Madras High Court
Sudalai Eswaran vs The State Represented By on 6 March, 2023
Crl.R.C(MD)No.775 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.03.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.775 of 2016
Sudalai Eswaran ...Petitioner
Vs.
The State represented by
The Inspector of Police,
Tirunelveli Town Police Station,
Tirunelveli.
(Crime No.500 of 2013) ...Respondent
Prayer : This Criminal Revision has been filed under Section 397 r/w
401 of Criminal Procedure Code, to call for the entire records pertaining
to the judgment delivered by the Judicial Magistrate No.V, Tirunelveli in
C.C.No.42 of 2015 vide his judgment dated 31.07.2015, which has been
subsequently modified by the Additional Sessions Judge/III Additional
Sessions Court, Tirunelveli in C.A.No.90 of 2015 vide his judgment,
dated 05.10.2016.
For Petitioner : Mr.P.Samuel Gunasingh
For Respondent : Mr.K.Sanjai Gandhi
Government Advocate (Crl.side)
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Crl.R.C(MD)No.775 of 2016
ORDER
The Petition has been filed to set aside the judgment passed by
the learned Additional Sessions Judge/III Additional Sessions Court,
Tirunelveli in C.A.No.90 of 2015, dated 05.10.2016, modifying the
judgment passed by the learned Judicial Magistrate No.V, Tirunelveli in
C.C.No.42 of 2015 vide judgment dated 31.07.2015.
2.The case of the prosecution is that while on 24.05.2013 at
about 5.00 p.m., the victim was going for purchasing goods, due to
previous enmity, the accused scolded her in filthy language and also
pulled her hand and threatened her with dire consequence for not
speaking to him through cell phone. On the complaint lodged by the
victim, the respondent registered the First Information Report in Crime
No.500 of 2013 for the offences under Sections 294(b) and 506(i) of IPC
and Section 4 of Tamil Nadu Prevention of Harassment of Women Act.
On completion of investigation, the respondent police filed a final report
and the same has been taken cognizance by the trial Court. Before the
trial Court, prosecution had examined PW1 to PW6 and marked five
documents as Ex.P1 to Ex.P5. On the side of the accused, he examined
DW1 and DW2 and marked two documents as Ex.D1 and Ex.D2. On
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Crl.R.C(MD)No.775 of 2016
perusal of oral and documentary evidence, the trial Court found that the
petitioner's guilty for the offences under Sections 294(b) of IPC and
Second 4 of Women Harassment Act and insofar as the offence, under
Section 506(ii) of IPC is concerned, he was acquitted. The petitioner
was sentenced to undergo three years rigorous imprisonment for the
offence under Section 4 of Tamil Nadu Prohibition of Harassment of
Women Act, and also imposed a fine of Rs.10,000/-, and three months
simple imprisonment for the offence under Section 294(b) of IPC, in
default, to undergo six months simple imprisonment. Aggrieved by the
same, the petitioner preferred an appeal and the Appellate Court
confirmed the conviction and reduced the sentence to six months simple
imprisonment for the offence under Section 4 of Tamil Nadu Prohibition
of Harassment of Women Act. Aggrieved by the same, the present civil
revision petition has been filed.
3. The learned counsel for the petitioner submitted that the
alleged occurrence was taken place on 24.05.2013 at about 5.00 p.m.
whereas the complaint lodged only on 25.05.2013. PW2 categorically
deposed that she had never seen the occurrence and she was standing far
away from the place of the alleged occurrence. Therefore, the deposition
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Crl.R.C(MD)No.775 of 2016
of victim was not corroborated by any of the witnesses. In fact, the
victim and the petitioner had relationship and it came to the knowledge
of the husband of the victim and as such, a false complaint has been
foisted against the petitioner. It was also categorically admitted by the
victim that they had relationship and the same was proved by producing
the photographs, which are marked as Ex.D1 and Ex.D2.
4.The learned Government Advocate (Crl.side) submitted that
the prosecution had proved their case beyond any doubt and as such both
the Courts below rightly convicted the petitioner for the offences under
Sections 294(b) of IPC and Section 4 of Tamil Nadu Prohibition of
Harassment of Women Act. Therefore, the order passed by the courts
below does not require any interference, since both the Courts below
concurrently convicted the petitioner for the offences under Section
294(b) of IPC and Section 4 of Tamil Nadu Prohibition of Harassment
of Women Act.
5. Heard the learned counsel appearing for the petitioner and
the learned Government Advocate (Crl.side) appearing for the
respondent.
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Crl.R.C(MD)No.775 of 2016
6. The case of the prosecution is that on 24.05.2013 at about
5.00 p.m., while the victim was going for purchasing goods near by
Thondar Sannathi, the petitioner pulled her hand and threatened her with
dire consequences as if she failed to speak to him through cell phone.
The victim was examined as PW1. She deposed that the occurrence took
place in the public place and it was seen by many people. The
occurrence had taken place between the fruit shop and Uchi Mahali
Temple. She also deposed that PW2 her mother-in-law is also one of the
witness. All the witnesses cited by the prosecution are close relatives of
the victim. However, the prosecution failed to examine any independent
witnesses to corroborate the evidence available on record. On perusal of
the evidence of PW2, who is none other than mother-in-law of the
victim, it is seen that she was standing far away from the place of the
alleged occurrence. She did not know about the occurrence and she has
not seen the occurrence. The complaint itself lodged only at the instance
of PW1's husband. Whereas the case of the petitioner is that he had
relationship with PW1. When it came to the knowledge of her family
members, they insisted to lodge a false complaint against the petitioner
as such, the occurrence took place on 24.05.2013, but the complaint
itself was alleged on 25.05.2013, for which, there is absolutely no
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Crl.R.C(MD)No.775 of 2016
explanation about the prosecution. When the occurrence had taken place
in the public, the prosecution ought to have examined any one of the
independent witness for proving the charges under Section 4 of Tamil
Nadu Prohibition of Harassment of Women Act and 294(b) of IPC. In
this regard, it is relevant to extract the provision under Section 294(b) of
IPC, which reads as under:
''294.Obscene acts and songs – Whoever, to the
annoyance of others-
(a) does any obscene act in any public place or
(b) sings, recites or utters any obscene song,
ballad or words, in or near any public place, shall be
punished with imprisonment of either description for a
term which may extend to three months, or with fine, or
with both.''
Admittedly, Section 294(b) of IPC is not attracted as against the
petitioner.
7.It is also relevant to rely upon the judgment of this Court
reported in 1996(1) CTC 470 in the case of K.Jeyaramanuju Vs.
Janakaraj & anr., which held as follows:-
''To prove the offence under Section
294, I.P.C. mere utterance of obscene words are not
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Crl.R.C(MD)No.775 of 2016
sufficient, but there must be a further proof to
establish that it was to the annoyance of others, which
is lacking in this case''.
8. Therefore, the prosecution has failed to prove the charge
under Section 294(b) of IPC. Insofar as the offence under Section 4 of
Tamil Nadu Prohibition of Harassment of Women Act is concerned,
except PW1, no other independent witness was examined by the
prosecution in order to corroborate the evidence of PW1. Admittedly,
petitioner and the victim had relationship. Only at the instance of the
victim's husband, the complaint was lodged. It was also not explained
by the prosecution that the complaint was lodged only on 25.05.2013 for
occurrence which took place on 24.05.2013. PW2 also categorically
deposed that only at the instance of husband of PW1, the complaint was
lodged and she was also standing far away from the place of the alleged
occurrence. Therefore, she also failed to support the case of the
prosecution in order to prove the charges under Section 4 of Tamil Nadu
Prohibition of Harassment of Women Act. In this regard, it is relevant to
extract Sections 2(a) and 4 of Tamil Nadu Prohibition of Harassment of
Women Act, which reads as under:
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Crl.R.C(MD)No.775 of 2016
''Section 2: Definitions: In this Act,
unless the context otherwise requires:-
(a) ''harassment'' means any indecent
conduct or act by a man which causes or is likely
to cause intimidation, fear, shame or
embarrassment, including abusing or causing
hurt or nuisance or assault or use of force.''
''4. Penalty for harassment of woman. -
Whoever commits or participates in or abets
harassment of woman in or within the precincts of
any educational institution, temple or other place
of worship, bus stop, road, railway station,
cinema theater, park, beach, place of festival,
public service vehicle or vessel or any other place
shall be punished with imprisonment for a term
which may extend to three years and with fine
which shall not be less than ten thousand rupees''.
9. It is seen that the petitioner had relationship with PW1.
The complaint itself was lodged only at the instance of her husband.
That apart, no harassment was made by the petitioner in order to cause
intimidation, fear, shame or embarrassment, including abusing or
causing hurt or nuisance or assault or use of force any. Therefore, no
ingredients are available in order to attract the offence under Section
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Crl.R.C(MD)No.775 of 2016
4 of Tamil Nadu Prohibition of Harassment of Women Act. Therefore,
the prosecution had miserably failed to prove that the petitioner is guilty
for the offence under Section 4 of Tamil Nadu Prohibition of
Harassment of Women Act.
10. In view of the above discussions, the conviction and
sentence imposed by the Courts below are hereby set aside for the
offence under Sections 294(b) and Section 4 of Tamil Nadu Prohibition
of Harassment of Women Act.
11. Accordingly, this Criminal Revision Case stands allowed.
06.03.2023
NCC : Yes/No
Index : Yes / No
vsd
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Crl.R.C(MD)No.775 of 2016
G.K.ILANTHIRAIYAN, J.
vsd
To
1.The Judicial Magistrate No.V,
Tirunelveli.
2.The Additional Sessions Judge/
III Additional Sessions Court,
Tirunelveli.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Inspector of Police,
Tirunelveli Town Police Station,
Tirunelveli.
Crl.R.C(MD)No.775 of 2016
06.03.2023
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