The Calcutta High Court has upheld the conviction of a Kolkata man under Section 509 of the IPC for making vulgar sexual remarks and obscene gestures towards a woman, including unzipping his pants and telling her, “Mere ko ek chance do, tumko pregnant kardenge” (Give me a chance, I will make you pregnant).

Justice Uday Kumar dismissed the criminal revision petition filed by Raj Kumar Jaiswal @ Bablu, holding that the evidence of the woman and her husband was trustworthy and that the essential ingredients of Section 509 IPC were established.

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 the petitioner, who was a neighbour of the complainant, in March 2014.

According to the prosecution, on March 10, 2014, Jaiswal allegedly abused and threatened the complainant's husband when the couple returned home from a temple.

The following day, the complainant's husband noticed that their scooty had been damaged and moved from its original parking spot. Jaiswal allegedly also made an abusive phone call to him and later visited the family's business establishment, where he threatened the staff.

The incident forming the basis of the Section 509 charge occurred later that night when the complainant and her husband were returning home.

The prosecution alleged that Jaiswal intercepted them, mocked their childless marriage and called the husband impotent. He then allegedly unzipped his pants and made vulgar gestures before telling the woman, “Mere ko ek chance do, tumko pregnant kardenge.”

A complaint was lodged on March 12, 2014, following which Amherst Street Police Station registered a case under Sections 506, 509 and 114 IPC. The investigation culminated in a chargesheet under Sections 509 and 506 IPC.

The Trial Court, while acquitting Jaiswal under Section 506 IPC, convicted him under Section 509 IPC on December 1, 2021 and sentenced him to six months' simple imprisonment and a fine of ₹5,000.

The Sessions Court dismissed his appeal on January 9, 2023, leading to the present revision before the High Court.

Before the High Court, Jaiswal challenged the concurrent findings, arguing that the testimonies of the complainant and her husband contained material contradictions.

It was also argued that independent witnesses cited in the chargesheet were not examined and that the Investigating Officer had failed to properly investigate several aspects, including the alleged threatening phone call.

The petitioner further contended that there was no established motive for the alleged offence and that the prosecution case suffered from gaps and deficiencies which ought to have resulted in his acquittal.

The complainant, however, argued that her testimony was consistent and was corroborated by her husband, who was present during the incident.

Rejecting the revision, the Court held that the complainant's testimony was sufficient to establish the offence.

The Court referred to the Supreme Court's decisions in Rupan Deol Bajaj v. Kanwar Pal Singh Gill and State of Punjab v. Major Singh, observing that words or gestures capable of shocking a woman's sense of decency can constitute an act of outraging her modesty.

“The language and physical manifestation exhibited by the petitioner require no complex psychological dissection to deduce intent,” the Court observed.

It held that the surrounding circumstances and the explicit nature of Jaiswal's conduct established the ingredients of Section 509 IPC.

The Court also rejected the argument that the complainant's evidence could not be relied upon because she and her husband were interested witnesses.

It observed that minor discrepancies concerning collateral details did not undermine the core of a consistent and trustworthy account.

On the alleged investigation lapses, the Court said that deficiencies such as the failure to prepare a formal site plan, exhibit General Diary entries or examine certain independent witnesses were not sufficient to discard otherwise credible ocular evidence.

“A criminal trial is not a game of errors played between the prosecution and the defence,” the Court said, adding that faulty investigation could not by itself justify an acquittal where the victim's evidence was “sterling, credible, and trustworthy.”

The Court further held that absence of a proven prior motive was not fatal to the prosecution case. In offences involving sudden verbal harassment or affronts to modesty, it said, criminal intent could be inferred from the immediate acts, conduct and surrounding circumstances.

On the scope of its revisional jurisdiction, the Court reiterated that it does not ordinarily act as a second appellate court to re-appreciate evidence unless concurrent findings are shown to be perverse, arbitrary or based on no evidence.

Finding no such infirmity, Justice Uday Kumar dismissed the plea.

Jaiswal was directed to surrender before the Trial Court within four weeks to serve the remainder of his sentence, failing which coercive steps would be taken in accordance with law.

Case No: CRR 257 OF 2023

Case: RAJ KUMAR JAISWAL -VS- STATE OF WEST BENGAL AND ANR.