The central legal point established in the judgment is the interpretation of the offence under Section 509 IPC, emphasizing the intention to insult the modesty of a woman and the act of intruding upon her privacy as key elements of the offence.

S.K. Kar, J.

1. This petition presented by Smti. Swapna Berman, informant/ petitioner against Subir Das, accused/respondent has assailed judgment and order dated 19.4.1997 passed by Sessions Judge, Bongaigaon, in Criminal Appeal No. 16(3)/96 acquitting the accused/respondent reversing the judgment of conviction under Section 509 of IPC and sentence passed by CJM, Bongaigaon, on 16.8.1996 in Case No. G.R. 1143/86. The respondent was sentenced to fine of Rs. 1000 and default of payment of fine to suffer S.I. for one month.

2. Facts of the case, in brief, are as follows :

It is alleged that at about 11.30 p.m. (during night hours) the respondent/accused Subir Das started calling petitioner's names. That from few days back conjuncting her name with his name around midnight respondent/accused used to cry aloud and on that night also he entered upon verandah of house of the petitioner/informant (hereinafter to be referred as petitioner only) and called out her names but on appearance of the neighbouring people he left the place.

3. The written FIR being lodged (as per official endorsement) at about 1 a.m. (early hours) on 25.9.1986, the Bijni Police Station, which is situated only about 1 Km north west, registered case No. 176/86 under Sections 448/509 IPC and started preliminary investigation through A.S.I. Shri Numal Ch. Das and in due course Charge-sheet No. 120 dated 30.9.1986 was submitted against the respondent for standing his trial under Sections 448/509 of IPC.

4. Trial began against the respondent on his appearance before the court after explaining the particulars of offence under Section 448/509 when the respondent pleaded not guilty to the charges.

5. Prosecution examined five witnesses to prove the charges. Defence examined none.

6. Defence plea is that respondent has political allegiance with Congress party. The husband of the informant Dhiresh Barman on the other hand was member of another political party. Dhiresh Barman gave a 'bandh' call on the death of Kalipana Sen and in the evening of the 'bandh' day there was a confrontation between respondent on a one side and the informant and her husband on the other side resulting in assault upon the respondent. Respondent filed a case against the petitioner and in order to take vengeance/revenge the present case was instituted falsely.

7. There was no admission of any fact in so far the accusation made. Point for determination as recorded by learned court below were as follows:

"(1) Whether, the accd. Subir Das on 24.9.86 at about 11.30 p.m. at Bhetagaon No. 2 committed house trespass by entering into the dwelling house of informant Smti. Swapna Barman with intent to insult her modesty, as alleged.

(2) Whether, the accd. Subir Das on the same date, time and place, intending to insult the modesty of informant Smti. Swapna Barman, uttered the indecent words or made sounds as"

"Swapna Tumi Sukhe Thako, you will not be happy with your husband Dhirej Barman," "I am your husband" etc. etc. intending that such words or sounds be heard by said Swapna Barman and thereby he committed an offence punishable under Section 509 IPC, as alleged."

Learned trial court found no elements of house-trespass to substantiate charge under Section 448IPC and held that the second charge under Section 509 IPC has been established on facts and passed the order and judgment aforesaid.

8. On appeal learned Single Judge did not agree with the trial court and reversed the findings on the ground that firstly, there is no uniform evidence regarding actual word (s) used by the respondent/accused and secondly, the presence of the respondent in the house of the informant was not proved in order to suggest inference that the respondent uttered words intended to insult or outrage modesty. I find offence under Section 509 has the following ingredients :

"1. Intention to insult the modesty of a women. 2. The insult must be caused :

(i) by uttering any words, or making any sound or gesture, or exhibiting any object intend