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2000 DIGILAW 372 (AP)

SIRAJUDDIN ALI v. MUJTABA ALI

2000-06-07

T.CH.SURYA RAO

body2000
T. SURYA RAO, J. ( 1 ) THIS is an appeal against acquittal. The appellant herein filed a complaint under Section 500 IPC against the 1 st respondent herein alleging inter alia that during the course of examination in chief in Rent Control Case No. 405 of 1989 on 21-11-1990 at about 12. 15 p. m. , when an adjournment was sought by his Counsel at his instance 1st respondent herein uttered the word "badmash" and when the appellant and his Counsel had taken exception to it, he repeated the word again. The appellant therefore filed a written compliant before the Court which was taken on file after recording the sworn statement of the complainant. During the course of the trial three witnesses were examined on the side of the complainant including that of the complainant as PW1 and his senior Counsel and junior Counsel as PWs. 2 and 3 respectively. After having appreciated the evidence of PWs. 1 to 3 the trial Court acquitted the accused-1st respondent of the alleged offence under Section 500 IPC on the premise that the appellant having cited the Rent Controller and the bench clerk as witnesses to the incident in the complaint petition, failed to examine them, and therefore, there was no independent testimony except the interested testimony of pws. 2 and 3 who are the senior and junior counsel of the complainant. Being aggrieved by the aforesaid judgment, the appellant filed this present appeal. ( 2 ) IT may be mentioned at the out set that the way in which the oral evidence of pws. l to 3 was appreciated by the trial court is not correct. Time and again it has been made clear by the Courts that it is not the quantity that is the criterion but the quality. All the witnesses who have been cited as eye-witnesses direct to the occurrence need not be examined. The prosecution will be at liberty to examine its own witnesses necessary to unfold its version. To say that PWs. 2 and 3 are interested witnesses, the Court below should have given cogent reasons, to dub them as interested witnesses. ( 3 ) BE that as it may, let us critically examine the nature of the offence alleged. The prosecution will be at liberty to examine its own witnesses necessary to unfold its version. To say that PWs. 2 and 3 are interested witnesses, the Court below should have given cogent reasons, to dub them as interested witnesses. ( 3 ) BE that as it may, let us critically examine the nature of the offence alleged. The only allegation levelled by the 1st respondent herein is that he uttered the word "badmash" in the open Court, and according to the complainant it amounts to an offence of defamation. Per se, the words assuming for a moment are proved to have been uttered in the open Court, will not come within the scope of Explanation 4 of section 499 IPC. For brevity and better understanding, it is expedient to extract the explanation 4 of Section 499 IPC which reads as under:"section 499. . . . . Explanation 4:no imputation is said to harm a person s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. " ( 4 ) A mere glance at the above provision it discloses that if an imputation is made intending to harm a person s reputation then the offence under Section 499 IPC is said to have been made out. Explanation 4 to Section 499 of IPC is very much germane for consideration. Imputation must be such, that it should cause harm to a person s reputation. It should be either directly or indirectly in the estimation of others, lower the moral or intellectual character of that person, or lower the character of that person in respect of his caste or of his calling, or lower the credit of that person, or cause it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. ( 5 ) HAVING regard to the back drop of the litigation between the parties the 1 st respondent inter se even assuming that the 1st respondent uttered the word "badmash" the necessary intention cannot be gathered in this case so as to bring home the guilt of the accused-1st respondent. Perhaps the words have been articulated so as to cause harm to the person, and in which as it might amount to an offence defined in the IPC but certainly not under Section 499 of IPC when we read the section coupled with explanation 4, it cannot be said that the offence alleged comes squerely within the views of the said section, but it may come within the definition of section 504 IPC. I derive force for the above view from the decision rendered by the Lahore High Court in Bukhtawar Lal v. Emperor, AIR 1922 Lah 459, wherein it was held as follows :"the offence of calling a man beiman and badmash would fall under section 504 and not under Section 500. " ( 6 ) IN that view of the matter, the offence under Section 500 IPC is not made out and therefore the acquittal cannot be assailed. In the result, the appeal fails and it is accordingly dismissed.