S. Acharya, J. -
(1.) THE Petitioners stand convicted under, Sections 509 and 323, Indian Penal Code. Out of the four Petitioners, Petitioner Lalu Prasad Sribastav has been released under Section 4 of the Probation of Offenders Act, and has been directed to remain under the supervision of the Probation Officer. Each of the remaining three Petitioners has been sentenced to R.I. for 3 months for the offence under Section 323, Indian Penal Code and to S.I. for 2 months for the offence under Section 509, Indian Penal Code.
(2.) THE prosecution case in short is that p.ws. 1 and 2 and one Kumudini Bohidar, all students of the local school, were returning from school on 21 -10 -1970 when some boys misbehaved with them P.w. 1 reported this matter in her house. Because of this incident p.w. 5, the brother of p.w. 1, was asked to escort p.ws. 1, 2 and Kumudini on their way to school on the next day, i.e. on 22 -10 -1970 (the date of occurrence) On that day when they were proceeding towards the school and were near the Mangal Bazar crossing, the four Petitioners came out of a hair -cutting saloon in that market and addressed obscene, slang and objectionable words towards p.ws. 1, 3 and Kumudini. At this p.w. 5 protested, but he was immediately surrounded and assaulted by the Petitioners. P.ws. 3 and 4, who were near about that place, also protested against the behaviour attitude and action of the Petitioners, and they also were assaulted by the Petitioners. P.w. 5 thereafter, lodged the F.I.R. Ext. 1 at the police station. The Petitioners were tried for offences under Sections 342, 323 and 509, Indian Penal Code, but they were convicted only under Sections 323 and 509, Indian Penal. Code. The appellate Court confirmed their conviction and sentence. Both the Courts below found that the Petitioners addressed slang, obscene and objectionable words towards p.ws. 1, 2 and Kumudini Bohidar and thereby insulted their modesty; and that when p.w. 5 protested against the aforesaid utterances of the Petitioners, they assaulted p.w. 5 and thereafter p.ws. 3 and 4 on the public road, and caused injuries on their persons.
(3.) MR . Mohanty, the learned Counsel appearing for the Petitioners, contends that the conviction of the Petitioners under Section 509, Indian Penal Code cannot be upheld as the obscene and slang words allegedly uttered by the Petitioners have not been placed on record. On a careful consideration of the different aspects of the matter I am unable to accept the contention of Mr. Mohanty as broadly urged and placed by him. It is of course true that the prosecution should make an honest effort to place before the Court all materials showing the nature of the complained of words. Better it is, if the exact words are placed on record so that it may be easier for the Court to assess therefrom if the requisite ingredients of this offence are satisfied or not. But this rule of fair practice should not be carried so far as to say that on the mere absence of the precise abusive or insulting words on record, even though the said omission was accidental or unintentional or due to some other reasonable cause, the accused would be entitled to an acquittal only on that score. In my opinion if there is convincing evidence on record that actually obscene and slang words were uttered with the intention of insulting the modesty of a woman, then it would be improper, nay illegal, to reject such convincing evidence and/or not to act on the same merely because the precise abusive words uttered by the accused were not placed before the Court.
To establish an offence under Section 509, Indian Penal Code it is necessary to establish the following ingredients:
(1) Intention to insult the modesty of a woman.
(2) The insult must be caused
(i) by uttering any words, or making any sound or gesture, or exhibiting any object intending that such word or sound shall be heard or that the gesture or object shall be seen by such woman, or
(ii) by intruding upon the privacy of such woman. The intention to insult the modesty of a woman is the essential ingredient of the offence. So, if the Court, on a consideration of the evidence on record in its entirety and the overall facts and circumstances of the case disclosed therefrom, arrives at the finding that the accused had the aforesaid intention, and for that he said something or uttered some words, it can justly hold the accused guilty under Section 509, Indian Penal Code, no matter the exact words uttered by the accused were not placed on record. At times, it may not be possible for a modest and coy school or college girl or a woman of shy nature to utter or reproduce in the public Court the exact slang, obscene and abusive words uttered by the accused against her. Apart home the same, the exact objectionable words may not come on record due to various other honest and bona fide reasons. So it cannot be aid or laid down as a mandatory rule of law that even when the Court is convinced from the evidence on record that words or statements were uttered by the accused intending thereby to insult the modesty of a woman Of that the modesty of a woman was actually affected by such utterances it cannot hold the accused guilty of an offence under Section 509, Indian Penal Code merely because the precise objectionable words could not be placed on record. I get support for my above view from the decision reported ill 1961 Gujrat Law Reporter, 196.;