Mumbai: The sessions court has upheld the conviction of a man who sent messages around midnight to a married woman, along with an image that the complainant said was obscene.
The court noted that the messages contained text such as “You are slim”, “You are looking very smart”, “You are fair”, “My age is 40 years”, “Are you married or not?” and “I like you”.
Finding no error in the guilty verdict given by a magistrate in 2022, Additional Sessions Judge D G Dhoble reasoned that “obscenity must be judged from the perspective of an average person applying contemporary community standards”.
In a judgment on Tuesday, the sessions court said that the woman was a corporator and her husband a former corporator. “No married woman or her husband, who are reputed and a corporator, would bear such WhatsApp and obscene photos sent on her cell from 11 pm to 12.30 am when there is no relationship with the sender,” the sessions court said, dismissing an appeal filed by Narsingh Gude.
The sessions court upheld the three months’ simple imprisonment and a fine of Rs 1,000 imposed on the convict. The conviction was for offences under Section 509 (words, gestures, act intended to insult a woman’s modesty) of the Indian Penal Code and Section 67 (transmission of obscene material in electronic form) and Section 67A (transmission of sexually explicit material electronically) of the Information Technology Act.
The magistrate directed that the victim be paid a compensation of Rs 3,000.
On Jan 26, 2016, during a puja held at her home, the woman received 20-25 messages on her cell phone app from an unknown number. She filed an FIR. The trial concluded in 2022 with a guilty verdict against the accused, who then appealed before the higher, sessions court. The victim said the messages left her “troubled, insulted,” and “ashamed”.
The sessions court did not find merit in the defence of the accused over the alleged victim’s phone not being seized. The judge said the defence “argument of political rivalry as a motive for false implication was not supported by any evidence”.
“Non-seizure” of her mobile phone makes no difference, said the sessions court. “No woman would stake her dignity by implicating the accused in a false case,” the court said and accepted her oral evidence of having received an obscene image.
The judge saidthe cyber cell report issued by the Directorate of Forensic Science Lab verified that the messages originated from the appellant’s mobile number. The report is admissible in evidence, noted the court, especially when the accused failed to discharge the burden the law places on him “to explain who used his mobile and how his registered number was used for sending the alleged messages”.
The judge said failure to provide any plausible explanation allows the court to draw an adverse inference. He said the sender’s identity is not automatically presumed but is established through circumstantial evidence, documentary proof, and adverse inference under Section 106 of the Indian Evidence Act, which is duly established by the prosecution. The sessions court judgment said the trial court sentence was “neither harsh nor excessive, considering the offence is against a woman”.
The court cancelled the bail bond of the convict and directed that he be taken into custody forthwith to serve his sentence.