1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION(MAIN) NO. 8 OF 2008 Mr. Tony Rebello 47 years, service, Resident of House No.724, Biunsa Cuncolim, Goa. ... Applicant versus 1. State of Goa Through the Public Prosecutor, With his office at Panaji, Goa. 2. Mr. Clifton Rebello 50 years, Government Servant Assistant Director of Directorate Of Revenue Intelligence Goa Regional Unit, Panaji Goa. 3. Shri Herman Almeida Son of late Urbano Almeida House No.120, Banda, Assolna, Salcete-Goa. 4. Mrs. Trudy Almeida w/o Dr. Francis Almeida r/o XZ Apna Bazar 4th floor, Above Tato Restaurant, V. V. Road, Margao, Goa. ... Respondents Mr. V. P. Thali, Advocate for the Applicant. Mr. J. Vaz, Advocate for Respondent No.2. 2 CORAM : N. A. BRITTO, J. DATE : 25TH AUGUST, 2008. ORAL JUDGMENT This petition filed under Section 482 of the Code of Criminal Procedure, 1973(Code, for short) is directed against Judgment dated 5-11-2007 of the learned Sessions Judge, Margao by which the learned Sessions Judge has upheld the Order dated 6-12-2006 of the learned Magistrate issuing process against the Petitioner and his brother, the Respondent N.2 herein, under Sections 341, 323, 504 r/w 34 I.P.C. in C. C. No.300/S/2006. 2. The petitioner and respondent no.2 are brothers. It appears that upon a complaint filed by Mrs. Trudy Almeida(Respondent No.4) against Herman Almeida(Respondent No. 3) Cuncolim Police Station has filed a charge-sheet, registered under No.309/S/2006. 3. It also appears that on 8-5-2006 there was a ceremony(ross) in connection with the wedding of the daughter of Lia D'Sa, the aunty of the said Trudy Almeida which was over at about 22.30 hours. She filed the complaint with the allegation that at about 22.50 hours the ceremony was over and people were leaving for their houses and at that time Clifton Rebello was assisting their uncle Augusto to get into the jeep No. GA-01-G-1223 when Herman Almeida came with his car and started arguing and abusing with the said Clifton saying he should 3 put off the jeep lights and thereafter the said Herman who was drunk was taken to his residence but he returned at about 22.50 hours with a knife and had entered the house of her aunty Lia D'Sa stating that he was going to assault everybody and when she obstructed him, he pushed her and gave a fist blow on her right eye and he also pushed one Mrs. Shalate Viegas and during the scuffle injuries were caused to the said Lia D'Sa with the knife and thereafter Herman Almeida(informant in C.C. No.300/S/2006) fled on his motor-cycle. It was further alleged that the said Herman Almeida had criminally trespassed into the compound of the said Lia D'Sa armed with a knife and assaulted her with fist blow and assaulted Lia D'Sa with knife and had abused them in most filthy words. This complaint was lodged at about 1.30 hours on 9-5-2006. 4. The complaint of the said Herman Almeida came to be lodged on the same day but at about 12.45 hours and as already stated it has been lodged against the petitioner and respondent no.2 with the allegation that on 8-5-2006 he along with his wife Pramila Almeida had gone to Cutbona in his car bearing No.GA-02- J-4104 at his relative's place and while they were at Cutbona he received a phone call from his brother-in-law by name Filon Vaz that his wife was admitted to Lawande Hospital at Margao for delivery and accordingly he along with his wife left Cutbona at 23.15 hours and while they were proceeding to Margao via Murida at around 23.30 hours he saw some vehicles parked on both the sides of the road and out of these there was a Gypsy No. GA-01-G-1323 which was in motion and facing towards him with full head lights and the said Gypsy was in the middle of 4 the road. It was further alleged that he had no chance to cross the road and hence he had asked the driver of the Gypsy to take the vehicle to the side and to put off the head light. However, the said driver placed the vehicle in the middle of the road and restrained him from proceeding ahead and on questioning the said driver i.e. respondent no.2 herein, he started arguing with him that he will not remove his vehicle from the spot as there was some function and further abused him and his wife with filthy words. Meanwhile one Tony Rebello(the petitioner herein) joined the said Clifton and he too without any reason started arguing with him and his wife and on seeing their act he stopped his car and went near them and informed them about their difficulty but the said Tony Rebello assaulted him with fist blow on his left eye and meanwhile the people attending the function came to the spot and they tried to allow him to go from the spot with the vehicle and accordingly he went along with his wife in a car to his work. As regards the delay, in lodging the F.I.R. the said Herman Almeida stated that on 8-5-2006 in the night he was in Lawande's Hospital at Margao and as such had not reported the matter to the Police. 5. Admittedly, as regards the incident of 8-5-2006 which took place at about 22.30 hours there are F.I.Rs. lodged and both investigated by the Police. Apparently, Sunita Viegas, Lia D'Sa, August Moraes and Dr. Francis Almeida are witnesses who are found in both the cases and these witnesses have not supported the complaint of the said Herman Almeida. 5 6. Mr. V. P. Thali, the learned Counsel on behalf of the petitioner/A-2 submits that even if the version of Herman Almeida given in the said complaint is accepted on its face value then the same would be insufficient to support the order issuing process against the accused. Learned Counsel further submits that the said Herman Almeida has not reproduced the abuses given by the accused and therefore has submitted that no charge under Section 504 I.P.C. could be framed and in this context learned Counsel has placed reliance on the cases of Madhavrao Gajanan Deshpande v. State of Maharashtra(2003(4) Mh.L.J. 101) and Virendrabhai M. Chandalia and another v. Mohan Kanayalal Parweani and another(2003(4) Mh.L.J. 335) wherein it is stated that for spelling out an offence under Section 504 exact words alleged to have been uttered are required to be mentioned in the complaint. Learned Counsel has also placed reliance on the case of B. R. Meena v. Mangal Das Chiman Lal Barot and another(1987(Supp) SCC 597) wherein the Apex Court has, inter alia, stated that mere utterance of abusive words without more does not constitute an offence under the section. The Apex Court has also stated that the essential requirements are that the accused must intentionally insult and such insult must give provocation to any person and further that he must have the requisite knowledge that such provocation will result in breach of public peace or commission of any other offence and in case the said requirements are not made out a conviction cannot be sustained. Learned Counsel has also referred to the Medical Certificate of the examination of the said Herman Almeida and has submitted that the said certificate does not show that any injury was suffered by the said Herman 6 Almeida. Learned Counsel therefore submits that no useful purpose would be served by proceeding with the trial of the case. Relying on the case of Zandu Pharmaceuticals Works Ltd. and others v. Mohd. Sharaful Haque and another((2005) 1 SCC 122) learned Counsel has submitted that the evidence produced is inconsistent with the accusations made and therefore this is a fit case to quash the process issued against the petitioner and respondent no.2. 7. Admittedly, it is only the petitioner/A-2 in the case, who has challenged the order issuing process. It may be that the said Sunita Viegas and others have given some explanation why there was delay in not removing the jeep No.GA-02-J-4140 but the fact remains, that Herman's allegation is that he was obstructed. If the complainant Herman Almeida has not referred to the abuses given by the accused in his complaint that appears to have made good by his wife who has specified the words used by the accused and in this context the absence of the bad words into the complaint of the said Herman Almeida and the presence of the said words in the statement of his wife Pramila Almeida would be a matter of appreciation of evidence. It is true that the Medical Officer who examined Herman Almeida, belatedly, did not find any injury on his person but it could not be said at this stage that in the absence of an injury being found no simple hurt was caused to him. Injury is not an essence of Section 323 I.P.C. One cannot lose sight that there is an allegation that the complainant Herman Almeida was assaulted with the fist blow on his left eye. Learned Counsel on behalf of the petitioner submits that there is no prima facie material to frame charge under 7 Section 341 against the petitioner. This submission also cannot be accepted as it appears that the petitioner was very much along with respondent no.2 who was driving the vehicle and thereafter acted in concert along with him. To my mind, this is not a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made for quashing the process issued. This is a case where there is, prima facie, allegation which, on appreciation of evidence, may or may not support the accusation, as stated by the Apex Court in Zandu Pharmaceuticals Works Ltd. and others v. Mohd. Sharaful Haque and another(supra) and being so this will not be a case to exercise jurisdiction under Section 482 of the Code and quash the process issued against the petitioner/A-2. 7. In view of the above, the petition fails and is hereby dismissed. N. A. BRITTO, J. RD