Thursday, 6 April 2017

Whether offence U/S 509 of IPC is made out against accused even if obscene words are not heard by victim?

Learned   counsel   for   the   appellant   was   at   pains   to
argue that, as PW2 Priyanka Raorane had not heard the obscene
remark hurled at her by the accused, the accused is not liable for
conviction for the offence punishable under Section 509 of the
IPC,   and   at   the   most,   he   can   be   convicted   for   the   offence

punishable under Section 294 of the IPC.  Section 509 of the IPC
reads thus :
509. 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.
Evidence of PW1 Akshay establishes what were utterances of the
accused addressed to PW2 Priyanka Raorane, though she might
not have heard the same.  At the cost of repetition, it needs to be
put   on   record   that,   the   accused,   upon   seeing   PW2   Priyanka
Raorane, uttered  “kya ball hai.”   These utterances are obscene
remarks on breast of PW2 Priyanka Raorane.   Therefore, such
utterances are undoubtedly intending to insulting the modesty of
PW2 Priyanka Raorane.   Section 509 of the IPC provides that

utterances intending to insult the modesty of woman should be
with   an   intention   that   such   words   or   sound   shall   be   heard.
Section  509  of the IPC  does not  provide that such  utterances
should   be   heard   by   the   subject.     Hearing   such   utterances   by
anybody would amount to the offence punishable under Section
509 of the IPC.  Hence, no infirmity can be found in the order of
conviction of the accused for the offence punishable under Section
509 of the IPC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.791 OF 2012
DIVAKAR BHAIRAVNATH YADAV @ ROCKY 
V/s.
THE STATE OF MAHARASHTRA 
CORAM : A. M. BADAR
DATE : 17th NOVEMBER 2016 &
18th NOVEMBER 2016.
Citation: 2017 ALLMR(CRI)941

1 By   this   appeal,   appellant   /   convicted   accused   is
challenging the judgment and order of his conviction passed on
28th  December   2011   in   Sessions   Case   No.18   of   2011   by   the
learned 3rd Ad­hoc Assistant Sessions Judge, Greater Bombay. The
appellant / accused was convicted for the offences punishable
under Sections 509, 506(II) and 307 of the IPC.  For the offence
punishable under Section 509 of the IPC, he was sentenced to

suffer rigorous imprisonment for 6 months and to pay fine of
Rs.500/­, in default, to suffer simple imprisonment for 15 days;
for the offence punishable under Section 506(II) of the IPC, the
appellant was sentenced to suffer rigorous imprisonment for 1
year and to pay fine of Rs.500/­, in default, to suffer further
simple imprisonment for 15 days; and for the offence punishable
under   Section   307   of   the   IPC,   the   appellant   /   accused   was
sentenced to suffer rigorous imprisonment for 10 years and to pay
fine   of   Rs.3,000/­,   in   default,   to   suffer   further   simple
imprisonment for 1 month.   He was acquitted of the offences
punishable under Section 504 of the IPC and under Section 135
read with Section 37(1)(a) of the Bombay Police Act.  Substantive
sentences imposed on the appellant / accused were directed to
run concurrently.  For the sake of convenience, the appellant shall
be referred to as the accused.
2 Heard   the   learned   counsel   appearing   for   the
appellant / accused.   She vehemently argued that evidence of
prosecution and particularly that of PW7 Dr.Shams Tabrez does

not show that injured Pravin Padwal had suffered serious injuries
which were ordinarily sufficient to cause death of a human being.
The learned counsel argued that, though the offence punishable
under Section 307 of the IPC does not require causing of even
hurt, but intention of the accused is required to be established.
Such   intention,   according   to   the   learned   counsel   for   the
appellant / accused can be gathered from the nature of weapon
used, nature of injury caused as well as opportunities for the
accused for causing injuries.  The learned counsel argued that in
the case in hand, though according to the prosecution case, the
accused was holding rampuri knife having blade of length of 5
inches, injury allegedly caused to PW3 Pravin Padwal is of size 2
cm x 2 cm x peritoneal deep.   That, though the accused was
having tons of opportunities to inflict several blows of knife, he
had inflicted only one blow, and as such, it cannot be said that the
accused   had   assaulted   PW3   Pravin   with   such   intention   and
knowledge, and in such circumstances, that if by that act, he had
caused death of PW3 Pravin, then, he would have been guilty of
murder. The learned counsel for the appellant / accused further

argued that offence punishable under Section 509 of the IPC is
also not made out by the prosecution as the utterances allegedly
made   by   the   accused   were   not   even   heard   by   PW2   Priyanka
Raorane.    According  to  the  learned  counsel  for  the  appellant,
evidence   of   the   prosecution   is   suffering   from   several
contradictions and the same is not consistent.  Evidence of PW1
Akshay is at variance with evidence of PW5 Prakash Ramugade,
the Investigating Officer, in respect  of the time when Akshay was
present at the spot.  Therefore, in every probability, PW1 Akshay is
deposing falsely to implicate accused in the crime in question.
The   learned   counsel   further   argued   that   the   prosecution   has
suppressed the genesis of the incident as though according to the
prosecution case, the accused has caused injury by means of knife,
medical   papers   show   that   PW3   Pravin   had   suffered   contused
lacerated wound.  Therefore, according to the learned counsel for
the appellant, the appellant / accused is entitled for benefit of
doubt in this case, and therefore, the appeal needs to be allowed.

3 I have also heard the learned APP appearing for the
respondent / State.   He vehemently argued that the accused is
identified   by   the   prosecution   witnesses   and   evidence   of   PW3
Pravin cannot be jettisoned because being an injured witness, his
presence on the scene of occurrence cannot be doubted.   The
learned APP further argued that the weapon used by the accused
is knife and the part of body chosen for giving a blow is abdomen.
This,   according   to   the   learned   APP,   reflects   intention   of   the
accused   to   commit   murder  of   PW3   Pravin.     The   learned   APP
submitted that for proving the offence under Section 509 of the
IPC, intention of the accused is relevant, and what is need to be
examined is utterances hurled against the victim and not whether
such utterances were actually heard by the victim.   The learned
APP, therefore, submitted that the impugned judgment and order
convicting the accused needs to be confirmed.  
4 In order to bring home the guilt to the accused, the
prosecution has examined in all seven witnesses. Akshay Raorane
is examined as PW1 at Exhibit 10.  FIR lodged by him is at Exhibit

11.  Priyanka Raorane is examined as PW2 at Exhibit 12.  Injured
Pravin is examined as PW3 at Exhibit 14.  Panch witness B. Gupta
is examined as PW4 at Exhibit 15.   Exhibit 16 is the Spot cum
Seizure panchnama, whereas, Exhibit 17 is Seizure panchnama of
clothes of the victim, namely, Pravin Padwal.  Investigating Officer
Prakash Ramugade is examined as PW5 at Exhibit 18. Another
Investigating Officer, namely, M.S. is examined as PW6.  Dr.Tabrej,
who   was   present   at   the   time   of   operation   of   PW3   Pravin   is
examined as PW7 at Exhibit 25 and Exhibit 26 are the papers of
medical treatment of injured PW3 Pravin.  
5 Considering the nature of charge leveled against the
accused, fate of the prosecution case to a large extent hinges on
testimonies of PW1 Akshay, PW2 Priyanka and PW3 Pravin.  It is
the case of prosecution that on 18th December 2009, PW1 Akshay
Raorane accompanied by his aunt PW2 Priyanka Raorane and one
Nikita Raorane had returned from Churchgate to Dahisar Local
Railway Station.  When they were passing from near the subway
of the local railway station, looking at PW2 Priyanka Raorane, the

accused uttered “kya ball hai” intending to outrage her modesty.
PW1 Akshay took exception to this conduct of the accused. The
accused   pushed   him.     Therefore,   PW1   Akshay   telephonically
contacted   PW3   Pravin,   a   home­guard,   who   happens   to   be   his
maternal uncle.  PW3 Pravin immediately reached on the spot and
questioned the accused.  Thereupon, according to the prosecution
case, the accused whipped out a rampuri knife and dealt a blow
thereof on abdomen of PW3 Pravin causing bleeding injury to
him.   Pravin was then taken to Bhagwati hospital for medical
treatment where he was operated.
6 Careful scrutiny of evidence of PW1 Akshay and PW2
Priyanka   goes   to   show   that   in   unison   both   these   witnesses
deposed that when they came out of Dahisar local railway station,
the incident in question took place.  As per version of PW1 Akshay,
the   accused   uttered   obscene   words  “kya   ball   hai”  for   PW2
Priyanka. Evidence of both these witnesses further goes to show
that the accused abused Akshay, and therefore, PW1 Akshay called
his maternal uncle PW3 Pravin, who happens to be a home­guard.

Depositions of PW1 Akshay, PW2 Priyanka and PW3 Pravin then
congruously shows that when PW3 Pravin tried to intervene, the
accused abused him, took out a knife and stabbed PW3 Pravin on
abdomen.   Thereafter, as seem from their evidence, the accused
threatened them and others by uttering that if anyone dares to
come near, he will  stab  him.   Evidence of  PW1 Akshay  gains
further corroboration from the FIR Exhibit 11 lodged by him with
promptitude.
7 The   incident   of   assault   on   PW3   Pravin   coming   on
record   through   version   of   these   three   witnesses   gains   further
corroboration from evidence of PW7 Dr.Tabrej. His evidence shows
that he was attached to Bhagwati hospital and he had examined
injuries suffered by PW3 Pravin.  Version of PW7 Dr.Tabrej shows
that PW3 Pravin was having a stab injury of size 2 cm x 3 cm x
peritoneal   deep   at   left   para   umbilical   region,   apart   from   an
abrasion  to his left forearm.  This Medical Officer further deposed
that   PW3   Pravin   was   operated   at   Bhagwati   hospital.     Crossexamination
of this witness goes to show that when police came to

the hospital, PW3 Pravin was in post operative sedation.    This
fact   deposed   by   the   Medical   Officer   finds   corroboration   from
version of PW3 Pravin.  As per version of PW3 Pravin, ultimately
police recorded his statement on 22nd December 2009 at Bhagwati
hospital as before that he was unconscious.  
8 Exhibit 26 are papers of medical treatment of PW3
Pravin duly proved by PW7 Dr.Tabrej. It is seen from medical case
papers at Exhibit 26 that PW3 Pravin had taken treatment as
injured patient with the said hospital from 18th December 2009 to
27th  December 2009.   Final diagnosis recorded by the Medical
Officer is suffering of stab injury by PW3 Pravin. In the wake of
this evidence, I find no substance in the contention of learned
counsel for the appellant / accused that the documents at Exhibit
26 show that PW3 Pravin has suffered contused lacerated wound.
Rather the medical case papers show stab wound suffered by PW3
Pravin and the manner in which it was operated by giving incision
to the abdomen of PW3 Pravin.

9 PW1   Akshay,   PW2   Priyanka   and   PW3   Pravin   have
categorically identified the appellant / accused as the person who
has caused stab injury to PW3 Pravin.   Identification before the
court is a piece of substantive evidence and there is nothing on
record   to   doubt   testimonies   of   these   witnesses   recording
identification of the accused.   Even otherwise, evidence of PW1
Akshay and PW5 Prakash Ramugade, Investigating Officer, as well
as   PW6   Motiram   Sable,   goes   to   show   that   the   accused   was
arrested from the spot of the incident soon after the incident.  An
attempt was made to show that this evidence of arrest of the
accused   from   the   spot   soon   after   the   incident   is   doubtful,   by
contending that evidence of PW1 Akshay shows that he was at the
hospital up to 11 to 11.15 p.m. whereas, that of PW5 Prakash
Ramugade shows that at about 10. 45 p.m. on that day, i.e. 18th
December   2009,   Akshay   was   at   the   spot.     Such   minor
inconsistencies in version of a witness needs to be ignored because
a witness is not expected to look at the watch on each and every
time during happening of events in succession after commission of
the crime in question.  The time gap is so minimal that it needs to

be ignored and much capital cannot be made out of this small
variance  in  deposition  of   these   two   witnesses   about  the  time.
Discrepancies which do not go to the root of the matter and shake
the basic version of the witness cannot be annexed with undue
importance.   What is required to be considered is a probability
factor.  Nothing is brought on record to show that versions of PW1
Akshay,   PW2   Priyanka   and   PW3   Pravin   about   the   incident,
suffered from basic infirmities rendering it unworthy of credit.
Therefore, cumulative effect of versions of these three witnesses
coupled with that of  PW7 Dr.Tabrej unerringly points out causing
stab injury by the accused to PW3 Pravin on 18th December 2009.
10 Evidence on record shows that half T­Shirt and sando
baniyan of injured Pravin was seized vide seizure memo Exhibit
17 which is duly proved by PW4 Bhupen Gupta, panch witness, as
well as PW5 Prakash Ramugade, Investigating Officer.  It is also
seen that the blood stained knife was seized from the accused vide
seizure panchnama Exhibit 16, proved by PW4 Bhupen Gupta and
PW5 Prakash Ramugade.   These articles were sent for chemical

analysis and report of Chemical Analyzer shows that all these
articles were stained with blood of “B” Group.  Evidence on record
shows   that   PW3   Pravin   had   suffered   bleeding   injury   causing
staining of seized half T­Shirt and sando baniyan by blood.  These
clothes are having corresponding cut reflecting stab injury.  Thus,
by applying test of a prudent person, it can be said that half TShirt
and sando baniyan are stained with blood of PW3 Pravin and
the group of his blood is “B”.  Finding of blood of “B” Group on
seized knife gives corroboration to the prosecution case of assault
by means of the said knife by the accused to PW3 Pravin.
11 Now let us examine whether the stab injury inflicted
on PW3 Pravin by the accused was with such an intention and
knowledge and in such circumstances, that if by that act, he had
caused death to PW3 Pravin, then he would have been guilty of
murder of PW3 Pravin.     It is well settled that for proving the
offence punishable under Section 307 of the IPC, causing of hurt
is not at all necessary.  What is material is the intention coupled
with an overt act.  All that is necessary, is to establish the intention

with which the act is done.   Once the intention is established, the
nature of act will be wholly immaterial.  Presence of injuries, their
number and nature of injuries suffered by the victim are always
helpful while gathering intention of the accused in committing the
act constituting the offence.  Such intention can be gathered from
nature of the weapon, the part of body chosen for giving blows
and nature of injuries inflicted, apart from opportunities available
with   the   accused.     Intention   is   something   which   is   done
intentionally, deliberately and purposely.
12 If evidence adduced by the prosecution in this case is
examined   in   the   light   of   this   requirement   of   the   offence
punishable under Section 307 of the IPC, then it is seen that the
accused who was holding a rampuri knife having 5 inch blade had
given only one blow on person of PW3 Pravin. The size of single
injury as seen from the evidence of PW7 Dr.Tabrej is merely 2 cm
x 3 cm x peritoneal deep. Evidence of prosecution witnesses does
not show that there was resistance offered by the victim or other
persons to the accused at the time of the incident or soon after the

incident.  Still, apart from inflicting one single blow, the accused
did not inflict any other injury or blow of knife on person of PW3
Pravin.  Though PW1 Akshay was very much present on the scene
of occurrence at the time of the incident, the accused had not
caused any hurt to him in the incident.  
13 Evidence of PW7 Dr.Tabrej does not show whether the
injury   inflicted   by   the   accused   on   PW3   Pravin   was   a   life
threatening injury.   There is no evidence to the effect that the
injury suffered by PW3 Pravin was capable of causing his death or
was sufficient in the ordinary course of nature to cause his death.
Therefore, in the instant case, the prosecution has not adduced
necessary evidence to prove intention of the accused, requisite for
making the offence punishable under Section 307 of the IPC.
14 With this, one will have to examine what offence is
committed by the accused by stabbing PW3 Pravin by means of a
knife.   Evidence of PW3 Pravin and PW7 Dr.Tabrej shows that
because of stab injury, PW3 Pravin was operated at the hospital,

where he was admitted as an indoor patient for a considerable
period.  Perusal of medical case papers at Exhibit 26 reflects that
PW3 Pravin had undergone surgery and sutured to the wound.
This indicates that PW3 Pravin must have suffered because of the
stab injury, atleast for a period of twenty days with severe bodily
pain.  It can be safely concluded that PW3 Pravin might not have
been in a position to follow his ordinary pursuits atleast for a
period of twenty days after suffering the injury at the hands of the
appellant / accused.   The prosecution, therefore, has certainly
made out the offence punishable under Section 326 of the IPC.
As such, the appellant is certainly liable for conviction for the
offence punishable under Section 326 of the IPC, and accordingly,
he is convicted of the said offence.
15 Learned   counsel   for   the   appellant   was   at   pains   to
argue that, as PW2 Priyanka Raorane had not heard the obscene
remark hurled at her by the accused, the accused is not liable for
conviction for the offence punishable under Section 509 of the
IPC,   and   at   the   most,   he   can   be   convicted   for   the   offence

punishable under Section 294 of the IPC.  Section 509 of the IPC
reads thus :
509. 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.
Evidence of PW1 Akshay establishes what were utterances of the
accused addressed to PW2 Priyanka Raorane, though she might
not have heard the same.  At the cost of repetition, it needs to be
put   on   record   that,   the   accused,   upon   seeing   PW2   Priyanka
Raorane, uttered  “kya ball hai.”   These utterances are obscene
remarks on breast of PW2 Priyanka Raorane.   Therefore, such
utterances are undoubtedly intending to insulting the modesty of
PW2 Priyanka Raorane.   Section 509 of the IPC provides that

utterances intending to insult the modesty of woman should be
with   an   intention   that   such   words   or   sound   shall   be   heard.
Section  509  of the IPC  does not  provide that such  utterances
should   be   heard   by   the   subject.     Hearing   such   utterances   by
anybody would amount to the offence punishable under Section
509 of the IPC.  Hence, no infirmity can be found in the order of
conviction of the accused for the offence punishable under Section
509 of the IPC.
16 Similarly, evidence on record shows that the accused
had intimidated the prosecution witnesses as well as public at
large after assaulting PW3 Pravin, by branding knife.  Therefore,
no   infirmity   can   be   found   in   his   conviction   for   the   offence
punishable under Section 506(II) of the IPC.
17 In the result, the appeal needs to be allowed partly by
modifying conviction of the appellant / accused for the offence
punishable under Section 307 of IPC to that under Section 326 of
the IPC.  

Rest of the order of conviction and sentence of the
appellant / accused needs to be maintained.   The only question
left for decision is, now what should be the sentence to which the
accused   is   liable   for   committing   an   offence   punishable   under
Section 326 of the IPC.   Needless to state that all substantive
sentences of imprisonment imposed on the appellant / accused
are directed to run concurrently by the learned trial court.
18 So far as the sentence part of the impugned order is
concerned, the appellant is reported to be behind the bars from
18th  December   2009,   and   as   such,   he   has   suffered   rigorous
imprisonment for a period of about 6 years 11 months.  Similarly,
it   is   seen   from   the   evidence   that   the   appellant   is   a   footpath
dweller and as such, there is no propriety in imposing any fine on
him for the offence committed by him, because of his extreme
poverty.  
Therefore,   the   sentence   of   rigorous   imprisonment
imposed upon the appellant / accused is modified to the sentence
already undergone by him for all the offences proved against him,
including the one punishable under Section 326 of the IPC.
The appeal is partly allowed to this extent and the
same is disposed of.  
The   appellant   /   accused   be   set   at   liberty,   if   not
required in any other case. 
(A. M. BADAR, J.)


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