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Section 509 in The Indian Penal Code
Section 504 in The Indian Penal Code
Section 34 in The Indian Penal Code
Section 506 in The Indian Penal Code
Section 294(a) in The Indian Penal Code

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Kerala High Court
Santha vs State Of Kerala on 16 December, 2005
Equivalent citations: 2006 (1) KLT 249
Author: K P Nair
Bench: K P Nair

ORDER K. Padmanabhan Nair, J.

1. Petitioners are accused Nos. 1 and 2 in C.C.No. 62 of 2004 on the file of the Special Judicial First Class Magistrate (Marad Cases) Kozhikode. At the relevant point of time, the first accused was working as an Upper Division Clerk and the second accused, her husband, was employed in Kerala Soaps and Oil Mills Limited.

2. The case arose from a private complaint filed by P.W.1 before the Magistrate alleging that the accused committed the offences punishable under Sections 504, 509, 294(a), 506(1) read with Section 34 of the Indian Penal Code. The complaint was forwarded to the Sub Inspector of Chevayur, under 8.156(3) of the Code of Criminal Procedure. He registered the case and investigated the same. After investigation, the final report was filed alleging that the accused committed the offences punishable under Sections 504, 509, 294(a), 506(1) read with Section 34 of the Indian Penal Code. When the revision petitioners appeared before the learned Magistrate, copies of the relevant documents were furnished to them. The substance of accusation was read over and explained to them. They understood the same and pleaded not guilty.

3. On the side of prosecution, P.Ws. 1 to 10 were examined. Exts.Pl to P3 proved and marked. After the prosecution evidence was over, the accused was questioned under Section 313 of the Code of Criminal Procedure. They denied all the allegations levelled against them. No defence evidence was adduced. The learned Magistrate found the accused guilty of the offences punishable under Sections 504 and 509 read with Section 34 of the Indian Penal Code. They were further found not guilty of the offences punishable under Sections 294(a) and 506(1) I.P.C. and acquitted of those offences. After convicting the accused, the learned Magistrate sentenced the revision petitioners to undergo simple imprisonment for three months each and a fine of Rs. 2,000/- each for the offence under Section 504 of the Indian Penal Code. The second accused was sentenced to undergo simple imprisonment for one month for the offence under Section 509 I.P.C. No separate sentence was imposed on the first accused for the offence punishable under Section 509 of the Indian Penal Code. Fine if any realised was directed to be paid as compensation to the defacto complainant. The substantive sentence imposed on the second accused was directed to run concurrently.

4. Aggrieved by the conviction and sentence, the revision petitioners filed Crl.Appeal No. 848 of 2004 before the Court of Sessions, Kozhikode. The case was made over to the I Additional Sessions Judge, Kozhikode. The learned Additional Sessions Judge set aside the conviction and sentence imposed on the revision petitioners under Section 504 I.P.C. and acquitted them of that offence but confirmed the conviction of the revision petitioners for the offence under Section 509 I.PC. The sentence imposed on the second accused for that offence was set aside and the case was remanded to the trial court for imposing proper sentence on the revision petitioners under Section 509 read with Section 34 I.P.C. after hearing the counsel. The petitioners were directed to appear before the court below on 20-12-2005. Challenging those findings, this Criminal Revision Petition is filed.

5. The learned Counsel appearing for the petitioners argued that there is absolutely no legal or factual basis for convicting the petitioners for the offences under Section 509 I.P.C. It is argued that the second accused, the husband of the first accused, was found guilty of the offences punishable under Section 509 I.P.C., convicted and sentenced to undergo simple imprisonment for one month. It is submitted that the learned Sessions Judge did not find what exactly is the illegality in the sentence imposed on him, but remanded the case after setting aside the sentence imposed on him only to impose the sentence on the second accused. It is argued that in the absence of any revision by the defacto complainant or a regular appeal under Section 377 Cr.P.C. by the State, the learned Sessions Judge ought not have set aside the sentence imposed on the first and second accused and remanded the matter. It is argued that in this case, there are absolutely no materials on record to attract the offence under Section 509 I.P.C.

6. The appellants were prosecuted for the offences punishable under Sections 504, 509, 294(a), 506(1) read with Section 34 I.P.C. The learned Magistrate acquitted the revision petitioners of the offences punishable under Section 294(a) and 506(1) I.P.C. Those findings have become final and conclusive. Though the revision petitioners were found guilty of the offence punishable under Section 504 I.P.C. convicted and sentenced to undergo simple imprisonment for three months each and to pay a fine of Rs. 2,000/- each, the learned Sessions Judge set aside the conviction and sentence imposed on them under Section 504 I.P.C. and acquitted them of that offence.

7. The following questions arise for consideration in this Criminal Revision Petition:

(i)    Whether the finding of the courts below that the revision petitioners are guilty of the offence punishable under Section 509 I.P.C. is legal and proper?
 

(ii)   Whether the order of the Sessions Judge remanding the case for imposing the sentence on them is legal and proper?
 

8. I have carefully gone through the judgment rendered by the learned Magistrate. In paragraph 16 of the judgment, the learned Magistrate had considered the offence alleged under Section 509 I.P.C. It was observed that the evidence given by P.Ws.1 to 3 with respect to the taking bath by the accused No. 2 on the rear side of his house can be believed without any doubt. Finally it was held as follows:--
 Therefore, I hold that the accused No. 2 has insulted the modesty of the complainant and women folk in her house by exhibiting nudity while taking bath on the rear side of his quarters. 
 

There is no finding to the effect that the first petitioner committed any offence punishable under Section 509 I.P.C. But strangely, in the operative portion of the judgment it was held that accused Nos. 1 and 2 are guilty of the offences punishable under Sections 504 and 509 I.P.C. In paragraph 19 of the judgment it was held that imposing a simple imprisonment for one month to accused No. 2 for the offence under Section 509 I.P.C. would be sufficient punishment to the accused. No separate sentence was awarded on accused No. 1. The following are the reasons stated by the Magistrate for not imposing any separate sentence on the first accused. It was held as follows:--

In the strict sense the first accused is guilty of the offence under Section 504 I.P.C. only. By virtue of Section 34 I.P.C. she is found guilty of the offence under Section 509 also.

9. In Varghese v. State 1986 KLT 1285 a Division Bench of this Court had held that conviction without sentence is illegal. But this Court did not interfere in that case on the ground that the State had not filed any appeal. In this case also, the State has not filed any appeal. The defacto complainant has not preferred any revision. So the learned Sessions Judge went wrong in setting aside the sentence imposed on the second accused and remanding the case, for imposing a sentence on both accused.

10. Now I shall consider whether the prosecution has succeeded in establishing the criminality of the accused. Section 509 I.P.C. reads as follows:

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, 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.

The specific allegation levelled against the petitioners is that they used to take bath from the tap fitted on the rear side of the building in nudity and thereby committed the offence punishable under Section 509 I.P.C. A reading of Section 509 makes it clear that the intention to insult the modesty of a woman is essential to attract the offence. Even accepting the entire prosecution case as such, it is highly doubtful how the first accused, who is a lady, can be convicted for an offence under Section 509 I.P.C. in this case. Even if it is proved that she used to take bath without any clothes, how can that act will amount to an insult to the modesty of P.W.2, the husband or P.W.1 who is the defacto complainant and P.W.3 their daughter. Mere exhibiting of nude body is not sufficient to attract the mischief of Section 509 I.P.C. It must be proved that such an act was committed with the intention to insult the modesty of a woman. In the final report filed, there is no allegation that the accused used to take bath in nudity so as to insult the modesty of P.Ws. 1 and 3. On the other hand, the allegation levelled is that they intended to cause annoyance to P.W. 1 and his family. What is averred is:

There is no allegation that it was intended to insult the modesty of any woman. The allegation is that such an act was committed to harass and upset the mental peace of P.Ws. 1 to 3.

11. To prove the incident, the prosecution examined seven witnesses. P.W.1 is the defacto complainant. P.W.2 is her husband and P.W.3 is their daughter. They alone support the prosecution case. The prosecution examined P.Ws. 4, 5, 7 and 8 to prove the incident. P.W.4 is the neighbour. Though he said that he heard the accused uttering obscene words, he has not stated anything to attract the elements of Section 509 I.P.C. P.W.5 is the Estate Officer. He was examined to prove that P.Ws. 1 to 3 raised several complaints before him. He deposed that P.W.1 raised a complaint that the accused cut and removed - a bunch of plantains and also called her names. He had not stated that P.W. 1 raised any complaint so as to attract the elements of Section 509 I.P.C. P.W.7 was the Secretary of the N.G.O. Quarters Recreation Club. P.W.8 is another independent witness. There is nothing in the evidence of P.Ws. 7 and 8 also to attract an offence under Section 509 I.P.C. During cross examination they had deposed that they had not told the police that P.Ws. 1 to 3 raised a complaint that the accused used to take bath in nudity.

12. Now I shall consider the evidence of P.Ws. 1 to 3. In her chief examination, P.W.1 deposed that there was a tap on the rear side of the building where the petitioners were residing and they used to take bath without covering their body. She had further deposed that though the accused have a bathroom , they used to take bath in open space because of the hatred towards them. She deposed:

She had not deposed that it was intended to insult her modesty. During cross examination she admitted that neither herself nor her husband ever questioned the accused regarding their conduct of taking bath. P.W.2 is her husband. Even in chief examination the specific case put forward by P.W.2 was that the accused and their child used to take bath from the tap fitted on the rear side of the quarters. He further deposed that the second accused is taking bath while P.W.1 and P.W.3 are standing in the kitchen of their quarters. He had deposed that he saw the accused taking bath from the light emanating from the bulb fitted in the kitchen of his quarters. P.W.2 had also not deposed that the accused used to take bath in nudity so as to insult the modesty of P.Ws. 1 or 3. P.W.3 is the daughter of P.Ws. 1 and 2. In chief examination, she deposed that while herself and her mother are inside the kitchen, the second accused used to take bath from the tap in open without wearing any clothes. She deposed that the accused used to take bath between 6.30 P.M. and 7.00 P.M. It is very pertinent to note that P.Ws. 1 to 3 had no case that there was any electric bulb fitted at the rear side of the quarters of the revision petitioners from which any light was emanating. It is true that she subsequently added that they are taking bath during day time also. A reading of the evidence of P.Ws.1 to 3 shows that the accused are having enmity towards P.Ws.1 to 3. Even if the entire prosecution case is accepted as such that the second accused used to take bath in nudity none of the witnesses examined have no case that it was intended to insult the modesty of P.Ws.1 or 3. On the other hand, the specific case is that such an act was done to annoy the entire family of P.W.1.

13. There is yet another aspect. All the independent witnesses including the Estate Officer are not supporting the prosecution. Even in the penultimate paragraph of the complaint it is alleged that the accused used to take bath in nudity, with intent to cause mental harassment and not to outrage the modesty. The learned Magistrate did not consider whether it was just and proper to convict the accused based on the interested testimony of P.Ws. 1 and 3 alone. The view taken by the Magistrate is that the first accused is not guilty of the offence under Section 509 of the Indian Penal Code. The learned Magistrate convicted her with the aid of Section 34 I.P.C. How Section 34 can be invoked is also not considered. But the learned Magistrate did not impose any sentence on her. The learned Sessions Judge did not appreciate the evidence on record and consider whether the ingredients to attract Section 509 of the Indian Penal Code are established in this case. Whether me evidence on record is sufficient to attract the mischief under Section 509 I.P.C. was considered neither by the Magistrate nor by the Sessions Judge. Even if the entire evidence is accepted as such, no elements of Section 509 I.P.C. are proved in this case. So the conviction of the accused for the offence under Section 509 I.P.C. by the courts below and the sentence imposed on the second accused by the Magistrate under Section 509 I.P.C. are illegal and liable to be set aside.

In the result, the Criminal Revision Petition is allowed. The conviction of the petitioners under Section 509 I.P.C. and the sentence imposed by the Magistrate on the second accused are hereby set aside. They are acquitted of that offence and set at liberty.