MANU/KA/3042/2020

Equivalent Citation: 2020(4) AKR 517, 2020(3)C rimes285(Karnt.), ILR 2021 KARNATAKA 835, 2021(1)KarLJ432

IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Crl. Appeal No. 2593/2011
Decided On: 18.08.2020
Appellants: Selvina Kom Peter Byarko Vs. Respondent: Ganesh P. and Ors.
Hon'ble Judges/Coram:
M.G. Uma, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Anant Hegde, Adv.
For Respondents/Defendant: Venkatesh M. Kharvi, Adv.
Case Note:
A) CRIMINAL PROCEDURE CODE, 1973 - SECTION 378(1)-Appeal against
the Judgment of acquittal-Offences punishable under Section 500 of IPC-
AND
INDIAN PENAL CODE, 1860-SECTION 499-Defamation-Accused No. 1 is the
printer, publisher and editor of the weekly magazine 'Kadala Koogu' and
accused No. 2 is the reporter-Publication of article in the weekly magazine
captioned as ???(I) against a primary school teacher-Finding of the Trial
Court that the words used by the accused in the article are objectionable in
nature, but the whole article is not defamatory-Re-appreciation of evidence
on record-Exemption claimed by the accused under Eighth and Ninth
Exceptions to Section 499 of IPC-The accused who plead exception must
prove it-
HELD,
(a) Under Section 499 of IPC, if any imputation concerning a person is
published with an intention or knowledge or having reason to believe that
such imputation will harm the reputation of such person, it amounts to
defamation of that person, except under Ten Exceptions contained therein.
[19]
(b) Section 105 of the Indian Evidence Act, 1872 deals with the burden of
proving existence of circumstances bringing the case within any of the
general exceptions in the IPC or within special exception or proviso
containing in other parts of the same Code or in any law defining the
offence, on the accused and mandates the Court to presume the absence of
such circumstances. [20]
FURTHER HELD,
(a) The position of law with regard to defamation is very well settled. If
once publication is proved to be defamatory in nature, harming the
reputation of the complainant, the burden shifts on the accused to claim

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 exemption under any of the exceptions under Section 499 of IPC. Even
when the accused takes a defence that publication containing the
imputation was a true fact, he is required to prove that the said publication
was for the public good, in order to attract the first exception. If on the
other hand accused seeks exemption under the ninth exception, he has to
prove that the imputation was made in good faith for his protection or of
any other person. Moreover, the person who makes such imputation and his
position will determine the standard of care and caution he has to take,
while making such publication. [28]
(b) If the accused prefers to seek shelter under the first exception to
Section 499 of IPC, he has to prove that it was imputation of truth, which
was published for public good. Imputation of truth by itself is not a defence
available to the accused, when publication of imputation was not for public
good. On the other hand if he invokes ninth exception, it is for him to prove
that the imputation was made in good faith for protection of his own or
other's interests. Public good referred to in the first exception or good faith
referred to in the ninth exception to Section 499 of IPC, are definitely the
questions of fact, which have to be gathered from the facts and
circumstances of each case and to be established by the accused. [30]
B) CONSTITUTION OF INDIA-ARTICLE 21-Right to life includes life with
dignity and reputation-Such a right cannot be invaded under the garb of
freedom of speech and expression-Right conferred under Article 19 of the
Constitution of India is subject to reasonable restrictions-
HELD,
Right to life, it definitely includes the life with human dignity and
reputation. This right of a citizen is very precious and recognized as
fundamental under Article 21 of the Constitution of India. It cannot be
invaded under the garb of freedom of speech and expression. Even though
the freedom of speech and expression is recognized as a right under Article
19 of the Constitution of India, it is not an absolute right but is subject to
reasonable restrictions. [29]
C) CRIMINAL PROCEDURE CODE, 1973-SECTION 378(1)-Appeal against
Judgment of acquittal-Only under exceptional cases and in compelling
circumstances, judgment of acquittal may be reversed-
HELD,
The law on interfering with the judgment of acquittal is well settled. It is
only in exceptional cases where there are compelling circumstances and
the judgment in the appeal is found to be perverse, the Appellate Court can
interfere with the order of acquittal. Court is conscious of the fact that the
Appellate Court should bear in mind the presumption of innocence of the
accused and further the acquittal of the accused by the Trial Court supports
the presumption of innocence and interference in a routine manner where
other view is possible, should be avoided, unless there are good reasons for
interference. [35]
FURTHER HELD,

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 The facts and circumstances of case do not even remotely suggest that the
accused were either innocent or have acted in good faith or for public good.
The Trial Court has not taken into consideration the settled position of law
on defamation and casually proceeded to acquit the accused without
assigning any valid reasons; The impugned judgment is not only illogical
but it is also perverse. Under such circumstances, allowing the impugned
judgment of acquittal to remain will definitely result in miscarriage of
justice. Therefore, the same is liable to be set-aside and both the accused
are to be convicted for the offence punishable under Section 500 of IPC.
[36]
(1) CRIMINAL PROCEDURE CODE, 1973-SECTION 357-A-VICTIM
COMPENSATION-GRANT OF VICTIM COMPENSATION TO THE COMPLAINANT-
DISCUSSED. [37]
(2) CONSTITUTION OF INDIA-ARTICLE 19-DISCUSSED. [37]

JUDGMENT
M.G. Uma, J.
1. The appellant/complainant approached this Court aggrieved by the judgment dated
05.01.2011 passed in C.C. No. 1719/2005, on the file of the learned Principal Civil
Judge (Jr. Dn.) and JMFC, Bhatkal (for short, referred to as the 'trial Court'),
acquitting respondents/accused Nos. 1 and 2 for the offence punishable under
Section 500 of Indian Penal Code (for short, referred to as IPC).
2 . Heard the learned counsel for the appellant Sri. Anant Hegde, through video
conference and the learned counsel Sri. Venkatesh M. Kharvi for the respondents.
3. Brief facts of the case of the complainant before the trial Court is that, accused No.
1 is the printer, publisher and editor and accused No. 2 is the reporter of 'Kadala
Koogu' weekly magazine. It is stated that the accused have published a news item in
their magazine on 15.08.2005 with the headline- . In the
caption and in the article accused made imputation concerning the complainant, with
an intention and knowledge, to harm her reputation as it contained defamatory
accusation against her character. The complainant was working as a teacher and in
view of the publication of defamatory article by accused Nos. 1 and 2, her reputation
in the eyes of others was lowered and the members of the society, including her
students, started looking at her with suspicion. Therefore, she issued a legal notice
calling upon accused Nos. 1 and 2 to withdraw the article and to pay the
compensation. The notice was served on accused No. 1. Accused No. 2 has refused to
receive the notice. Both of them have not complied with the demand made therein.
Therefore, the private complaint was filed before the trial Court.
4 . The trial Court after following the procedure took cognizance of the offence and
issued summons to both the accused to appear before the Court. The accused
appeared before the Court and pleaded not guilty for the offence punishable under
Section 500 of IPC and claimed to be tried.
5. The complainant got examined herself as PW1 and examined PWs.2 and 3 and got
marked Ex.P1 to P7 in support of her contentions. Accused Nos. 1 and 2 have denied
all the incriminating materials on record. They have examined themselves as DWs.1
and 2 and got marked Ex.D1 to D13 in support of their defence. The trial Court after
taking into consideration all these materials on record came to the conclusion that

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 the words used by the accused in the article are objectionable in nature. But however
felt that the whole article is not defamatory and accused Nos. 1 and 2 were acquitted
for the offence punishable under Section 500 of IPC. Aggrieved by the said judgment
of acquittal, the complainant has preferred this appeal on various grounds.
6. Learned counsel Sri. Anant Hegde appearing for the appellant, submitted that even
according to the trial Court, the publication is objectionable in law. The trial Court
also observed that the publication is against a woman, working as teacher. Inspite of
that the accused were acquitted without any valid reason. He submitted that when the
accused have not proved that they are saved under any of the exceptions under
Section 499 of IPC, the trial Court should have convicted the accused for the above
said offence.
7 . Learned counsel relied on the decision in Chaman Lal Vs. The State of Punjab
MANU/SC/0107/1970 : 1970(1) SCC 590 and Subramanian Swamy Vs. Union of
India, Ministry of Law and Others MANU/SC/0621/2016 : 2016(7) SCC 221 in support
of his contention and prayed for allowing the appeal by convicting both the accused.
8 . Per contra, the learned counsel Sri. Venkatesh M. Kharvi for the respondents
supporting the impugned judgment submitted that even though the publication of the
article is admitted by the accused, the trial Court considered the defence taken by
them and rightly acquitted the accused. He submitted that true facts were published
in the article after due enquiry and similar articles were published against the
complainant in other newspapers and magazines and that no defamatory words were
published by the accused to attract the Penal provision of Section 500 of IPC. He
further submitted that Eighth and Ninth Exceptions to Section 499 of IPC applies to
the present case and under such circumstances, no offence of defamation was made
out. The trial Court after properly appreciating the contentions of the parties, rightly
acquitted the accused and the same do not deserve interference by this Court.
Learned counsel relied on the decision of the High Court of Calcutta in Romesh Roy
Vs. The King MANU/WB/0015/1952 : AIR 1952 Calcutta 228 in support of his case
and prayed for dismissal of the appeal.
9. I have perused the materials including the trial Court records.
10. It is not in dispute that accused No. 1 is the printer, publisher and editor of the
weekly magazine 'Kadala Koogu' and accused No. 2 is the reporter. It is also not in
dispute that the article with the caption was published in the
magazine dated 15.08.2005. According to the complainant, the caption and the
contents of the article are not only objectionable, but are defamatory in nature and
therefore the accused are to be convicted for the offence punishable under Section
500 of IPC.
11. On the other hand, it is the contention of accused Nos. 1 and 2 that neither the
headline nor the article contain defamatory statement, on the other hand, it contains
true facts and therefore, the offence punishable under Section 500 of IPC is not made
out. Secondly it is also contended that several other newspapers and magazines have
published similar articles and under such circumstances, only the accused cannot be
chosen by the complainant to prosecute them.
12. Regarding the defence taken by the accused that, similar articles were published
in other magazines, copies of which are marked as Exs.D1 to D7. In Ex.D1 the article
was published under the heading . In Ex.D2, it is
mentioned as . In Ex.D3 . Ex.D4
as . Ex.D5 as . In Ex.D6 as

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 and in Ex.D7 as .
1 3 . In support of her contention, the complainant examined herself as PW1 and
stated in detail about the harm that has caused due to the publication of the article
containing defamatory acquisition. During cross examination of the Complainant-
PW1, some of the publications which are latter marked as Exs.D1 to D7, were
referred to by the learned counsel representing the accused and the complainant has
pleaded her ignorance about such publications. This witness was cross examined at
length, but nothing has been elicited from her to discard her evidence.
14. The complainant has examined PW2 who stated that he knows the complainant
and the accused and he had read the article in question and stated that the said
information is false. Subsequently, this witness has turned hostile and not supported
the case of the prosecution.
15. PW3 examined before the trial Court also stated regarding the publication by the
accused and stated that due to this publication, the reputation of the complainant is
harmed and it has psychologically affected her. This witness was also cross examined
at length. The tenor of cross examination of PW1 and 3 is mainly that the article in
question contains true facts and that several other magazines have reported similar
facts.
16. Accused No. 2 was examined before the trial Court as DW1 and he stated that
Exs.D1 to D7 are the publications, where news items about the complainant were
published. He also states that he made sufficient enquiry before reporting the news
item in question. However, he denied the suggestion that defamatory imputation is
published in the newspaper, which has caused defamation.
17. Accused No. 1 was examined as DW2 who admits publication of Ex.P1. But states
that there were no imputations, which will harm the reputation of the complainant.
He also states that for public good he published the true facts about her behavior.
18. During cross examination, this witness stated that he does not know the meaning
of the word " mentioned in the caption and states that he has given a
rhyming caption to the article. He states that as per the report submitted by accused
No. 2, he had published the article, but denied the suggestion that it is defamatory in
nature.
19. Under Section 499 of IPC, if any imputation concerning a person is published
with an intention or knowledge or having reason to believe that such imputation will
harm the reputation of such person, it amounts to defamation of that person, except
under Ten Exceptions contained therein.
2 0 . Section 105 of the Indian Evidence Act deals with the burden of proving
existence of circumstances bringing the case within any of the general exceptions in
the IPC or within special exception or proviso containing in other parts of the same
Code or in any law defining the offence, on the accused and mandates the Court to
presume the absence of such circumstances.
21. The article in question published in 'Kadala Koogu' weekly magazine is produced
and marked as Ex.P1. The headline as stated above in bold letters is found in the first
page of the magazine and the article is found in the sixth and seventh pages. The
article clearly refers to the complainant with her name and also with the School in
which she was working. Serious accusations are made about her character and
behavior in the school and outside. There is a mention about her removal from
Ananda Ashrama Convent and she joining Vidyabharati School, thereafter appointing

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 her as a Government Teacher and about continuation of her objectionable behavior.
The headline found on the first page of the magazine in bold letters and the article in
the sixth and seventh pages contain imputations referring to the character of the
complainant with highly objectionable words. More over Accused No. 1 who is
examined as DW2 specifically stated that even though he dose not know the meaning
of the word 'sil sila', used it in bold letters, to have a rhyming caption. Under such
circumstances, it is for the accused to prove that the matter is squarely covered
under any of the exceptions under Section 499 of IPC.
22. One of the defences taken by the accused is that other publishers have published
similar articles in their magazines, which are marked at Exs.D1 to D7. The headline
in the front page of the magazine published by these accused in Ex.P1 is concerning
the character of the complainant and prima facie it is defamatory in nature. More so
when the complainant is admittedly a teacher in a primary school, teaching hundreds
of students, by no stretch of imagination the article can be said to be not defamatory.
The complainant who is examined as PW1 before the trial Court specifically stated
that in view of the publication in question, her reputation in the eyes of others has
affected and the publication has harmed her personality. None of these magazines
i.e. Exs.D1 to D7, have used such objectionable and defamatory wordings to make
character assassination and defame the complainant. Moreover the publication of
similar article by others is not an exception available to the accused under Section
499 of IPC.
23. Learned counsel for the respondents contended that Eighth and Ninth Exceptions
to Section 499 of IPC apply to the facts of the case and therefore the publication does
not amount to defamation.
24. Eighth and Ninth Exceptions to Section 499 of IPC reads as under:
"Eighth Exception: Accusation preferred in good faith to authorized person.
It is not defamation to prefer in good faith an accusation against any person
to any of those who have lawful authority over that person with respect to the
subject-matter of accusation.
Ninth Exception: Imputation made in good faith by person for protection of
his or other's interests.
It is not defamation to make an imputation on the character of another,
provided that the imputation be made in good faith for the protection of the
interests of the person making it, or of any other person, or for the public
good."
(Emphasis supplied)
2 5 . Bare reading of Eighth Exception refers to such accusation made to the
authorized person. But in the present case, since the article was published in the
magazine, the said exception cannot be made applicable.
26. In Ramesh Roy Vs. The King (supra), relied on by the learned counsel for the
accused, the High Court of Calcutta dealt with eighth exception to Section 499 of IPC
and held that the accused need not prove the allegations made by him to be true. In
the said case, a representation was submitted to the Deputy Commissioner of Police
making allegations against the complainant, that he is leading immoral life. Under
such circumstances, the High Court held that when such accusation was made in
good faith, while filing representation to the authorized persons, it falls squarely

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 under eighth exception to Section 499 of IPC. But in the present case, the contention
taken by the accused does not fall under eighth exception, since the article in
question was published in a magazine but not a representation submitted to an
authorized person.
27. To attract the Ninth Exception to Sec. 499 IPC, the imputation must be made in
good faith for protection of his or other's interest. It is not explained by the accused
as to how their interest or interest of others was involved in the case and how they
have protected it by publishing the news item.
2 8 . The position of law with regard to defamation is very well settled. If once
publication is proved to be defamatory in nature, harming the reputation of the
complainant, the burden shifts on the accused to claim exemption under any of the
exceptions under Section 499 of IPC. Even when the accused takes a defence that
publication containing the imputation was a true fact, he is required to prove that the
said publication was for the public good, in order to attract the first exception. If on
the other hand accused seeks exemption under the ninth exception, he has to prove
that the imputation was made in good faith for his protection or of any other person.
Moreover the person who makes such imputation and his position will determine the
standard of care and caution he has to take, while making such publication.
29. When we speak of right to life, it definitely includes the life with human dignity
and reputation. This right of a citizen is very precious and recognized as fundamental
under Article 21 of the Constitution of India. It cannot be invaded under the garb of
freedom of speech and expression. Even though the freedom of speech and
expression is recognized as a right under Article 19 of the Constitution of India, it is
not an absolute right but is subject to reasonable restrictions.
30. If the accused prefers to seek shelter under the first exception to Section 499 of
IPC, he has to prove that it was imputation of truth, which was published for public
good. Imputation of truth by itself is not a defence available to the accused, when
publication of imputation was not for public good. On the other hand if he invokes
ninth exception, it is for him to prove that the imputation was made in good faith for
protection of his own or other's interests. Public good referred to in the first
exception or good faith referred to in the ninth exception to Section 499 IPC, are
definitely the questions of fact, which have to be gathered from the facts and
circumstances of each case and to be established by the accused.
3 1 . In Chaman Lal Vs. The State of Punjab (supra) the Hon'ble Supreme Court
considered Exceptions 1, 8 and 9 under Section 499 of IPC and held in Paragraphs 15
to 17 as under:
"15. In order to come within the First Exception to Section 499 of the Indian
Penal Code it has to be established that what has been imputed concerning
the respondent is true and the publication of the imputation is for the public
good. The onus of proving these two ingredients, namely, truth of the
imputation and the publication of the imputation for the public good is on the
appellant. xxxx.
16. The Eight Exception to Section 499 of the Indian Penal Code indicates that
accusation in good faith against the person to any of those who have lawful
authority over that person is not defamation. xxxx
17. The Ninth Exception states that if the imputation is made in good faith for
the protection of the person making it or for another person or for the public
good it is not defamation. There is no evidence whatever to support the plea

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 that the imputation was for the public good. The accusation was not also
made in good faith. Good faith requires care and caution and prudence in the
background of context and circumstances. The position of the persons making
the imputation will regulate the standard of care and caution. Under the
Eighth Exception statement is made by the person to another who has
authority to deal with the subject-matter of the complaint whereas the Ninth
Exception deals with the statement for the protection of the interest of the
person making it. Interest of the person has to be real and legitimate when
communication is made in protection of the interest of the person making it."
(Emphasis supplied)
32. In Subramanian Swamy Vs. Union of India, Ministry of Law and Others (supra)
the Hon'ble Apex Court dealt with the subject in detail and in paragraphs 119, 132,
133, 135, 168, 179, 184, 185, 191 and 209 held as under:
"119. xxxx We are disposed to think that the right of expression with regard
to fictional characters through any medium relating to creation of a fiction
would be somewhat dissimilar for it may not have reference to an individual
or a personality. Right of expression in such cases is different, and be guided
by provisions of any enactment subject to constitutional scrutiny. The right of
freedom of expression in a poem, play or a novel pertaining to fictional
characters stand on a different footing than defamation as the latter directly
concerns the living or the legal heirs of the dead and most importantly,
having a known identity. A person in reality is defamed contrary to a "fictional
character" being spoken of by another character or through any other mode
of narrative. Liberty of freedom in that sphere is fundamentally different than
the arena of defamation. xxx
120 to 131. xxxx
132. xxxx Right to life includes the right to life with human dignity and all that
goes along with it, namely, the bare necessities of life such as nutrition,
clothing and shelter and facilities for reading, writing and expressing oneself
in diverse forums, freely moving about and mixing and commingling with
fellow human beings and, therefore, it is a precious human right which forms
the arc of all other rights. xxxx
133. xxxx Right to honour, dignity and reputation are the basic constituents
of right under Article 21. Submission of the learned counsel for the petitioners
is that reputation as an aspect of Article 21 is always available against the
high-handed action of the State. To state that such right can be impinged and
remains unprotected inter se private disputes pertaining to reputation would
not be correct. Neither this right be overridden and blotched notwithstanding
malice, vile and venal attack to tarnish and destroy the reputation of another
by stating that curbs and puts unreasonable restriction on the freedom of
speech and expression. There is no gainsaying that individual rights form the
fundamental fulcrum of collective harmony and interest of a society. There
can be no denial of the fact that the right to freedom of speech and
expression is absolutely sacrosanct. Simultaneously, right to life as is
understood in the expansive horizon of Article 21 has its own significance.
xxxx
134. xxxx
135. xxxx Acceptable restraint sub-serves the social interest. In the case at

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 hand, it is to be seen whether right to freedom and speech and expression
can be allowed so much room that even reputation of an individual which is a
constituent of Article 21 would have no entry into that area. To put
differently, in the name of freedom of speech and expression, should one be
allowed to mar the other's reputation as is understood within the ambit of
defamation as defined in criminal law.
136. to 167. xxxx
168. xxxx To constitute the offence, there has to be imputation and it must
have made in the manner as provided in the provision with the intention of
causing harm or having reason to believe that such imputation will harm the
reputation of the person about whom it is made. Causing harm to the
reputation of a person is the basis on which the offence is founded and mens
rea is a condition precedent to constitute the said offence. The complainant
has to show that the accused had intended or known or had reason to believe
that the imputation made by him would harm the reputation of the
complainant. The criminal offence emphasizes on the intention or harm.
Section 44 of IPC defines "injury". It denotes any harm whatever illegally
caused to any person, in body, mind, reputation or property. Thus, the word
"injury" encapsulates harm caused to the reputation of any person. It also
takes into account the harm caused to a person's body and mind. Section 499
provides for harm caused to the reputation of a person, that is, the
complainant.
169 to 178. xxxx
179. xxxx The First Exception stipulates that it is not defamation to impute
anything which is true concerning any person, if it be for the public good that
the imputation should be made or published. "Public good" has to be treated
to be a fact. In Chaman Lal v. State of Punjab, MANU/SC/0107/1970 : (1970)
1 SCC 590, the Court has held that in order to come within the First Exception
to Section 499 of the Indian Penal Code it has to be established that what has
been imputed concerning the respondent is true and the publication of the
imputation is for the public good. The onus of proving these two ingredients,
namely, truth of the imputation and the publication of the imputation for the
public good, is on the accused.
180. to 183. xxxx
184. A three-Judge Bench in Harbhajan Singh v. State of Punjab and another,
MANU/SC/0074/1965 : AIR 1966 SC 97has opined that where the accused
invokes Ninth Exception to Section 499 IPC, good faith and public good are
both to be satisfied and the failure of the appellant to prove good faith would
exclude the application of Ninth Exception in favour of the accused even if
requirement of public good is satisfied. The Court has referred to Section 52
IPC which defines "good faith" that requires the element of honesty. It is
necessary to note here that the three-Judge Bench has drawn a distinction
between the First Exception and the Ninth Exception to opine that the proof of
truth which is one of the ingredients of the First Exception is not an ingredient
of the Ninth Exception and what the Ninth Exception requires an accused
person to prove is that he made the statement in good faith. Proceeding
further, the Court has stated that in dealing with the claim of the accused
under the Ninth Exception, it is not necessary and, in a way, immaterial, to
consider whether he has strictly proved the truth of the allegations made by

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 him.
1 8 5 . In Sukra Mahto v. Basdeo Kumar Mahto and another,
MANU/SC/0194/1971 : 1971 (1) SCC 885 the Court has opined that the
ingredients of Ninth Exception are first that the imputation must be made in
good faith; secondly, the imputation must be protection of the interest of the
person making it or of any other person or for the public good. The Court
further opined that good faith and public good are questions of fact and
emphasis has been laid on making enquiry in good faith and due care and
attention for making the imputation.
186. to 190. xxxx
191. The detailed discussion made hereinabove do clearly reveal that neither
the main provision nor the Explanation nor the Exceptions remotely indicate
any vagueness. It is submitted that the Exceptions make the offence more
rigorous and thereby making the concept of criminal defamation extremely
unreasonable. The criticism advanced pertain to truth being not a defence,
and unnecessary stress on 'public good'. The counter argument is that if a
truthful statement is not made for any kind of public good but only to malign
a person, it is a correct principle in law that the statement or writing can
amount to defamation. Dr. Singhvi, learned senior counsel for some of the
respondents has given certain examples. The examples pertain to an
imputation that a person is an alcoholic; an imputation that two family
members are involved in consensual incest; an imputation that a person is
impotent; a statement is made in pubic that a particular person suffers from
AIDS; an imputation that a person is a victim of rape; and an imputation that
the child of a married couple is not fathered by the husband but born out of
an affair with another man. We have set out the examples cited by the
learned senior counsel only to show that there can be occasions or situations
where truth may not be sole defence. And that is why the provision has given
emphasis on public good. Needless to say, what is public good is a question
of fact depending on the facts and circumstances of the case.
192. to 208. xxxx
209. xxxx It is settled position of law that those who plead Exception must
prove it. It has been laid down in M.A. Rumugam 1 that for the purpose of
bringing any case within the purview of the Eighth and the Ninth Exceptions
appended to Section 499 of IPC, it would be necessary for the person who
pleads the Exception to prove it. He has to prove good faith for the purpose
of protection of the interests of the person making it or any other person or
for the public good. The said proposition would definitely apply to any
Exception who wants to have the benefit of the same. xxx"
(Emphasis supplied)
33. Thus the position of law on the subject is very well settled by these verdicts.
34. On going through the publication and also the evidence lead by both the parties,
in the light of the settled position of law, the contention of the learned counsel for
the accused that the publication is covered under any of the Exceptions, cannot be
accepted. I do not find either the public good or good faith in the act of the accused.
When the publication is not covered under any of the Exceptions, after the same is
held as an imputation that has harmed the reputation of the complainant, commission
of the offence punishable under Section 500 of IPC is complete. The conduct of the

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 Accused in using objectionable and defamatory words only to have rhyming caption
and the article is not at all acceptable and therefore both the accused are liable to be
convicted.
35. The law on interfering with the judgment of acquittal is well settled. It is only in
exceptional cases where there are compelling circumstances and the judgment in the
appeal is found to be perverse, the appellate Court can interfere with the order of
acquittal. I am conscious of the fact that the appellate Court should bear in mind the
presumption of innocence of the accused and further the acquittal of the accused by
the trial Court supports the presumption of innocence and interference in a routine
manner where other view is possible, should be avoided, unless there are good
reasons for interference.
36. The discussions held above show that the facts and circumstances of case do not
even remotely suggest that the accused were either innocent or have acted in good
faith or for public good. The trial Court has not taken into consideration the settled
position of law on defamation and casually proceeded to acquit the accused without
assigning any valid reasons. The impugned judgment is not only illogical but it is
also perverse. Under such circumstances, allowing the impugned judgment of
acquittal to remain will definitely result in miscarriage of justice. Therefore the same
is liable to be set aside and both the accused are to be convicted for the offence
punishable under Section 500 of IPC.
3 7 . The publication in question is dated 26.08.2008. The impugned judgment of
acquittal is dated 05.01.2011. Considering the length of time which has already
lapsed, I am of the opinion that some leniency may be shown in sentencing the
accused and at the same time, the complainant who is the victim of defamation is
required to be compensated, as provided under Section 357 of Cr.P.C. Learned
advocate for the respondents/accused Nos. 1 and 2 requested to sentence the
accused only with fine and not with imprisonment for any period. Considering such
submission, I proceed to pass the following:
ORDER
Appeal is allowed.
Impugned judgment of acquittal dated 05.01.2011 passed by the Principal
Civil Judge (Jr. Dn.) and JMFC, Bhatkal in C.C. No. 1719/2005 is set aside.
Respondents/Accused Nos. 1 and 2 are convicted for the offence punishable
under Section 500 of IPC and they are sentenced to pay fine of Rs. 30,000/-
each, to be deposited within 30 days from the date of receipt of the
judgment. In default to pay fine, accused shall undergo simple for a period
of one month.
From out of the fine amount to be deposited by accused Nos. 1 and 2, an
amount of Rs. 50,000/- is ordered to be paid to the complainant as
compensation under Section 357 of Cr.P.C.
Send back the trial Court records, with a copy of the Judgment.

1 M.A. Rumugam v. Kittu, MANU/SC/4958/2008 : (2009) 1 SCC 101

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