Background
The Calcutta High Court has upheld the conviction of a Kolkata man under Section 509 of the Indian Penal Code (IPC) for making vulgar sexual remarks and obscene gestures towards a woman.
Justice Uday Kumar dismissed the criminal revision petition filed by Raj Kumar Jaiswal @ Bablu and upheld his conviction for conduct that included allegedly unzipping his pants, making vulgar gestures and telling the woman, “Mere ko ek chance do, tumko pregnant kardenge” (Give me a chance, I will make you pregnant).
The Court also directed Jaiswal to surrender before the Trial Court within four weeks to serve the remainder of his six-month sentence.
The case arose from incidents involving Jaiswal, who was a neighbour of the complainant, in March 2014. The prosecution alleged that he had earlier abused and threatened the complainant’s husband and later confronted the couple while they were returning home.
According to the prosecution, Jaiswal mocked the couple over their childless marriage, called the husband impotent and then made sexually explicit gestures towards the woman.
An FIR was registered at Amherst Street Police Station under Sections 506, 509 and 114 IPC. The Trial Court subsequently convicted Jaiswal under Section 509 IPC while acquitting him of the charge under Section 506 IPC.
The Trial Court sentenced him to six months’ simple imprisonment and imposed a fine of ₹5,000. His appeal was dismissed by the Sessions Court on January 9, 2023.
Legal Issue
The main issue before the High Court was whether the prosecution had established the ingredients of Section 509 IPC, which deals with words, gestures or acts intended to insult the modesty of a woman.
Jaiswal challenged the concurrent findings of the Trial Court and Sessions Court. He argued that the evidence of the complainant and her husband contained contradictions and that independent witnesses named in the chargesheet had not been examined.
He also relied on alleged investigation deficiencies, including the failure to properly investigate the threatening phone call and other incidents preceding the alleged Section 509 offence.
The petitioner further argued that the prosecution had failed to establish any motive for the alleged conduct and that these deficiencies created reasonable doubt.
The Court therefore had to consider whether the complainant’s testimony, supported by her husband’s evidence, was sufficient to sustain the conviction despite the alleged contradictions and investigation lapses.
Court Ruling
The High Court rejected the revision petition and held that the evidence of the complainant was sufficient to establish the offence under Section 509 IPC.
The Court relied on the Supreme Court’s decisions in Rupan Deol Bajaj v. Kanwar Pal Singh Gill and State of Punjab v. Major Singh while examining conduct capable of offending a woman’s sense of decency.
The Court found that the explicit sexual remarks, physical gestures and surrounding circumstances clearly established the nature of the accused’s conduct. It observed that the language and physical manifestation displayed by the petitioner required no complex analysis to infer the requisite intent.
The High Court also rejected the argument that the complainant’s testimony could not be relied upon because she and her husband were interested witnesses.
The Court held that minor discrepancies concerning collateral details did not undermine the core of an otherwise consistent and trustworthy account. The complainant’s evidence was also corroborated by her husband, who was present during the incident.
The Court further held that the prosecution’s failure to examine certain independent witnesses was not sufficient to discard credible ocular evidence. Similarly, alleged investigation lapses, such as the absence of a formal site plan or failure to exhibit certain General Diary entries, did not by themselves create grounds for acquittal.
The Court observed that “a criminal trial is not a game of errors played between the prosecution and the defence”, holding that an imperfect investigation could not automatically benefit an accused where the victim’s evidence was reliable and trustworthy.
The Court also rejected the argument that the prosecution had failed to establish a prior motive. It held that in cases involving sudden verbal harassment or conduct offending a woman’s modesty, criminal intent can be inferred from the acts, words and surrounding circumstances.
On the scope of its revisional jurisdiction, the High Court reiterated that it does not ordinarily function as a second appellate court for reappreciating evidence. Interference with concurrent findings is warranted only where such findings are perverse, arbitrary or unsupported by evidence.
Finding no such infirmity, Justice Uday Kumar dismissed the revision petition.
Jaiswal was directed to surrender before the Trial Court within four weeks to serve the remainder of his sentence. The Court further directed that coercive steps could be taken in accordance with law if he failed to surrender.
Implications
The judgment highlights that sexual harassment through words and gestures can attract criminal liability even where the conduct does not involve physical assault.
Section 509 IPC covers words, sounds, gestures or acts intended to insult the modesty of a woman. The Court’s reasoning emphasises that the nature of the words and conduct, along with the surrounding circumstances, can be relevant in determining the requisite intent.
The judgment also reinforces the principle that a victim’s testimony does not become unreliable merely because the victim is an interested witness. Courts can rely on such testimony when it is consistent, credible and supported by the surrounding evidence.
The ruling further clarifies that investigation deficiencies do not automatically result in acquittal. Where substantive evidence is credible, courts may distinguish between defects in investigation and actual failure to prove the offence.
The judgment adds clarity on the application of Section 509 IPC to explicit sexual remarks and obscene conduct directed at a woman.
Case: Raj Kumar Jaiswal v. State of West Bengal & Anr.
