon the varandah of his house and called out his wife using abusive language and on hearing the sound they came out of the house and found the respondent had already moved out of their compound. That people collected hearing the alarm and cries and on that night itself the FIR was lodged before the police station. The further statement of P.W.-2 is that in connection with this event respondent/accused also lodged an FIR in the Police Station against them which was registered as Bijni P.S. Case No. 167/86 and police submitted Final Report No. 93 dated 4.11.1996, Against the Final Report a complaint case was instituted by the respondent registered as Case No. CR-97/87, in which case also P.W.-2 and his wife were discharged. Unfortunately learned Single Judge failed to take notice of this piece evidence on record and acted mostly on surmises. Necessary corroboration of the evidence of P.W.-1 is there also from P.W.-3 is a close neighbour from the contiguous house and stated that on the night of occurrence there was 'Hullah' (hue and cry) and abusive languages uttered against the wife of Dhiresh Barman but she could not identify who used this language. P.W.-4 stated that hearing 'Hullah' on the day of occurrence during the time of occurrence he came out of his house and found the respondent coming out of the compound of P.W.-1 and before he came out of his house he heard Subir Das crying out "Swapna, Swapna" and the neighbours assembled at that time. P.W.-5 also corroborated the statement of other witnesses that there was abusive language being used against Swapna by the respondent, notwithstanding the fact that according to him respondent uttered 'Swapna be happy, Swapna be happy etc.', therefore, there were enough evidence to prove the charge upon the respondent but learned Single Judge took a technical view on the entire incident and overlooked the volume of evidence adduce from the prosecution which remain unrebutted. There is no evidence from defence save and except forwarding a defence plea but without making any attempt to substantiate it. Description of offence under Section 509 never contemplates using a definitive words or language but speaks of making sounds and gesture, exhibiting objects etc. also, or even intrusion of the offender into the privacy of woman would amount to insulting the modesty of the woman. Coupling the name of the persons with the name of the woman is sufficient insult to modesty of the woman. The name of the woman generally can be coupled with a person who is either her lover or husband. It was held in Sohanlal Nayak; 1973 cut LTR 1037 :
"Where the court on consideration of evidence on record and the overall facts and circumstances of the case disclosed therefrom comes to the conclusion that the accused had the necessary intention to insult the modesty of a woman and for that had said something or uttered some words, the accused would be held guilty under Section 509, no matter the exact words uttered by the accused were not placed on record."
It may be observed on a careful reading of the language used in defining the offence under Section 509 that the word 'modesty' does not lead only to the contemplation of sexual relationship of an indecent character. The section includes indecency, but does not exclude all other acts falling short of downright indenency. In the instant case, the respondent, from the act of entering house-compound at mid-night and uttering petitioner's name in presence of her husband and coupling her name with his own name intended sufficient insult to disturb her modesty.
9. I find that learned Single Judge has not only misconceived the definition of the offence but committed a great error in not making proper appreciation of the evidence before reversing the otherwise logical findings of the trial court. A plain reading of the judgment of the trial court will show that it had arrived at a logical conclusion after threadbare discussions of the evidence on record.
10. In the result, petition is allowed, the judgment and order passed by learned Single Judge is hereby set aside and judgment and order passed by trial court is restored. The sentence will be executed promptly in accordance with law. Send back the L.C.Rs forthwith.