Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C.No.440/PW/2022
MHMM180010542022 Received on : 23/02/2022
Registered on : 23/02/2022
Decided on : 21/10/2022
Duration : 00 Y. 07 M. 28 D.
Exh.No.-10
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
(Presided over by K.H. Thombre)
a) The Serial number of the case : C.C. No.440/PW/2022
b) The date of commission of
offence
: 31/12/2021
c) The name of the complainant if
any
: The State through Mahim police
station. C.R.No.617/2021.
d) The name of the accused persons,
parentage and residence
: Ravishankar Mahendra Yadav
Age – 25 years,
Occupation- Scrap collection
R/o.Opp. Makhdushah Baba Dargah,
Footpath, Mahim(W), Mumbai.
e) The offence complained of or
proved
: Under section 354, 509, 504 of
Indian Penal Code.
f) The plea of the accused and his
examination, if any
: Accused pleaded not guilty and
claimed to be tried.
g) The Final Order : The accused is convicted for the
offence punishable under Section
354, 509 and 504 of I.P.C.
h) The date of such order : 21/10/2022
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Judgment 2 C.C.No.440/PW/2022
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Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr.P.P.Khot
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JUDGMENT
(Delivered on 21/10 /2022)
1) The accused is charged for the offence punishable under section
354, 509, 504 of The Indian Penal Code 1860 (for short code).
2) The case of prosecution in brief as under----
That on 31/12/2021 at about 10.20 a.m. informant and her friend
were going on two wheeler from Dadar to Bandra Joggers Park. At about 10.35
a.m. they stopped at Mahim Junction due to traffic signal. At that time accused
was urinating near public toilet by the side of Mahim Traffic Check-post.
Informant's attention gone towards the accused. The accused shown his private
part to the informant by looking at her, on which informant said to her friend,
how dirty is this man?. On hearing this the accused abused and said to
informant, “To come and clean”. On questioning by informant the accused
moved his hand on the chest of informant by pushing her. The friend of the
informant came to rescue, the accused pushed and abused her in filthy language.
On uprearing by informant and her friend, police present by the side arrested the
accused. The accused, informant and friend of informant were taken to the
Police Station.
3) On the report of the informant offence was registered vide crime
No.617/2021 punishable under sections 354, 509, 504 of Indian Penal Code
against accused. During investigation accused was arrested. After completion of
investigation charge-sheet is filed against the accused.
4) The charge was framed against the accused at (Exh.02). The
contents of the charge were read over and explained to the accused in vernacular
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Judgment 3 C.C.No.440/PW/2022
through Video Conference to which the accused pleaded not guilty and claimed
to be tried. Plea of the accused was recorded at Exh.03.
5) The prosecution has examined in all four witnesses (P.W.No.1)
informant at (Exh.04), (P.W.No.2) the friend of informant at (Exh.06), (P.W.No.3)
Pitambar Rajdhar Wagh at (Exh.07) and (P.W.No.04) Kiran Hindurao Patil at
(Exh.08). Statements of the accused under Section 313(1)(b) of The code of
Criminal Procedure 1973 is recorded at (Exh.09). The defence of the accused is
of false implication and false case is filed against him. There was scuffle in
between him and informant. In scuffle his hand might have touched to the chest
of informant unintentionally.
6) Considering the evidence and arguments of the parties, following
points arose for determination. Findings are recorded for reasons to follow.
Sr.No POINTS FINDINGS
1] Whether the prosecution proved that on
31/12/2021 at about 10.35 a.m. beside Mahim
Traffic Chowky, near Public Toilet,
Mahim(W), Mumbai-16, his hand on the
chest of informant with the intention or
knowledge that he would there by outrage her
modesty and there by committed an offence
punishable under Section 354 of Indian Penal
Code ?
In the affirmative
2] Whether the prosecution proved that on the
aforesaid time, date and place accused
intending to insult the modesty of informant
and her friend uttered the words in filthy
language and made obscene gestures
intending that same shall be heard or seen by
her and thereby committed an offence
punishable under Section 509 of Indian Penal
Code?
In the affirmative
3] Whether the prosecution proved that on the
aforesaid time, date and place accused
intentionally insulted the informant and her
In the affirmative
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Judgment 4 C.C.No.440/PW/2022
friend by abusing them and thereby gave
provocation to them intending or knowing it
to be likely that such provocation will cause
them to break the public peace or to commit
any offence and thereby committed an
offence punishable under Section 504 of
Indian Penal Code?
4] What order? Accused is convicted
R E A S O N S
AS TO POINT NO.1 :
7) Section 354 of the Code is incorporated with following ingredients-
i) That the person assaulted must be a woman
ii) That the persons must have used criminal force on her
iii) That the criminal force must have been used on the woman
The word 'assault' and 'criminal force' are appearing under Section 354 of
the Indian Penal Code. Assault is defined under Section 351 of the Code. It is
settled position of rule of evidence that the burden is on the prosecution to
establish all the ingredients of the offence against the accused without any
shadow of doubt. As per evidence of (P.W.1) informant, she saw the accused
doing toilet by the side of Police Chowky, Mahim when they stopped at the
signal. By looking at her accused shown his private part and started coming
towards the informant. It is deposed by friend of informant,(P.W.2) that she saw
the accused coming towards them by taking his penis in his hand. Both these
witnesses deposed that accused said to them, come and clean his private part,
then they said to the accused, 'Is he not ashamed of ?
8) Informant (P.W.1) and (P.W.2) friend of informant categorically
deposed that accused abused them in filthy language and he touched to the chest
of informant by his hand. Informant deposed that the accused touched her chest
by his hand inappropriately.
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9) The Police Constable, Pitambar Wagh(P.W.3) deposed that he
reached near Traffic Chowky of Mahim Police Station at about 10.00 to 10.30
a.m.. Their vehicle was stopped due to red signal,two women were shouting, one
person was doing obscene gesture by showing his private part. They went there,
that person put his hand on the chest of that woman and pushed her. Then they
arrested that person.
10) In cross-examination of informant and her friend they admitted that
they did not inform about the incidence to the Traffic Police Constable or to the
Police Officer nearby. Then accused started running, 4 to 5 people also ran
behind accused alongwith them. Informant has specifically denied the suggestion
that in a scuffle hand of accused touched to her chest mistakenly. P.W.4,
Pitambar Wagh denied suggestion that he did not witnessed the incidence
personally.
11) Investigation Officer, (P.W.4) Kiran Patil deposed that he written
report of the informant as per her say and registered an offence as per FIR
(Exh.05). The accused was brought to the Police Station by the staff of the
Mahim Police Station. It is denied by (P.W.4) Kiran Patil that CCTV Footage
was not checked by him from the nearby place of incidence and registered false
offence against the accused.
12) There is no evidence by which it can be said that the informant
and witnesses are not giving true account of the incidence. From the suggestion
given to the informant that hand of accused mistakenly touched to her chest
proves that accused was present and there was scuffle in between accused and
the informant.
13) It is argued on behalf of the accused that in FIR (Exh.05) it is stated
by the informant that when informant shouted police standing nearby caught hold
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the accused and taken them to the Police Station. In evidence, informant and her
friend stated that accused ran away, four to five people ran behind the accused,
Police Van was coming from the front lane and the Police Officers from the Van
arrested the accused. These discrepancies highlighted by Ld. Advocate for the
accused are minor in nature, the reason is it does not wash out the previous
conduct of the accused which is the root cause for which offence is registered
against the accused. Inspite of that presence of accused is proved from the
evidence of informant, her friend and P.W.3 Pitambar Wagh.
14) Ld. APP for the state argued that informant her friend & (P.W.3)
Pitambar Wagh categorically stated that accused touched to the chest of
informant. The ingredients of offence of outraging modest and other offence are
made out against the accused. Ld. Advocate for the accused submitted that there
was scuffle in between accused and informant. In scuffle his hand might have
touched to the chest of informant unintentionally. The knowledge and intention
of the accused is not to outrage her modesty.
15) The word 'modesty' is subjective in nature, it varies from woman to
woman. Intention is not the sole criteria of the offence punishable under section
354 of the Indian Penal Code and it can be committed by a person assaulting or
using criminal force to any woman if he knows that by such act the modesty of
the woman is likely to be affected. Knowledge and intention are essential things
of the mind and it cannot be demonstrated like physical objects. The existence of
intention or knowledge is to be culled out from various circumstances in which
and upon who the alleged offence is alleged to have been committed. The victim
of molestation and indignation is in the same position as injured witness.
16) The modesty of women has not been defined. However in the case
of Rupan Deol Bajaj Vs Kanwar Pal Singh Gill (1995)6 SCC 194 The Hon'ble
Supreme Court has quted the ovservations in the State of Punjab Vs Major
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Singh AIR 1967 SC 63 that -
“..... it appear to us that the ultimate test for ascertaining
whether modesty has been outraged is the action of the offender such as
could be perceived as one which is capable of shocking the sense of
decency of a women”.
It is further observed that -
“..... it is undoubtedly correct that if intention or knowledge
is-one of the ingredients of any offence, it has got to be proved like other
ingredients for convicting a person. But, it is also equally true that those
ingredients being state of mind may not be proved by direct evidence and
may have to be inferred from the attending circumstances of a given case”.
17) The informant and her friend are educated and doing job. If the act
committed by the accused is done towards any woman or the woman like the
informant and her friend, it certainly gives sense of feeling that her decency is
attacked with ill-intention. The evidence of prosecution witness proves that the
accused assaulted by scuffling with the informant. The accused used criminal
force by moving his hand on the chest of informant. The intention and
knowledge to outrage modesty is proved from previous and subsequent conduct
of the accused. On the basis of evidence on record the defence of the accused is
not plausible and acceptable. The evidence of informant and two eye witnesses is
direct, cogent and reliable proves the ingredients of the offence punishable under
Section 354 of the Code against the accused beyond reasonable doubt. Finding
to Point No.1 is recorded in the affirmative.
AS TO POINT NO.2 :
18) The modesty of a woman by words, gesture or act if insulted
intentionally the offence under Section 509 of the Code is made out. The
informant and her friend specifically deposed that accused shown his private part
to them and said to come and clean it. The words uttered by the accused and the
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Judgment 8 C.C.No.440/PW/2022
gesture made by the accused by showing private part to informant and her friend
certainly amounts to insulting modesty of a woman. Intention of insulting
modesty of the informant and her friend is clear as the accused exhibited them his
private part and uttered words, to come and clean. This evidence establishes the
ingredients of the offence punishable under Section 509 of the Code. In absence
of any shadow of doubt it is held that accused has committed an offence
punishable under Section 509 of Indian Penal Code.
AS TO POINT NO.3 :
19) In order to prove the charge under Section 504 of the Code, words
used by the accused are not only to insult but also must provoke to cause breach
of peace or to commit any other offence. The term “insult” means that the words
used must be of such a nature that causes contempt to the dignity of a person or
we can say which causes sense of humiliation to that person'. As per evidence of
informant and her friend, the accused by showing his private part uttered words
to come and clean. These words used by the accused suggest that they should
come and clean his private part. This language intentionally used by the accused
is of such a nature as would in the normal course any person particularly a
woman will feel insulted and will provoke to breach the peace or commit an
offence. The evidence on record establishes that the accused has committed an
offence punishable under Section 504 of the Code.
AS TO POINT NO.4 :
20) From the evidence on record it is established that the prosecution
has proved all the ingredients of the offence punishable under Section 354, 509
and 504 of the Code beyond reasonable doubt. For these reasons the accused is
held guilty for the offence punishable under Section 354, 509 and 504 of the
Indian Penal Code. Accordingly finding to Point No.1 to 3 is recorded in the
affirmative.
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21) A pause is taken to hear the accused on point of sentence. The Ld.
Advocate for the accused and the accused in person submitted that minimum
punishment and only fine amount the awarded. It is also submitted that the
sentence of imprisonment for the period undergone by the accused be awarded.
On the other hand Ld. APP submitted that maximum punishment should be
awarded looking to nature of offence.
22) Reference could be made to the case of Ratan Sing Vs stated
Punjab 1979 SCC (4) 719 wherein it has been observed that -
“..... it is weakness of our jurisprudence that the victim of the
crime, and the distress of the dependents of the prisoner, do not attract the
attention of the law. Victim reparation is still the vanishing point of the
criminal law. He further submitted that offence is of severe nature, in such
in position sentence as well as fine couples with compensation will meet
ends of justice”.
23) In the case of Sayyad Shakil Ahma Vs State of Maharashtra
2001(2) B.Cr.R.C.45. it has been observed that -
“The traditional hyper-technical approach has to be replace
by a rational, realistic and genuine approach for administering justice in a
criminal trial, the Court should not only see that no innocent person is
punished but should also see that no guilty person escapes unpunished.”
24) In view of this legal position the punishment should be rational,
realistic and genuine approach is required for administering justice in a criminal
trial. The incidence taken place at a public place on public road near police
chowky. The kind of act done by the accused shows his arrogance without any
fear and respect towards woman. The offence punishable under Section 354, 509
& 504 are serious. These offences are meant for preserving morality and
decency. The act of the accused is nothing but an attack on personal right,
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Judgment 10 C.C.No.440/PW/2022
individual liberty and dignity of person. On the other hand, there is no criminal
antecedents against the accused. The accused appears to be of young age. The
accused is under trial prisoner.
25) Amendment in section 354 of Indian Penal Code substituted in the
year 2013 provides punishable imprisonment of either description for a term
which shall not be less than one year but which may extent to five years and shall
also liable to be fine. Considering all these aggravated and mitigating
circumstances sentence of imprisonment together with fine would be justified.
Out of fine amount part amount can be given to the informant and her friend as a
compensation. Following sentence would be rational, realistic and justified to
meet the end of justice. Accordingly, I answer point No.1 to 3 in affirmative and
in answer to point No.4 pass the following order :-
ORDER
1. The accused Ravishankar Mahendra Yadav is convicted for the
offence punishable under Section 354, 509, 504 of Indian Penal Code vide
Section 248(2) of the Code of Criminal Procedure.
2. The accused Ravishankar Mahendra Yadav is convicted for the
offence punishable under Section 354, and sentenced to suffer Rigorous
Imprisonment for (01) one year and to pay fine of Rs.15,000/-(Rupees Fifteen
Thousand only), in default of payment of fine, the accused to suffer further
Rigorous Imprisonment for 01(One) month.
3. The accused Ravishankar Mahendra Yadav is further convicted
for the offence punishable under Section 509, and sentenced to suffer Rigorous
Imprisonment of (06) Six months and to pay fine of Rs.10,000/- (Rupees Ten
Thousand only), in default of payment of fine accused to suffer further Rigorous
Imprisonment for 15 days(fifteen days).
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4. The accused Ravishankar Mahendra Yadav is further convicted
for the offence punishable under Section 504, and sentenced to suffer Rigorous
Imprisonment of (06) Six months and to pay fine of Rs.10,000/-(Rupees Ten
Thousand only), in default of payment of fine accused to suffer further Rigorous
Imprisonment for 15(Fifteen) days.
5. Sentence passed under each Section shall run concurrently.
6. The period of detention undergone by the accused be given set off
against the term of imprisonment imposed upon the accused as per Section 428
of The Code of Criminal Procedure.
7. If, fine amount is recovered from the accused, compensation of
Rs.5,000/-(Rupees Five Thousand only) each be given to the informant and her
friend under Section 357(1) of The Code of Criminal Procedure.
8. Copy of the judgment be given to the accused free of cost
forthwith.
( Dictated on computer and pronounced in open Court.)
Date:- 21/10/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 21/10/2022
Dictated on : 21/10/2022
Typed on : 21/10/2022
Signed on : 21/10/2022
vnh
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