The revision petitioner challenges the legality and propriety of the conviction and sentence against him under Section 294(b) Cr.P.C. The crime against him was initially registered under Sections 341, 323, 353 and 294(b) IPC, on the allegation that at about 1.55 pm on 17.6.1998 the revision petitioner wrongfully restrained the defacto complainant, who is a KSRTC driver, in connection with some dispute regarding running time, used abusive words against him in public place, and assaulted him. After investigation, the police submitted final report in the court of the learned Judicial First Class Magistrate, Chittoor under Sections 341, 323, 353 and 294(b) IPC. The revision petitioner pleaded not guilty in the trial court when the particulars of offences were read over and explained by the learned Magistrate, and claimed to be tried. During trial, the prosecution examined six witnesses including the defacto complainant, and also marked Exts.P1 to P4. No evidence was adduced by the revision petitioner in defence. On an appreciation of the evidence adduced by the prosecution, the learned Magistrate found the revision petitioner guilty under Sections 341, 294(b) and 353 IPC. As regards the offence under Section 323 IPC, the accused was acquitted by the learned Magistrate. On conviction he was sentenced to undergo rigorous imprisonment for 15 days under Section 341 IPC, rigorous imprisonment for one month under Section 294(b) IPC and rigorous imprisonment for a period of one year under Section 353 IPC, by judgment dated 22.2.2001 in S.T.No.3810/1998.
2. Aggrieved by the conviction and sentence the revision petitioner approached the Court of Session, Palakkad with Crl.A No.105/2001. In appeal the learned II Additional Sessions Judge, Palakkad found the revision petitioner not guilty under Sections 341 and 353 IPC, and accordingly acquitted him. The conviction and sentence under Section 294(b) IPC was confirmed in appeal.
3. The very short point for decision in this revision is whether the words alleged to have been used by the revision petitioner will constitute obscenity as defined under the law.
The abusive words alleged to have been used by the revision petitioner herein are “പ;iലയ"ട$ മ'"ന) ...............” Of course as regards wrongful restraint and assault the two courts below found the revision petitioner not guilty, and he stands acquitted. As regards the above words alleged to have been used by the petitioner both the courts below found that it is obscene. Of course it stands proved by the evidence of PW1 that the revision petitioner had in fact used such words in the alleged incident. So, much discussion is not required on that aspect. The question for decision in revision is whether those words will amount to obscenity as defined under the law. If the finding is that such words will not amount to obscenity, the revision petitioner will have to be acquitted.
4. Sub Section (1) of Section 292 IPC provides that for the purposes of sub Section (2), dealing with punishment and sentence for obscenity, “a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious, or appeals to the prurient interest, or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” Thus sub Section 1 to Section 292 IPC gives a clear idea as to what is meant by obscenity under the law, punishable under Sections 294(2), 293 and 294 IPC.
5. Abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the law. Of course there is no doubt that the words alleged to have been used by the revision petitioner are in fact abusive and humiliating. But to make it obscene, punishable under Section 294(b) IPC, it must satisfy the definition of obscenity. Section 294 IPC does not define obscenity. Being a continuation of the subject dealt with under Section 292 IPC the definition of obscenity under 292(1) IPC can be applied in a prosecution under Section 294 IPC also. To make punishable, the alleged words must be in a sense lascivious, or it must appeal to the prurient interest, or will deprave and corrupt persons. In P.T Chacko V. Nainan Chacko reported in (1967 KLT 799) this Court held that, “ the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.” In Sangeetha Lakshmana V. State of Kerala reported in (2008(2) KLT 745) this Court held thus, “in order to satisfy the test of obscenity, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of its hearers.” Thus it is quite clear that, to make obscene the alleged words must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires. I find that the words alleged to have been used by the revision petitioner in this case are really abusive and humiliating, but those words cannot be said to be obscene. As already stated, every abusive word or every humiliating word cannot, by itself, be said to be obscene as defined under the Indian Penal Code. I find that the conviction against the revision petitioner under Section 294 (b)IPC in this case, on the basis of the above words alleged to have been used by him, is liable to be set aside, and the revision petitioner is entitled to be acquitted.
In the result, this revision petition is allowed. The conviction and sentence against the revision petitioner under Section 294(b) IPC in S.T. No.3810/1998 of the Judicial First Class Magistrate Court, Chittur are set aside, on the finding in revision that the revision petitioner is not guilty of the offence punishable under Section 294(b) IPC. The revision petitioner will stand released from prosecution on acquittal, and the bail bond executed by him will stand discharged.
P.UBAID JUDGE ab