T.H. Daruwala. JUDGMENT - BHOLE, J.:---This is a case in which two women are fighting over one man. Accused Miss Mani Karkaria met Dr. Mirza husband of the respondent-orig. complainant first when he was studying in the final year in Nair Hospital Dental College in 1954. He married the complainant, a German woman after he went overseas for his studies. The complainant alleges that on 13-4-1972 and 18-4-1972 the accused came to the clinic of Dr. Mirza at about 7 p.m. on Warden Road and called her "bloody bitch" and also called "Nazi bitch, prostitute" and intentionally insulted here and gave her provocation intending or knowing it to be likely that such provocation would cause her to break public peace. The complainant, therefore, charged the accused with the offence punishable under section 504 I.P.C. 2. The complainant and her husband reside at Sataiwad Road of Napean Sea Road and her husband has a dental clinic on Warden Road opposite to Beach Candy Hospital. Dr. Mirza having met the accused in his final year in Dental College, where she was a nurse and having started his clinic after returning from the States in September, 1962 engaged the accused as an assistant-cum-nurse. It is because the accused started becoming rude to Dr. Mirza and also to his patients and because she started disobeying him and insulting him in the presence of his patients of his own wife, he terminated her services on 1-3-1972. The complainants charge is that after termination of her service the accused started harassing campaign against her as well as Dr. Mirza and their children by often telephoning them and by other acts near their house as well as near their clinic. She is alleged to have been telephoning them and giving them filthy abuses. She was telephoning not only at their house but also at the office of the complaint at the German Consulate General. The complainant also charges her of following her as well as her husband on innumerable occasions whenever they went to parties or pictures and using abusive language after overtaking them in taxis. The accused also is said to be loitering in the compound of their residence, with a view to spy on their movements. She was warned on several occasions not to do this but she persisted in harassing them. 3. The accused also is said to be loitering in the compound of their residence, with a view to spy on their movements. She was warned on several occasions not to do this but she persisted in harassing them. 3. The complainants charges against the accused in so far as the events, which took place on 17th and 18th of April, 1972 are these : The complainant in the absence of the accused was helping her husband at the clinic and it is her case that when they were closing their clinic, the accused came there in a taxi and started barging the window panes of the clinic and shouting in an obscene manner. She was also giving her filthy abuses like "you bloody bitch, you swine, come out of the clinic." She is also alleged to have said "I will see to it, how anybody ever works there". These acts attracted several passers by and also the watchman there. Her husband also had to send away his patients due to all this disturbance near his clinic. The complainant says that she did not reply to the actions of the accused but just walked towards their car, which was parked and went away; but the accused is alleged to have followed her in a taxi with another male companion shouting and screaming in a filthy manner and overtaking their car. The accused is alleged to have followed them with the same actions on the next day i.e. 18th and using some dirty words. According to the complainant, the accused was doing all this is order to be smear her husbands reputation and to make him suffer in his business. She says that she had complained on three occasions to the Commissioner of Police to take proper steps against the accused, but was informed that since the offence was of non-cognizable nature, she herself will have to go to the Court. 4. The accused has denied having committed the offence but at one time admitted that she had gone on 17-4-1972 for the purpose of asking for her articles such as her clothes, and other things, which were lying in the clinic of Dr. Mirza. She has also examined defence witnesses to show that Dr. Mirza had been to her house on 17-4-1972 in the morning and had made a scene and had beaten her there. Mirza. She has also examined defence witnesses to show that Dr. Mirza had been to her house on 17-4-1972 in the morning and had made a scene and had beaten her there. She has examined a watchman by name Syed Hdyer Ali, who says that the accused was physically thrown out of the clinic and that she did not come afterwards. She has also examined Sub-Inspector Gaud and Sub-Inspector Sawant. It appears that after the complaint was filed by the complainant in the Court of the Presidency Magistrate, he referred it to the Police for inquiry and after he got a report from the Police, he framed a charge only with respect to the offence alleged to have been committed by the accused on 17-4-1972 and 18-4-1972. Sub-inspector Gaud appears to have made this enquiry on a reference by the Magistrate. 5. The learned Magistrate was satisfied with the evidence of the complainant and her husband and therefore found the accused guilty of the offence punishable under section 504 I.P.C. and convicted her of the said offence and sentenced her to pay a fine of Rs. 300/-. This order of conviction and sentence is, therefore, now challenged here by the accused. 6. This is a case, as I said earlier, of two women fighting with each other because of the circumstances in which they found themselves. There is enough record to show that Dr. Mirza was on intimate terms with the accused from as early as 1954 when he first met her in his final year of Dental College. After he returned from the States and started his clinic, he even engaged her as his assistant. Even after his marriage with the complainant he appears to have been on intimate terms with the accused because there are some letters, which are placed on record by the accused and which appears to have been written by Dr. Mirza and which show their intimate relationship. Dr. Mirza used even to go into the accuseds flat until her services were terminated and sometimes even was having lunch with her. He had even given her an air-conditioner which is used by her. The accused was ill and the medical bill of the Beach Candy Hospital was borne by Dr. Mirza. There appears to be some shares worth about Rs. 5000/- in the joint names of Dr. Mirza and the accused. He had even given her an air-conditioner which is used by her. The accused was ill and the medical bill of the Beach Candy Hospital was borne by Dr. Mirza. There appears to be some shares worth about Rs. 5000/- in the joint names of Dr. Mirza and the accused. All this therefore clearly shows how intimate Dr. Mirza was with the accused until her services were terminated on first of March 1972. The complainant naturally must be jealous of this relationship and the accused also must be jealous of the complainant over the latter marrying Dr. Mirza and therefore one must be vying with the other to teach a lesson to the other. We have, therefore, to examine the evidence of the complainant and her husband in this background. 7. The complainant has examined herself and her husband for the purpose of bringing home the guilt against the accused. Although her case is that the accused had come to Dr. Mirzas clinic on 17th and 18th April, 1972 when there were other patients and when there were passers by and when there were also servants in a clinic and the watchman outside, none were examined by them. We have, therefore, to be very cautious while scrutinizing the evidence of the two witnesses against the accused. The complaint given by the complainant appears to be omnibus. After the inquiry by the Police on a reference by the learned Magistrate, the Police found only two incidents worthwhile to be inquired into and those incidents are on 17th and 18th April, 1972. We will, therefore, have to scrutinize the evidence led by the complainant on the incidents of these two dates. The first and the important infirmity, in my view, in the case of the complainant is that Dr. Mirza never even whispered anything on the incidents which are alleged to have taken place on 17-4-1972 and 18-4-1972 in his statement before the police, when the Police were making inquiries on a reference by the learned Magistrate. Sub-Inspector Gaud says that Dr. Mirza never referred to the incident either of 17-4-1972 or of 18-4-1972 in his statement to him. There are applications of Dr. Mirza on record made to the police. Sub-Inspector Gaud says that Dr. Mirza never referred to the incident either of 17-4-1972 or of 18-4-1972 in his statement to him. There are applications of Dr. Mirza on record made to the police. One is dated 16th of June, 1972 and the other is dated 18th of June, 1972 but there is no mention in his applications to the deputy Commissioner of Police about the incidents of these dates. The point, therefore, in the background of these infirmities is whether these two witnesses, whose evidence can rightly be said to be tainted, are telling the truth when they relate the details of the incidents. In so far as the version in the complainants complaint is concerned, she says that when they were closing their clinic on 17th of April, 1972, the accused stopped her taxi near the door of the clinic and started banging the window panes of the clinic and also started suing dirty and filthy language like "you bitch, you swine, come out of the clinic; I will see to it how anybody ever works there." This is the filthy language which the accused is alleged to have used on 17th April, 1972. The complainant also says that similar words were used again on 18th in the evening. She, however, gives an improved version in her evidence in Court and says that the accused said "bloody bitch, you are working there". The accused also called her "prostitute" and "Nazi Swine". Therefore the complainant appears to have added and improved her version in her complaint by putting in the mouth of the accused the words "Bloody", "prostitute" and "Nazi swine". The point, therefore, is whether what she states about the language the accused used is true or is not true. Dr. Mirza, as said earlier, did not talk to Police anything about the incident on 17th or of 18th, but during the course of his evidence says that the accused screamed the words which are given by his wife in the Court. Can we in the absence of any of his statements to be Police in a similar way believe him? Admittedly there were then patients and also passers by and also a watchman astound. The complainant did not choose to examine any of these independent witnesses. There is therefore no corroboration to the evidence of these two interested and tainted witnesses by any independent witness. 8. Admittedly there were then patients and also passers by and also a watchman astound. The complainant did not choose to examine any of these independent witnesses. There is therefore no corroboration to the evidence of these two interested and tainted witnesses by any independent witness. 8. On the other hand the accused has examined Dara Mehta who is a common friend of both Dr. Mirza and the accused and he says that on 17-4-1972 at 8.30 a.m. when he had gone to the house of the a accused the complainant came there is an angry mood and started asking the accused about the tampered lock of his clinic. The accused denied the allegation and asked the witness to tell Mirza to make inquiries with the watchman. Dr. Mirza asked him to shut up, Dr. Mirza started abusing the accused and after rushing in the bed room of the accused and plugging out her telephone and bringing it in the sitting room and plugging it again started making telephone calls to the Police Officer, who appeared to be their family friend. The accused intervened but it was no use. Dr. Mirza according to Dara Mehta even beat the accused with a walking stick there and gave a blow. The accused started weeping when the witness intervened but Dr. Mirza did not listen to him. Dr. Mirza also admits having gone to the house of the accused in the morning but says that he did not attach the accused as alleged by witness Dara. It is because of this incident with Dr. Mirza that Dara Mehta as well as the accused went to the Police Station on that evening at about 6.30 and reported to them about the attack by Dr. Mirza. Sub-Inspector Sawant, who was then on station house duty says that at 7.10 p.m. witness Dara Mehta filed his complaint against the accused about the threats and abuses to him. The accused also filed a complaint to him at 7.20 p.m. against Dr. Mirza. Evidently, therefore, both Dara Mehta and the accused were there at the Police Station. 9. Now the complaint of the complainant is that the accused came to the clinic in a taxi at about 7 p.m. and started banging the clinics window and abusing her filthily. The accused also filed a complaint to him at 7.20 p.m. against Dr. Mirza. Evidently, therefore, both Dara Mehta and the accused were there at the Police Station. 9. Now the complaint of the complainant is that the accused came to the clinic in a taxi at about 7 p.m. and started banging the clinics window and abusing her filthily. Although the accused at first admitted having gone there for demanding her own articles, which were admittedly left in the clinic later denied having gone there in her written statements. In view of the circumstance that she was there at the Police Station on at 7.20 p.m. the first conclusion would be that she could not have come to the clinic by 7 p.m.; the second conclusion would also be that she might have come there at about 7.30 p.m. in an exasperated mood because Dr. Mirza had gone to her and assaulted her in the morning. It means therefore that she went to the clinic after her complaint to Police. Even if she is said to have come to the clinic, can she be said to have uttered the insulting and abusive words "prostitute or Nazi bitch?" These two orders appear to have been added alter by both Dr. Mirza as well as by the complainant for the purpose of showing that they both felt insulted because of these abuses. I have mentioned above that the evidence of these two witnesses is tainted. They seem to be bent upon teaching some lesson to the accused. We also see that they are improving their own version on the ingredients of the offence under section 504 I.P.C. In the absence therefore, of any other corroboration by the independent witnesses, which they could have got, it would be difficult to rely entirely on their tainted evidence. This would be specially so because Dr. Mirza did not refer to the incidents of 17-4-1972 and 18-4-1972 in his statement before the Police during the inquiry on a reference by the learned Magistrate for inquiry into the complainants complaint. There is also no mention of these incidents in Dr. Mirzas applications to the Police. The complainant and Dr. Mirza says that several non-cognizable complaints were filed against the accused for coming to their house and abusing them but not a single non-cognizable complaint recorded with the Police is produced by them. There is also no mention of these incidents in Dr. Mirzas applications to the Police. The complainant and Dr. Mirza says that several non-cognizable complaints were filed against the accused for coming to their house and abusing them but not a single non-cognizable complaint recorded with the Police is produced by them. Having regard to all these circumstances, therefore, it would be difficult for one to treat the evidence of both Dr. Mirza as well as his wife satisfactory. 10. It is further the complaint of the complainant as well as Dr. Mirza that the accused was harassing her by continuously telephoning them and abusing them as well as their servant. This appears to be only after the accused was removed from their service on 1-3-1972. Although Dr. Mirza says that the complainant complained about this to the telephone authority, the complaint, if any, is not brought on record. On the other hand we have the evidence of Dr. Mirza who has stated that his wife was asking him as to who the person was, who was behaving in this way on phone. Evidently, therefore, they could not identify which person was harassing them on phone. 11. Mr. Shenoi, the learned Assistant Government. Pleader invited my attention to (State v. Kurbanali another)1, A.I.R. 1956 Bom. 239 (Dadia v. Premkumar)2, 2 Guj.L.R. 196 (K.D. Upadhayaya v. Bhagbati)3, A.I.R. 1964 Tri. 69 to show that the intention of the accused in using filthy language towards them was to provoke the complainant to come outside and break the public peace. The Bombay case referred to above involves as persions on chastity of the complainants mother and sister according to Bavdekar, J. such abuses fall within the ambit of section 504 I.P.C. But as stated earlier the evidence of not only Dr. Mirza but also of his wife, complainant, suffers from infirmities. They had a number of independent witnesses but did not examine any. They also improved the nature of abuses. Evidently, therefore, their evidence cannot be said to be entirely satisfactory. On the other hand the accused had examined the watchman Sayyed Hdyer Alli who says that the accused did not visit the clinic at all and his word goes unchallenged. They had a number of independent witnesses but did not examine any. They also improved the nature of abuses. Evidently, therefore, their evidence cannot be said to be entirely satisfactory. On the other hand the accused had examined the watchman Sayyed Hdyer Alli who says that the accused did not visit the clinic at all and his word goes unchallenged. Dara Mehta also says on behalf of the defence that Doctor Mirza visited the room of the accused on 17-4-1972, as a result of which he had to go to the Police Station and he was there till 7.20 p.m. whereas Dr. Mirza says that she had visited her clinic at 7 p.m. All this evidence, therefore, clearly goes to create a reasonable doubt nones mind as to the truth of the story as given out by the complainant. In this view, therefore, I think the learned Magistrate was in error when he convicted and sentenced the accused. 12. I, therefore, allow the appeal filed by the appellant-orig. accused, and set aside the order of conviction and sentence passed against her by the learned Magistrate and acquit her of the charge under section 504 I.P.C. Fine, if paid, shall be refunded. -----