Final Order 1

Order Details: Copy of Judgment
Pdf Text: -- 1 -- C.C.No.1614/PW/2023
MHMM180069062023 Received on : 11/09/2023
Registered on : 11/09/2023
Decided on : 21/12/2023
Duration : 00 Y. 03 M. 10 D.
Exh.No.- 15
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
(Presided over by K.H. Thombre)
JUDGMENT
(As per Section 355 of Code of Criminal Procedure)
a) The Serial number of the case : C.C. No.1614/PW/2023
b) The date of commission of
offence
: 29/07/2023
c) The name of the complainant if
any
: The State through Mahim police
station. C.R.No.413/2023.
d) The name of the accused persons,
parentage and residence
: Gulam Hussain Shaikh,
Age – 61 years,
Occupation- Garage
R/o. Room No.1276, 4th Floor,
Bldg. B MHB, Mahim Fisherman
Colony, Mahim(W), Mumbai-16
e) The offence complained of or
proved
: Under section 354, 509, 506 of
Indian Penal Code.
f) The plea of the accused and his
examination, if any
: The Accused pleaded not guilty and
claimed to be tried.
g) The Final Order : The accused is convicted of the
offence punishable under Section
354 and 509 of IPC.
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The accused is acquitted of the
offence punishable under Section
506 of IPC.
h) The date of such order : 21/12 /2023
=====================================================
Learned counsel for Prosecution : APP Mr. Kishor Patil for State
Ld. Counsel for Accused : Adv. Mr. P.P.Khot
=====================================================
JUDGMENT
(Delivered on 21.12.2023 )
1) The accused is charged with the offence punishable under
section 354, 509, 506 of the Indian Penal Code,1860 ( for short 'IPC'.).
2) The case of prosecution in brief is as under----
The accused and the informant are residing in the same building
and are neighbours. The accused abuses the informant and resident of the
building without any reason and harasses them. On 29/07/2023 at about
09.10 p.m. the informant and her maternal aunt Rajni were talking by standing
in a passage in front of the room of the informant. At that time the accused
came there by wearing undergarments only and swiped his hand from the
buttock of the informant. The accused abused the informant, “ Rand Chinal,
Tula Uthavin, Tumhare Betiko Marunga, Rand logoko chodunga”. One of the
neighbour Gopal Naykar came there and he tried to take away the accused.
The maternal aunt of the informant called 100 number for help of police.
Thereafter police came on the spot and the informant lodged the report of the
incidence at police station against the accused.
3) On the report of the informant offence was registered vide crime
No. 413/2023. Charge is 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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through Video Conference. The accused pleaded not guilty and claimed to be
tried.
4) The prosecution has examined in all four witnesses (P.W.No.1)
informant (Exh.04), (P.W.No.2) Gopal Ramchandra Naikar (Exh.09), eye
witness (P.W.No.3) Rajani Raghunath Chinchkar, eye witness (Exh.10) and
(P.W.No.04) Vikas Mahadev Inje, Investigating Officer (Exh.13).
5) Statement of the accused under Section 313(1)(b) of The Code
of Criminal Procedure 1973 is recorded at (Exh.14). The defence of the
accused is that he is innocent and falsely implicated in this case.
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
accused on 29/07/2023 at 21.10 hrs. in the
passage in front of room of the informant at
Fisherman Colony, Mahim(W), Mumbai-16,
used criminal force to a woman i.e.
informant by hitting her on her buttock
intending to outrage her modesty and
thereby committed an offence punishable
under Section 354 of Indian Penal Code?
Yes.
2] Whether the prosecution proved that
accused on the aforesaid date, time and
place intending to insult the modesty of
informant, abused her by uttering “Rand
Chinal, Tula Uthavin, Tumhare Betiko
Marunga, Rand logoko chodunga” intending
that the same shall be heard and seen by the
informant and thereby committed an offence
punishable under Section 509 of the Indian
Penal Code?
Yes.
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3] Whether the prosecution proved that
accused on the aforesaid date, time and
place committed criminal intimidation by
threatening the informant with intent to
cause alarm to her and thereby committed
an offence punishable under Section 506 of
the Indian Penal Code?
No.
4] What order?
The accused is convicted of
the offence punishable
under Section 354 and 509
of IPC.
The accused is acquitted of
the offence punishable
under Section 506 of IPC.
R E A S O N S
AS TO POINT NO.1 AND 2:-
7) Beginning with the evidence of the informant. The accused is
the neighbour of the informant. The accused use to pass comment and push
the informant. On 29/07/2023 at about 9.00 to 9.25 p.m. the informant and
her maternal aunt Mrs. Rajni (P.W.3) were standing in a gallary. Both were
talking to each other. The accused started abusing by uttering "Randi, Chinal,
Chod dunga logoko". The accused was abusing by wearing undergarments
only. The acused swiped his hand on the buttock of the informant and left.
This incidence is narrated by (P.W.2) Gopal Naykar that at about 9.00 to
9.25 p.m. he heard noise of abusing by the accused. Gopal Naykar came out
of the house nd saw that accused was abusing to the informant by wearing
undergarments. He separated the informant. One of the eye witness (P.W.3)
Rajani deposed that she and the informant were standing in the gallary and
were talking. At that time accused came in undergarments only and was
abusing 'Madarchod' and further abuses not able to tell. She moved by the
side. The accused swiped his hand on the buttocks of the informant and left.
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In evidence of (P.W3. )Rajni stated words as filthy language uttered by the
accused is 'Madarchod'. By deposing this word (P.W.3) Rajni stated that she is
not able to depose the filthy words due to decency. The words of abuses has
not been disclosed by (P.W.2) Gopal Naykar in his evidence only stated that
accused was abusing in filthy language.
8) In cross-examination the informant denied suggestion that no
incidence has happened. The informant stated that she do not know how
many people gathered at the time of incidence. At the place of incidence there
was clear light from lamp. It is admitted by (P.W.No.2) Gopal Naykar in
cross-examination that so many people were gathered at the time of incidence.
The suggestion about non-happening of incidence has specifically been denied
by the (P.W.2) Gopal Nayakar. The suggestion that (P.W.3) Mrs. Rajani being
relative of the informant and there was quarrel in between the accused and the
informant she is deposing false is denied by (P.W.3) Mrs. Rajani.
9) On scrutiny of the evidence of prosecution witneses to discredit
their testimony the accused failed to explain why the witnesses are deposing
against the accused. The accused has failed to produce any circumstances or
evidence to establish what was the enimity and for what reason there was
enimity in between the accused and the prosecution witnesses. The argument
of Ld. Advocate for the accused that the witnesses are interested and no
independent witness has been examined is not convincing for the reason that
the testimony of the witnesses cannot be discarded merely having relation
with the informant. The evidence is to be qualified and not quantified.
Number of witnesses is not the ground to reject evidence inspiring confidence
and corroborative. In absence of any suspecion and evidence to discredit the
testimony of prosecution witnesses, the evidence stands to the test of proof of
happening of the incidence alleged by the prosecution.
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10) The evidence must satisfy the ingrediengs of the offence
charged against the accused. The offence punishable under Section 509 of
I.P.C. provides that accused intending to insult the modesty of a woman,
uttered any word, any sound or gesture, or exhibits any object intending that
such words 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 is liable for
punishment. In the case of State of Punjab Vs. Major Singh (1967), Hon’ble
Supremen court defined ‘woman’s modesty’ as the essence of her sex, “the
modesty of an adult female is writ large on her body. Young or old, intelligent
or imbecile, awake or sleeping, the woman possesses a modesty capable of
being outraged”. The English Oxford dictionary further defines the word
‘modesty” as “womanly propriety behaviour.” It is, therefore, clear that the
legislature deliberately used the word “modesty” in Sections 509 and 354 of
the Indian Penal Code,1860 to extend protection to an automatic attribute that
is peculiar to women. Whether an act outrages or insults the modesty of a
woman is seen according to the standards of morality prevailing at that time in
society.
11) The informant has specifically deposed the words used by the
accused "Randi, Chinal, Chod dunga logoko". All the three witnesses the
informant, (P.W.2) Gopal Naykar and (P.W.3) Rajni deposed that accused was
abusing in filthy language by wearing undergarments only. The manner in
which accused appeared by wearing clothes and the abuses given proved
intention of the accused to attack on the sense of decency of the informant.
The accused by uttering these words deposed by the informant are of a such
nature that those words certainly amounts to referring a woman as unchaste
and lowering her decency. The words corroborates to the FIR though not
exactly same but to large extent. There cannot be explanation of same words
used at the time of incidence and before the Court. A human cannot be treated
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as a machine to have photogenic memory that too after gap of time. The
accused has failed to lead any evidence or to bring on record any circumstance
is establishes that his intention was different other than outraging the modesty
of informant by using abusive words as stated by the informant and the
witnesses. For this reason it is held that the accused has committed an offence
punishable under Section 509 of Indian Peanl Code.
12) The evidence of the informant and (P.W.3) Rajani is consistent
and in corroboration to the act of the accused of wiping his hand on the
buttock of the informant. In Mrs. Rupan Deol Bajaj and Anr. Vs. Kanwar
Pal Singh Gill and Anr., AIR 1996 SC 309, slapping a woman on her
posterior amounted to outraging of her modesty within the meaning of
Sections 354 and 509 of Indian Penal Code. The facts of the case are
identical and squarely applicable to the facts of the present case. There is no
hesitation to hold that accused outraged modesty of the informant and thereby
committed an offence punisable under Section 354 of I.P.C..
AS TO POINT NO.3:-
13) The informant has stated that after appearance of (P.W.2) Gopal
Naykar at the place of incidence he tried to pacify them. Accused threatened
him by giving threats that “Kat Dunga”( will cut), “Utha dunga”( will kidnap)
and “Fek dunga”(will throw). This version of the informant is not
corroborated by (P.W.2) Gopal Naykar that he separated the informant, then
they approached police station where the informant lodged the report.
(P.W.No.3) Rajani was present at the time of incidence since start till leaving
of the accused from the place of incidence. (P.W.3) Rajani has failed to utter
single word about the threats given by the accused. The evidence of two eye
witnesses is not in corroboration to the evidence of the informant about giving
threats to the evidence of the informant about giving threats. The offence of
criminal intimidation cannot be proved in absence of threat to cause criminal
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intimidation. It certainly creates doubt in the allegations of threats given by
the accused to the informant as alleged. For these reasons it is held that
prosecution failed to prove the offence punishable under Section 506 of I.P.C.
against the accused.
14) Heard the accused in person and and Ld. Advocate of the
accused. It is submitted by the accused that his economic condition is poor.
His wife and children are staying in village out of Mumbai. He be released on
bond and the sentence which he has undergone be considered as a punishment
by giving set off. Ld. Advocate for the accused submitted that accused be
given set off of the period undergone by him. There is no one to look after the
accused and his family is residing in a village, leniency be shown in awarding
sentence of imprisonment as well as fine. Ld. A.P.P.. submitted that maximum
sentence of imprisonment together with fine and compensation be awarded to
the accused.
15) The accused has committed an offence which can be categorized
as a sexual offence against a woman. The accused not only uttered abusive
words but also swiped his hand on the buttock of the informant. The accused
has not given any justified reason as to why he has acted in a manner which
amounts to an offence. The accused is a matured person committed offence
against woman is not entitled to have the benefit of Probation of Offenders
Act. The balancesheet of the sentence of imprisonment can be evaluated on
the basis of mitigating and aggravating circumstances appeared on the record.
The mitigating circumstanes appeared on record are his economic condition
and his wife and children are staying in a village. The aggravating
circumstances against the accused are that the accused has outraged modesty
of woman but also abused in a filthy language by wearing only
undergarments. These aggravating circumstances do not justify any lienency
to be awarded to the accused. In view of the mitigating circumstances
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appearing on record the accused is liable to be punished upto Rigorous
Imprisonment of one year and fine for the offence punishable under Section
354 of The Indian Penal Code. The accused is also liable to be convicted for
the offene under Section 509 of The Indian Penal Code for sentence of Simple
imprisonment upto one year and fine.
16) At the stage of sentenceing of accused victim of the offence
cannot be overlooked. There should be award of reasonable and adequate
compensation to the victim of a offence. In the fact of the case that the
informant was not only abused in a public place but also had an attack on her
decency. To meet the compensation an amount of Rs.5,000/-(Rupees Five
Thousand only) will be reasonable and adequate in view of the economical
condition of the accused. For these reasons following order is passed.
O R D E R
1) Accused Gulam Hussain Shaikh is convicted vide Section
248(2) of the Code of Criminal Procedure,1973 for the offence punishable
under Section 354 and 509 of The Indian Penal Code,1860.
2) Accused Gulam Hussain Shaikh to suffer Rigorous
Imprisonment of 01(One) year and to pay fine of Rs.5,000/-(Rupees Five
Thousand only) for the offence punishable under Section 354 of the Indian
Penal Code. In default of payment of fine the accused shall suffer further
Rigorous Imprisonment of 01(One) month.
3) Accused Gulam Hussain Shaikh to suffer Simple Imprisonment
of 01(One) year and to pay fine of Rs.5,000/-(Rupees Five Thousand only) for
the offence punishable under Section 509 of the Indian Penal Code. In default
of payment of fine the accused shall suffer further Simple Imprisonment of
01(One) month.
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4) Accused Gulam Hussain Shaikh is acquitted vide Section
248(1) of the Code of Criminal Procedure, 1973 for the offence punishable
under Section 506 of The Indian Penal Code.
5) The substantive sentence shall run concurrently.
6) The accused is an under trial prisoner. The period undergone by
the accused shall be given set of under Section 428 of the Code of Criminal
Procedure.
7) The accused shall pay compensation of Rs.5,000/-(Rupees Five
Thousand only) to the informant uner Section 357(3) of The Code of Criminal
Procedure, 1973.
8) The copy of the Judgment be forwarded to the District Magistrate
vide Sec.365 of the Code of Criminal Procedure for further compliance.
9) The copy of the judgment shall be given to the accused free of
cost.
( Dictated and Pronounced in open Court. )
Sd/-
Date:-21/12/2023. (K.H.Thombre)
Addl. Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai
vnh
Delivered on : 21/12/2023
Dictated on : 21/12/2023
Typed on : 21/12/2023
Signed on : 21/12/2023
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