Madras High Court
Thavalingam vs State By Inspector Of Police on 7 November, 2019
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.RC.No.67 of 2016
1. Thavalingam
2. Maheswari Petitioners/A1 and A2
Vs
State by Inspector of Police
Avalurpettai Police Station Respondent
Prayer:- This Criminal Revision Petition is filed, against the judgement of
conviction and sentence, dated 21.12.2015, made in CA.No.30 of 2015, by the
II Additional District Sessions Judge, Tindivanam, modifying the judgement of
conviction and sentence, dated 22.6.2013, made in CC.No.156 of 2013, by the
Judicial Magistrate, Gingee.
For Petitioners : Mr.D.Veerasekaran
For Respondent : Mr.M.Mohamed Riyaz, APP
ORDER
1. This Criminal Revision Petition is filed, against the judgement of conviction and sentence, dated 21.12.2015, made in CA.No.30 of 2015, by the II Additional District Sessions Judge, Tindivanam, modifying the judgement of conviction and sentence, dated 22.6.2013, made in CC.No.156 of 2013, by the Judicial Magistrate, Gingee.
2. The brief facts of the case of the Prosecution are that on 27.5.2013, at around 9.00 a.m., while PW.1 Meena, was taking bath in a thatched http://www.judis.nic.in 2 bathroom, near her house, the Petitioner/A1 had taken a photograph of her through a cell phone through a hole from inside a nearby house under construction, belonging to one Minnal Elumalai and that when PW.1 had seen him, he had run away from the scene of occurrence and when PW.1 had questioned the act of the Petitioner /A1, the Petitioner/A2 had abused her in a filthy language and that the Petitioner/A1 had called her in a filthy language and stated that he had deleted the photograph. It is the further case of the Prosecution that on the complaint, Ex.P1 given on 01.06.2013, a case was registered in Cr.No.248 of 2013 for the offences under Section 294(b) of IPC and Section 4 of the Tamil Nadu Women Harassment Act and that after completion of the investigation, the Respondent had filed the final report, charging the Petitioner/A1 for the offence under Section 294(b) of IPC and Section 4 of the Tamil Nadu Women Harassment Act and the Petitioner/A2 for the offence under Section 294(b) of IPC.
3. The case was taken on file in CC.No.156 of 2013, by the Judicial Magistrate, Gingee and on appearance of the Petitioner/Accused, copies were furnished to them under Section 207 of Cr.PC and the Trial Court, questioning the Petitioner/Accused, had framed charges against the Petitioner/A1 for the offence under Section 294(b) of IPC and Section 4 of The Tamil Nadu Women Harassment Act and against the Petitioner/A2 for the offence under Section 294(b) of IPC. The accused had denied the charges and sought for trial. In order to bring home the charges against the accused, the Prosecution had examined PW.1 to PW.9 and also marked Exs.P1 to PW.8.
4. PW.1/ defacto complainant had deposed that her husband is working as a http://www.judis.nic.in 3 Coolie in Chennai and that he used to come to the Village once in 15 days and that the house of the Petitioners / accused was near to her house and that near to her house, one Minnal Elumalai was constructing a house and it was under construction and that the Petitioner/A1 used to come and sit there frequently. She had further deposed that on 27.5.2013 at 9.00 a.m., she was taking bath in a bathroom covered by saree and after bath, while she was changing her dress, she had seen the Petitioner/A1 taking photograph of her by a cell phone through a hole in the nearby house under construction and that she had called her neighbour and she was not there and she had raised an alarm and she had seen the Petitioner/A1 running away with the cell phone and thereafter, she had informed about the incident to her brother and elders in the Village and gone to the house of the Petitioner/A1 to question about his activities and at that time, the Petitioner/A2 had told her that only at her wish, he had taken the photograph and abused her in a filthy language and that she had told that he had deleted the photograph and she cannot do anything and thereafter, she had given the complaint and the reason for the delay in giving the complaint was that the Petitioner/A1 had quarrelled with her under the influence of alcohol and that when she had asked for cell phone, he had told that she had broken the same and that the complaint was marked as Ex.P1 and the signature in Ex.P1 was marked as Ex.P2.
5. PW.2 is the husband of PW.1 and he had deposed that his wife had told that when on 25.7.2013 at 9.00 a.m. she was taking bath in a bathroom covered by clothes, the accused had taken photograph of her wife by a cell phone and that he had informed the same to the important persons in the Village http://www.judis.nic.in 4 and since no action was taken, he along with wife had given the complaint to the Police Station.
6. PW.3, brother of PW.1 had deposed that he was informed that on 25.7.2013, while his sister was taking bath, the Petitioner/A1 had taken a photograph of her by a cell phone and thereafter, he had gone to the important persons in the Village and when questioned the accused, they abused them in a filthy language and that since the Villagers did not take any action, the complaint was given to the Police Station.
7. PW.4 is a hearsay witness and he had deposed that she had informed about the Petitioner/A1 taking photograph of PW.1 in a cell phone and that he along with PW.1 and PW.3 and the other important persons in the Village had gone to the house of the Petitioner/A1 and told him to abscond for some time saying that if PW.2 comes to know about the incident, he will not live with PW.1 and therefore, on the next day, the Petitioner/A1 along with 10 persons had come to the house of PW.1 and had quarrelled with them and thereafter, he had informed PW.2 and later along with PW.1 to PW.3, had come to the Police Station and given the complaint.
8. PW.5 is the relative of PW.1, who had deposed that his aunt's house is near to the house of PW.1 and that he had gone see his aunt and that his aunt's house was under construction and when he had gone to see the house, he had seen the Petitioner/A1 running out of the house hearing the sound and at that time, he had seen PW.1 taking bath inside the thatched bathroom and he had seen the Petitioner/A1 taking photograph of her in a cell phone. He had further deposed that the place where PW.1 took bath was visible from http://www.judis.nic.in 5 the house under construction and that on his noise, PW.1 had come out of the thatched bathroom after wearing her clothes and that he had informed PW.1 that the Petitioner/A1 had taken photograph of her while she was taking bath and thereafter, he along with others had attempted to catch hold of the Petitioner/A1 and the Petitioner/A1 had run into his house and that when the other persons had demanded the cell phone from the Petitioner/A1, he had informed that he had broken it and when he had questioned the Petitioner/A1, he had told him that he will do whatever he likes and that thereafter since he did not apologise, PW.1 had given the complaint to the Police and that the Petitioner/A2 abused them in a filthy language.
9. PW.6, who is the witness for observation mahazar, had deposed that his signature in the observation mahazar was marked as Ex.P3 and that the observation mahazar was prepared on 02.06.2013 at 8.00 a.m. at the place where the PW.1 was said to have taken bath. PW.7 had corroborated the evidence of PW.6 and he had deposed that the rough sketch was prepared in his presence and that he had signed in the observation mahazar and the rough sketch.
10.PW.8 is the Sub Inspector of Police, who had deposed that on 01.06.2013, while he was on duty, PW.1 had given the complaint, based on which, he had registered a case in Cr.No.248 of 2013 for the offences under Section 294(b) of IPC and Section 4 of the Tamil Nadu Women Harassment Act and the printed First Information Report was marked as Ex.P5 and thereafter, on the next day, he had gone to the scene of occurrence and prepared the observation mahazar and the rough sketch in the presence of PW.6 and http://www.judis.nic.in 6 PW.7 and marked the same as Ex.P6 and Ex.P8 and thereafter, examined the witnesses and recorded their statements and at 10.30 a.m. arrested the accused and remanded them to judicial custody. He had further deposed that after completion of the investigation, he had forwarded the case file to the Sub Inspector of Police, PW.9, who had deposed that on 4.6.2013 when he was on duty, PW.8 had placed the First Information Report and the statement of the witnesses and thereafter, he had taken the file to his file and examined the witnesses and they have deposed about what they have spoken to by them to PW.8 and thereby, he did not record any statement and after completion of the investigation, he had filed the final report.
11.On completion of the evidence on the side of the Prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused had come with the version of total denial and stated that they have been falsely implicated in this case.
12.The Trial Court, after hearing the arguments advanced on either side and also looking into the materials available on record, had found the Petitioner/A1 guilty for the offences under Section 294(b) of IPC and Section 4 of the Tamil Nadu Women Harassment Act and the Petitioner/A2 guilty for the offence under Section 294(b) of IPC and sentenced each of the Petitioners for the offence under Section 294(b) of IPC to pay a fine of Rs.500/- each, in default to undergo two weeks Simple Imprisonment and sentenced the Petitioner/A1 for the offence under Section 4 of the Tamil Nadu Woman Harassment Act to undergo two years Simple Imprisonment http://www.judis.nic.in 7 and ordered the sentences to run concurrently.
13.In the appeal, the lower appellate court, while confirming the conviction of the Petitioners/Accused as imposed by the Trial Court, had modified the sentence of the Trial Court alone to the effect that the Petitioner/A1 shall undergo one year Simple Imprisonment and to pay a fine of Rs.5000/-, in default to undergo three months Simple Imprisonment and that each of the Petitioners/Accused shall pay a fine of Rs.500/- each, in default to undergo two weeks Simple Imprisonment. As against the same, this Criminal Revision Petition has been filed.
14.This court heard the submissions of the learned counsel on either side.
15.The learned counsel for the Petitioners would submit that both the courts below have failed to take into consideration the enormous delay in the First Information Report being registered and the contradictions in the evidence of PW.1 victim and PW.2 her husband with regard to the reason for the delay in giving the complaint. He would further submit that it is the clear evidence of PW.8, Sub Inspector of Police, that on a complaint given by the Petitioner/A1, a case had been registered against PW.2 and his brother for having threatened the Petitioner/A1 and only after registration of the case against PW.2 and his brother, the counter case in Cr.No.248 of 2013 had been belatedly given as an after thought and as a counter blast to the earlier complaint, that too after five days of the present occurrence and that none of the independent witnesses in the Village had been examined. He would further submit that it is the case of the Prosecution witnesses that after the occurrence, a Panchayat was conducted in the presence of elders in the http://www.judis.nic.in 8 Village, however, the Prosecution has not examined anyone of the Panchayatars in the Village.
16.The learned counsel for the Petitioners would further submit that the allegation against the Petitioner/A1 was that he had taken a photograph of PW.1 from the nearby house under construction belonged to one Minnal Elumalai and that the Respondent has neither cited him as a witness nor examined him during the course of the investigation and that the courts below have failed to take in to consideration the exaggerations in the evidence of PW.5, a close relative of PW.1 and PW.2 and as per his evidence, he was said to have seen the Petitioner/A1 while taking the photograph and that he had informed it to PW.1 and thereafter, chased him, but nothing had been spoken to by PW.1 or PW.2 or PW.3 about PW.5 having spoken about the Petitioner/A1 taking photograph and that it is the evidence of PW.3 that immediately after the occurrence, he had gone to the house of the Petitioner/A1 and told him to abscond for some time saying that if PW.2 comes to the knowledge of the occurrence, he will not live with PW.1 and thereby, inferring that some other relationship between them might be wrongly projected and in such circumstances, he would seek for allowing this Criminal Revision Petition, by setting aside the impugned judgements of the courts below.
17.On the other hand, the learned Additional Public Prosecutor for the Respondent would submit that PW.1 is a Villager and her husband is working as a Coolie in Chennai and he used to come to the Village once in 15 days and after he came from Chennai, the complaint had been given to the http://www.judis.nic.in 9 Respondent and that much significance cannot be attached to the delay in giving the complaint since a woman will be reluctant to give a complaint immediately in respect of an incident and would seek for dismissal of this Criminal Revision Petition .
18.I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire materials available on record.
19.The question arises for consideration is as to whether the Prosecution has proved the charges levelled against the Petitioner/Accused under Section 294(b) of IPC and Section 4 of the Tamil Nadu Women Harassment Act, by cogent and convincing evidence.
20.While analysing the evidence, it is the categoric evidence of PW.8, Sub Inspector of Police, that on 01.06.2013 at 5.00 p.m. PW.2, husband of PW.1 and one Jeyachandran had attempted to run over the Petitioner/A1 with a vehicle, in respect of which, a complaint was given against them and a case was registered and the said complaint was marked as Ex.D1. However, strangely, Ex.D1 has not been cited in the impugned judgements. The present complaint in the case on hand in respect of the alleged incident on 27.05.2013 has been given to the Respondent on 01.06.2013 at 21.00 hours which is much belatedly after the earlier incident occurred at 5.00 p.m. in respect of which Ex.D1 had been given.
21.Now, in respect of the delay, while analysing the evidence of PW.1 and PW.2, PW.1 in her evidence had deposed that her husband had come from Chennai after five days and that was the reason for the delay in giving the http://www.judis.nic.in 10 complaint, whereas it is the categoric admission of PW.2 that he had come to the Village on the next day and thereafter, a Panchayat was conducted and that the complaint was made to the elders in the Village and since no action was taken by the elders in the Village, the complaint had been given on 01.06.2013. Thus, it is clear that the present complaint had been given only after the earlier complaint Ex.D1 given by the 1 st Petitioner against PW.2 and thereby the reason for the delay in giving the present complaint does not seems to be satisfactory.
22. The above contradictions would show that some thing else would have happened. Further, PW.3 relative of PW.1 and PW.2 had deposed that even prior to the arrival of PW.2, he along with PW.1 and PW.4 had gone to the house of the Petitioner/A1 and questioned him and he had also told him that if PW.2 comes to know about the incident, PW.2 will not live with her and thereby, inferring that some thing else had been later attempted to be projected with different allegations.
23.Admittedly, in this case, the Respondent had not taken any steps to recover the alleged material object, cell phone, by which, the Petitioner/A1 was said to have taken photograph of PW.1 while she was taking bath in a thatched bathroom covered by clothes. To cover up non recovery, evidence has been let in through PW.5 as if the cell phone was destroyed by the Petitioner/A1 immediately after the occurrence. In the opinion of this Court, it seems to be unbelievable. Further, PW.8 and PW.9 have not deposed about any steps having been taken by them for recovery of the cell phone, which is a vital piece of evidence in respect of the allegation that the Petitioner/A1 had http://www.judis.nic.in 11 attempted to take a photograph of PW.1 while taking bath.
24. Further, other than PW.1 and PW.5, no other person has spoken about having seen the Petitioner/A1 taking photograph of PW.1 while taking bath. The evidence of PW.5 seems to be exaggerated, artificial and thereby, lacks credence and consequently, cannot be believed.
25. The version of the Prosecutrix is improbable and it is difficult to accept the same on its face value, which completely lacks corroboration on material particulars, regarding the incident. The contradictions, embellishments and exaggeration, as stated above belies the case of the Prosecution and thereby, in the opinion of this Court, the present case has been laid only as a counter blast to the earlier complaint given by the Petitioners in respect of a criminal intimidation act of PW.2 and one Jeyachandran and that was the reason as to why the complaint had been given after a delay of five days.
26.Further, in order to prove the offence under Section 294(b) of IPC, the Prosecution should prove the necessary ingredients of Section 294(b) of IPC, viz. (i) an obscene act must have been done in a public place, or (ii) acts were done by the accused causing annoyance to others.
27.In 1996 4 SCC 17 (Pawan Kumar Vs. State of Haryana), the Honourable Supreme Court had held thus:-
9. In order to secure a conviction the provision requires two particulars to be proved by the prosecution, i.e. (i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene songs or words in or near any public place; and (ii) has so caused annoyance to others. If the act complained of is not obscene, or is not done in any public place, or the song recited or uttered is not obscene, or is not sung, recited or uttered in or near any public place, or that it causes no annoyance to others, the offence is not http://www.judis.nic.in 12 committed. ....”
28.In (2010) 8 SCC 628 ( Madan Mohan Singh Vs. State of Gujarat and Ors), it was held that where FIR itself did not have any material or was not capable of being viewed as having material for offence under Sections 306 and 294(b) IPC, the First Information Report was liable to be quashed.
29.In 2019 SCC Online Ker 2112 (James Jose Vs. State of Kerala), it was held as under:-
“6. On a perusal of Annexure A2, it would reveal that none of the ingredients under Section 294(b) of the Indian Penal Code is attracted. The vague allegation or general statement that there was utterance of obscene words in the FIR is not enough to constitute an offence under Section 294(b) of the Indian Penal Code. In order to attract Section 294(b) IPC, the place of occurrence should be a “public place” or near a “public place”. The allegation against the petitioner is that he has threatened the victim and uttered obscene words by using mobile phone and that will not tantamount to prove that he called obscene words in a public place or near a public place. So, the ingredients as contemplated under Section 294(b) of the IPC is not attracted....”
30.In this case on hand, the allegation against the Petitioners/ accused is that they had uttered obscene words against the Prosecution witnesses in the house of the Petitioner/A and it is not a public place or near a public place. Further, none of the witnesses have spoken about the Petitioner/Accused uttering any obscene word or doing any obscene act in or near any public place. When the Prosecution, by letting in valid oral and documentary evidence, has not proved that by the acts of the Petitioners/ accused, the public were annoyed, it can be stated that no offence under Section 294(b) is committed and consequently, the conviction under Section 294(b) of IPC cannot be sustained.
31.Though at the stage of revision, the Courts should refrain from re- http://www.judis.nic.in 13 appreciating the evidence as if a second Appellate Court , having carefully scrutinized the evidence on record, this Court is of the opinion that the Prosecution has not proved its case beyond all reasonable doubts and that the Trial Court had not properly looked into the evidence properly and wrongly convicted the Petitioner/Accused and thereby, committed error and illegality by wrong and perverse finding. The Appellate Court, without properly appraising the evidence confirmed the conviction and sentence. In the opinion of this Court, the Courts below committed error and illegality and thereby the judgements of the courts below are liable to be set aside. Consequently, the Petitioners are entitled to acquittal from the charges levelled against them.
32.In the result, this Criminal Revision Petition is allowed. The impugned judgements of conviction and sentence are set aside. The Petitioners/Accused are acquitted of the charges levelled against them. The bail bond if any executed by them shall stand cancelled and the fine amount if any paid by them shall be refunded to them.
07.11.2019 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To:
1. The Inspector of Police, Avalurpettai Police Station
2. The II Additional District Sessions Judge, Tindivanam,
3. The Judicial Magistrate, Gingee.
4. The Public Prosecutor, High Court, Madras http://www.judis.nic.in 14 A.D.JAGADISH CHANDIRA, J.
Srcm Crl.RC.No.67 of 2016 07.11.2019 http://www.judis.nic.in