Final Order 2

Order Details: Copy of Judgment
Pdf Text: Judgment-C. C. No. :- 437/PW/2018 ~1~
MHMM18-003026-2018 Filed on : 27/02/2018.
Registered on : 13/03/2018.
Decided on : 20/02/2025.
Duration : 06 Y., 11 M., 24 D.
Exh. :
IN THE COURT OF THE JUDICIAL MAGISTRATE,
(FIRST CLASS), 71ST COURT, BANDRA, MUMBAI.
(PRESIDED OVER BY SHRI. ATUL B. JADHAV)
C. C. No. 437/PW/2018
The State of Maharashtra
Through : Office In-charge of
Police Station-Santacruz. …. Complainant.
V/s.
Ramprasad Mithailal Yadav/Gupta.
Age :- 49 Years, Occ. :- Taxi Driver.
R.o.:- Transit Camp No.1, Room No.2,
Khandwala Compound, Datta Mandir
Road, Vakola, Santacruz (E), Mumbai. …. Accused.
Appearance : Learned A.P.P. Shri. Prasad Joshi for the State.
: Learned Advocate Smt. Karuna Tiwari for the accused.
J u d g m e n t D a t e :- 20/02/2025
The accused viz. Ramprasad Mithailal Yadav/Gupta is
facing trial for the offences punishable under sections 509, 355 of the
Indian Penal Code, 1860.
2. The prosecution case in nutshell is as under,
The informant is lady, therefore, in order to hide her
identity, here-in-after she is referred as the ‘victim/informant’. The
victim/informant is resident of Flat No.1, Sunder Niwas, Malviya Road,
Vileparle (E), Mumbai. She is mehandi artist by profession. The
accused, who is a taxi driver gave the first informant an order for
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applying mehandi, by calling through his mobile No.9967408094 to
informant and called the informant on 02/04/2017, at around 09.00
p.m. and asked her to come to the JW Marriott Hotel, Juhu, Mumbai, as
he wanted the first informant apply the urgent mehandi for four
foreigner ladies staying in the said hotel.
3. It is further contended that, thereafter, the informant with
her assistant Kingal Nisar went at the said hotel, at around 09.30 p.m.
The accused took them to Room No.471, on fourth floor of the said
hotel. The informant upon meeting the four ladies for application of
mehandi, informed them about her mehandi charges and they agreed to
pay the charges and asked her to apply mehandi. The informant applied
mehandi design on the hands of two out of the four ladies, as per their
whish. After completion of application of mehandi the foreigner ladies
asked the informant to collect mehandi charges from accused.
4. It is further contended that, thereafter, the informant
contacted the accused. The accused met the informant in front the gate
of the hotel. The accused gave only I.2,000/-. At that time, informant
told him that, her charges is about I.5,000/-, but accused started
arguing with first informant. Therefore, the informant tried to go to
Room No.471, but she was not allowed to enter in the hotel from the
reception counter. At that time, accused started abusing the informant
in vulgar and in filthy language and started demeaning the informant
intending to insult her modesty.
5. It is further contended that, considering the situation the
hotel staff at the reception counter contacted the guest of Room No.471
through intercom. Thereafter, one out of the four ladies came down and
then the informant narrated the incident to the said lady. The said lady
apologized the first informant and paid I.6,000/- to informant.
6. It is further contended that, thereafter, the informant and
her assistant Kinjal left the hotel and reached at the main gate of the
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said hotel at around 03.00 a.m. They were waiting for rickshaw.
However, accused came towards the informant and abused her in vulgar
and filthy language and spat on the face of the informant and left the
place. Thereafter, on 03/04/2017 the informant has lodged the report
to police station–Santacruz.
7. Accordingly, on the basis of said report Santacruz police
have registered C.R. No.159/2017, punishable under sections 509, 355
of the Indian Penal Code and case has been handed over to A.P.I. Shri
Jayendra Rajaram Kumbhar for further investigation.
8. Investigating Officer A.P.I. Shri Jayendra Rajaram Kumbhar
during his investigation he arrested the accused. He recorded
statements of witnesses. During his investigation he found that, accused
had committed an offence, therefore, he sent charge-sheet against
accused to the court.
9. The accused appeared. My Ld. Predecessor has framed
charge against the accused, vide (Exh.2). The contents of charge are
read over and explained to the accused to which the accused pleaded
not guilty and claimed to be tried.
10. The prosecution in order to prove the guilt of the accused
has examined as many as three witnesses. Those are as follows ...
Sr. No. Name of Witness P.W.No. At Exhibit
1 Informant/Victim. (PW1) (Exh.4)
2 Kinjal Sameer Nisar. (PW2) (Exh.6)
3 Investigating Officer-Retired A.P.I.
Shri Jayendra Rajaram Kumbhar.
(PW3) (Exh.7)
11. Beside this, prosecution also relied on the following
documents which are, as follows …
Sr. No. Particulars of Documents At Exhibit
1 The F.I.R. (Exh.5)
2 Arrest Panchnama (Exh.-8)
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12. I have recorded the examination of the accused under
section 313 of the Cr. P. C. vide (Exh.-9). The accused denied all the
evidence and charges levelled against him. The defence of the accused
is of that total denial and further it is defence of accused that, he has
been falsely implicated in the false case in order to extract more money
from him. It is further defence of accused that, the informant has raised
quarrel with customers for additional money.
13. Considering the facts and circumstances of the prosecution
case and the evidence placed on record and defence of accused,
following points do arise for my determination. My findings thereon
along with my reasons are, as follows.
SR. NO. POINTS FINDINGS
1 Does prosecution prove that, the accused
on 03/04/2017, in between 02.00 to 03.00
hours, at Hotel JW Marriott, Juhu Tara
Road, Santacruz, Mumbai intending to
insult the modesty of informant/victim
uttered the obscene words, intending that
the same shall be heard by her and thereby
committed an offence ?
Negative.
2 Does prosecution prove that, on the
aforesaid date, time and place the accused
assaulted to the informant, intending by
such assault to dishonor her otherwise than
on grave and sudden provocation given by
her and thereby committed an offence ? Affirmative.
3 What order ? As per final
order.
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R e a s o n s
14. I have heard elaborated arguments of Ld. A.P.P. Shri. Prasad
Joshi for the State and Ld. Advocate Smt. Karuna Tiwari for the
accused. I have also considered the written notes of arguments
submitted by the informant, which is at (Exh.-10).
As to Point No.-1 : -
15. The accused is charged with an offence punishable under
section 509 of the Indian Penal Code. For better appreciation of the
provision of section 509 of the Indian Penal Code I would like to quote
here section 509 of Indian Penal Code, which reads as under...
Whoever, intending to insult the modesty of any
woman, utters any words, makes any sound or
gesture, or exhibits any object, intending that such
word or sound shall be heard, or that such gesture or
object shall be seen, by such woman, or intrudes upon
the privacy of such woman, shall be punished with
simple imprisonment for a term which may extend to
three years and shall also be liable to fine.
16. In order to prove the guilt of accused under section 509 of
the Indian Penal Code the prosecution has to prove that, accused
uttered some words or made some sound or gesture or exhibit any
object or intruded upon the privacy of woman and he thereby intended
to insult the modesty of woman.
17. Ld. A.P.P. Shri Prasad Joshi for the State submits that, the
informant (PW1) and her assistant Kinjal (PW2), as per the order given
by the accused went at Hotel JW Marriott for applying mehandi on the
hands of foreign ladies. On 02/04/2017 at around 09.30 p.m. The
informant and her assistant went in the Room No.471 of the said hotel.
There was discussion with the four foreigner ladies about the charges of
applying mehandi. The said ladies agreed to pay the charges, as
discussed. The informant (PW1) and her assistant Kinjal (PW2) had
applied the mehandi on the hands of two ladies. They asked the
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informant to collect the charges from the accused. The accused paid
only I.2,000/- to informant but the informant said him that, the charges
of application of mehandi is I.5,000/-. Then accused started arguing
with the informant and used filthy language to informant.
18. Then informant (PW1) and her assistant Kinjal (PW2)
again went to the hotel, but the staff of the hotel at reception counter,
did not allow them to go in the Room No.471. Accused abused the
informant in filthy language and started arguing. Considering the said
situation the hotel staff at reception counter through intercom
contacted with said four foreign ladies. Thereafter, one out of the four
ladies came at reception counter, where the informant narrated the
incident to the said lady. The said lady apologized the informant and
gave her I.6,000/-, as a charges of applying mehandi and for fare to go
to home.
19. Ld. A.P.P. Shri Prasad Joshi for the State further submits
that, the informant (PW1) and her assistant Kinjal (PW2) left the hotel
and came at the gate of the said hotel. They were waiting for the
rickshaw. At that time, accused came there and abused the informant in
filthy language and spat on the face of informant and left the scene of
offence. Further, Ld. A.P.P. Shri Prasad Joshi for the State submits that,
the informant (PW1) categorically deposed that, accused abused her in
filthy language. The specific abuse, which has been given by the
accused has been deposed by the informant (PW1) as well as Kinjal
(PW2). The informant (PW1) and Kinjal (PW2) got scared by the said
incident. The act of accused is dishonored the modesty of the informant.
He further submits that, the evidence of informant (PW1) and Kinjal
(PW2) are corroborated by the F.I.R. (Exh.-5), which has been proved
by the prosecution at the mouth of informant.
20. The defence of accused is not at all probable. Further, as
already the charges of mehandi have been paid by the lady foreigner,
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therefore, the defence that, in order to get additional amount from him
he has been falsely implicated is not at all considerable.
21. The prosecution proved that, accused with intention insult
the modesty of informant, abused her in filthy language and uttered the
words, which is intrudes upon the privacy of the informant. Therefore,
accused is liable for punishment under section 509 of the Indian Penal
Code.
22. Per contra, Ld. Advocate Smt. Karuna Tiwari for accused
submits that, the specific abuse is not mentioned in the F.I.R. and even
in the statements of informant (PW1) as well as Kinjal (PW2) recorded
by the Investigating Officer. The alleged incident taken place at the
reception counter of the hotel and as per the prosecution case the said
incident has been evident by the staff of the reception counter of the
said hotel. However, those important witnesses, have not been
examined by the prosecution. Even the Investigating Officer has not
taken pains to get recorded their statements. The evidence of Kinjal
(PW2) is not at all trustworthy, because she is interested witness.
Therefore, prosecution failed to prove that, the accused had committed
an offence punishable under section 509 of Indian Penal Code beyond
any reasonable doubt.
23. Considering the arguments advanced by the both parties
and the legal provision for the offence punishable under section 509 of
Indian Penal Code, I would like to discuss the evidence on record.
24. The informant/victim (PW1) in her deposition categorically
deposed that, on 02/04/2017 accused said her that, he has foreign
clients, who wants to draw mehandi and asked her to apply mehandi.
Thereafter, the informant and her assistant Kinjal (PW2) went at JW
Marriott Hotel. Accused took them in one room, at fourth floor of the
said hotel. There were four foreigner ladies. The informant told them
about the mehandi charges to which the said ladies agreed. Until 02.00
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a.m. of 03/04/2017, they were applying mehandi. After completion of
mehandi work the ladies asked the informant to collect I.5,000/- from
the accused.
25. The informant (PW1) further deposed that, accused was
outside of the said hotel, they went there and demanded I.5,000/- with
him. But accused trying to pay only I.2,000/-. The informant demanded
I.5,000/- with accused, but accused refused the same therefore, she and
Kinjal (PW2) went inside the hotel, but the staff of the reception of the
hotel did not allow them to go in the room of foreign ladies. She further
deposed that, the receptionist made phone through intercom and called
at reception to the said ladies.
26. The informant (PW1) further deposed that, two out of the
four ladies came at reception, then the informant narrated the incident
and also told them accused is not ready to pay the amount, as agreed
and speaking irrelevant. The said ladies have given I.5,000/-, as
charges of mehandi and for ticket fare they additionally given I.1,000/-.
After taking amount from the said ladies they came out of the hotel. The
accused was standing there. Accused gave abuse as “Bhenchod” to
informant (PW1) and Kinjal (PW2).
27. Kinjal (PW2) initially due to lapse of time could not
recollect the actual incident, however, upon suggestions put by the Ld.
A.P.P. Shri Prasad Joshi for the State, she admitted that, the accused
abused them. The Investigating Officer (PW3) is formal witness, after
getting the offence for investigation he recorded the statement of
informant (PW1) and Kinjal (PW2). During his investigation he found
that, accused abused the informant in filthy language, therefore, he sent
chargesheet to the Court.
28. During the cross examination of informant (PW1) and
Kinjal (PW2) it has been tried to put the case by accused that, actually
mehandi order has been offered to Kinjal (PW2) and not to the
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informant (PW1). However, the said very fact has been denied by the
Kinjal (PW2). From the suggestions putforth by accused it reveals that,
the order of applying mehandi has been received by the informant
(PW1) and Kinal (PW2) at the instance of accused. Even the accused
has not denied his presence on the scene of offence, at the relevant
time. Therefore, now it is remains only to consider, whether accused
uttered the filthy word, which would insult the modesty of the woman.
29. In evidence the informant (PW1) categorically deposed
that, the accused abused her as “Bhenchod”. However, from the plain
reading of the F.I.R., as well as the statement of Kinal (PW2) recorded
by police, this particular abuse at the mouth of accused has not been
mentioned. Therefore, on the point of uttering filthy word, which insult
the modesty of informant, the F.I.R. (Exh.-5) cannot be said to be
corroborative to the testimony of the informant (PW1).
30. Therefore, in absence of specific abuse in the F.I.R., which
amounts to like uttering words with intend to insult the modesty of
informant, accused cannot be held guilty for the offence punishable
under section 509 of the Indian Penal Code. Therefore, I hold that, the
prosecution miserably failed to prove that, the accused used or uttered
the word “Bhenchod” with intend to insult the modesty of informant,
hence, I record my finding to the point No.1, as in the negative.
As to Point No.2 : -
31. The accused is charged with an offence punishable under
section 355 of the Indian Penal Code. For better appreciation of the
provision of section 355 of the Indian Penal Code I would like to quote
here section 355 of Indian Penal Code, which reads as under...
Whoever assaults or uses criminal force to any
person, intending thereby to dishonor that person,
otherwise than on grave and sudden provocation
given by that person, otherwise than on grave and
sudden provision given by that person, shall be
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punished with imprisonment of either description
for a term which may be extend to two years or
with fine or with both.
32. In order to prove the guilt of accused under section 355 of
the Indian Penal Code the prosecution has to prove that, the accused
assaulted or used criminal force. Further, the accused intended thereby
to dishonor the person assaulted for against whom criminal force was
used and the accused did so otherwise than on sudden and grave
provocation.
33. Ld. A.P.P. Shri Prasad Joshi for the State submits that,
accused raised quarrel with the informant (PW1) on the count of
charges of mehandi. He has uttered filthy words to informant and he
has spat on the face of the informant. There was no provocation at the
instance of informant (PW1) as well as by Kinjal (PW2). Ld. A.P.P. Shri
Prasad Joshi for the State further submits that, fact of spiting on the
face of informant has been categorically deposed by the informant
(PW1) as well as Kinal (PW2).
34. Further, Ld. A.P.P. Shri Prasad Joshi for the State submits
that, the said incident has been taken place at the gate of the hotel at
late night at around 03.00 a.m. Therefore, there is no possibility of
other persons remain present there. The defence putforth by accused
cannot be relied upon because the charges has already been paid by the
lady foreigner to the informant (PW1) and when the informant (PW1)
and Kinjal (PW2) left the hotel and reached at the gate, in order to go
to their home, at that time, accused came there and spat on the face of
the informant (PW1). The evidence of informant (PW1) as well as
Kinjal (PW2) is nowhere scattered in any manner. Therefore, accused
used the criminal force, which amounts to an assault with intend to
dishonor the informant. Therefore, accused is liable for punishment.
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35. Ld. A.P.P. Shri Prasad Joshi for the State in support of his
argument relied on the case of Sheodin V/s. Mt. Jumni reported in 1926
Cri. LJ 1003, where in it has been held that, in order to bring the case
under section 355 of the Indian Penal Code it was for the prosecution to
establish that,
accused did not receive grave and sudden
provocation from the person assaulted.
36. Per contra, Ld. Advocate Smt. Karuna Tiwari for accused
submits that, in order to extract more money from accused he has been
falsely implicated by the informant (PW1). No independent witnesses
have been examined by the prosecution. Evidence of Kinjal (PW2) is not
at all admissible because she is interested witness and deposing falsely
in order to assist the informant (PW1). As accused not paid I.10,000/-
to informant. Therefore, she has filed the false F.I.R. The assault or
criminal force is not at all proved by the prosecution. Therefore,
accused is entitled to get benefit of doubt.
37. By keeping in my mind the above provisions and arguments
advanced by both the parties, I would like to discuss on the point of
spiting by accused on the face of the informant.
38. It has came in the evidence of informant (PW1) that, after
receiving the charges from the foreign lady she and Kinjal (PW2) came
at the gate of the hotel JW Marriott. They were waiting for rickshaw. At
that time, the accused came there and started arguing with them in
vulgar language. At that time, the informant (PW1) persuaded him that,
they have received their charges, therefore, he shall leave. The accused
sat in the taxi and spat on her face. Due to the said act the informant
(PW1) and Kinjal (PW2) frightened and said incident had been
occurred, at around 03.00 a.m.
39. Kinjal (PW2) has categorically deposed that, when she and
informant/victim were waiting for rickshaw at the outside of the hotel,
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at that time, accused came there and abused them. The accused spat on
the face of informant. The evidence of Investigating Officer A.P.I. Shri
Kumbhar (PW3) supported to the version of the informant (PW1) and
he deposed that, during his investigation he found that, accused abused
informant in filthy language and spat on the person of the informant
(PW1).
40. It is to be noted that, during cross examination of
prosecution witnesses, nothing has been obtained by the defence, which
would be called contradictory to the prosecution case and benificial to
accused. The evidence of Kinjal (PW2) on the point of spit on the face
of informant (PW1), is corroborative to the evidence of informant
(PW1). Even the F.I.R. (Exh.-5) is corroborating the said fact. It is
further to be noted that, from the evidence of informant (PW1) as well
as Kinjal (PW2) it does not reflect that, they had given the provocation
to accused to spit on the face of the informant.
41. I would like to state here that, section Section 351 of the
Indian Penal Code given the meaning of ‘Assault’, which read as under,
Whoever makes any gesture, or any preparation
intending or knowing it to be likely that such gesture or
preparation will cause any person present to apprehend
that he who makes that gesture or preparation is about
to use criminal force to that person, is said to commit an
assault.
42. The explanation and illustration given to section 355 of
Indian Penal Code gave examples about what actual means by assault,
whereas section 355 of the Indian Penal Code provides punishment for
assault or criminal force with intend to dishonor person otherwise than
on grave provocation.
43. In present case, at hand the accused without any
provocation by the informant (PW1) as well as Kinjal (PW2), spit on the
face of the informant and said very fact has been proved by the
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prosecution beyond any reasonable doubt. Therefore, the essential
ingredients of section 355 of the Indian Penal Code have been made out
by the prosecution by adducing cogent evidence. The incident taken
place, at around 02.00 to 03.00 a.m., on 03/04/2017 at the gate of JW
Marriott hotel, at Juhu, Mumbai. Considering time of occurrence of the
said incident it is but natural that, nobody except witnesses and the
accused present at that place.
44. Therefore, I do not found any
force in the arguments
advanced by Ld. Advocate Smt. Tiwari that, no independent witnesses
has been examined by the prosecution. The evidence of informant
(PW1) is nowhere scattered in any manner on the point of spiting on
her face. The evidence of Kinjal (PW2) and the Investigating Officer
A.P.I. Shri. Kumbhar (PW3) is corroborative. The defence putforth by
accused is not at all probable, therefore, I hold that prosecution proved
that, accused committed an offence punishable under section 355 of the
Indian Penal Code. Hence, I record my finding to the point No.2 as in
the affirmative and on the point of sentence, I stop here to hear the
accused.
Date:20/02/2025.
SRD.
(A. B. Jadhav)
Judicial Magistrate, (First Class),
71st Court, Bandra,
Mumbai.
45. Ld. A.P.P. Shri Prasad Joshi for the State submits that, the
accused has committed an offence under section 355 of the Indian Penal
Code, for which the punishment of imprisonment of either description
which may extent to two years and fine or both, has been provided.
Therefore, accused be punished according to law by sentencing
maximum imprisonment.
46. Per contra, Ld. Advocate Smt. Karuna Tiwari for the
accused submits that, the accused is taxi driver and breadwinner of his
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family. Therefore, if the accused kept behind the bar then his family will
suffer irreparable loss. Therefore, she prayed that, lenient view be
taken, while awarding sentence.
47. The accused present before the Court. He submits that, he
has not committed any offence and he has been falsely implicated. He
further submits that, he is suffering from mouth cancer and the
treatment thereon is going on in Somayya Hospital. He submits that,
considering his physical condition, lenient view be taken, while
awarding the sentence.
48. The offence committed by accused is not only against the
informant but it is against the society. In our country spiting on the
public road is also prohibited and punishable under law. In present case,
at hand the accused spit on the face of informant (PW1), therefore, she
felt insult and it has came on record that, due to the said incident the
informant (PW1) and Kinjal (PW2) frightened. It is to be noted that, the
offence committed by accused is against women. Therefore, benefit
under the Probation of Offenders Act cannot be extended. The physical
condition of accused shows that, he has been under treatment for the
cancer disease. Now he is about 60 years old. Therefore, considering his
physical condition and his old age, I am of opinion that, the following
order will meet the ends of justice. In the result, I passed following
order.
ORDER
i. The accused viz. Ramprasad Mithailal Yadav/Gupta
is hereby acquitted of the offences punishable
under sections 509 of Indian Penal Code, as per
Sec. 248 (i) of Criminal Procedure Code.
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ii. The accused viz. Ramprasad Mithailal Yadav/Gupta
is hereby convicted for the offence punishable
under sections 355 of Indian Penal Code, as per
Sec. 248 (ii) of Criminal Procedure Code.
iii. The accused viz. Ramprasad Mithailal Yadav/Gupta
is hereby sentenced to sit in the Court till rising the
Court.
iv. The accused viz. Ramprasad Mithailal Yadav/Gupta
shall pay fine of I.10,000/- for the offence
punishable under section 355 of the Indian Penal
Code in default of payment of fine, accused shall
suffer simple imprisonment 01 (One) week.
v. Out of the fine amount I.9,000/- be given to
informant, as a compensation as per the provision
of section 357 of Code of Criminal Procedure.
vi. Bail bonds of the accused stands cancelled.
vii. The accused shall furnish bond under section 437-
A of Code of Criminal Procedure.
viii. Copy of judgment be given to accused free of cost.
ix. Judgment dictated and pronounced in open Court.
Date:20/02/2025.
SRD.
(A. B. Jadhav)
Judicial Magistrate, (First Class),
71st Court, Bandra, Mumbai.
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Dictated on :- 20/02/2025.
Transcribed on :- 20/02/2025.
Checked on :- 20/02/2025.
Signed on :- 20/02/2025.
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