Final Order 1

Order Details: Copy of Judgment
Pdf Text: -- 1 -- C.C.No.1819/PW/2023
MHMM180077172023 Received on : 11/10/2023
Registered on : 11/10/2023
Decided on : 22/12/2023
Duration : 00 Y. 02 M. 11 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.1819/PW/2023
b) The date of commission of
offence
: 25/09/2023
c) The name of the complainant if
any
: The State through Mahim police
station. C.R.No.476/2023.
d) The name of the accused persons,
parentage and residence
: Mohammad Ismile Kallu Shaikh,
Age – 51 years,
e) The offence complained of or
proved
: Under section 354, 354(B) 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 : Accused is convicted.
h) The date of such order : 22/12/2023
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Learned counsel for Prosecution : APP Mr. Kishor Patil for State
Ld. Counsel for Accused : Adv. Mr. A.K.Tiwari & Mr. P.P.Khot
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JUDGMENT
(Delivered on 22.12.2023)
1. The accused is charged with the offence punishable under
section 354, 354(B) of the Indian Penal Code,1860 ( for short 'IPC'.).
2. The case of prosecution in brief is as under----
On 25/09/2023 at about 2.00 p.m. the mother of the informant
had been to the neighbour's house to pay condolence. The informant and her
father i.e. accused were alone in the house. The father of the informant closed
the door from inside. The informant asked the accused why he has done so.
The accused without saying anything came from behind the informant when
she was standing, pressed the chest of the informant by tightly hugging her.
The informant tried to rescue in which her dress was torn from front side. The
accused said to the informant to remove pant and show him. The accused tried
to remove pant of the informant by pulling down. At that time someone
knocked the door of the house. The informant shouted loudly. The accused
opened the door and ran away. Then woman residing in the area by name
Shanti Rao and after her the mother of the informant entered in the said
house.
3. Earlier also the accused tried to hold the informant when her
mother was not at home. The accused tried to pull down her pant. The
accused abused the informant as she shouted. The informant has kept mum
about the earlier incidence as the mother of the informant is suffering from
heart disease. The informant called One Stop Center on 25/09/2023 and
lodged the report on 26/09/2023 to Police Station, Mahim.
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4. On the report of the informant offence was registered vide crime
No. 476/2023. Charge is framed against the accused at Exh.02. The contents
of the charge were read over and explained to the accused in vernacular
through Video Conference. The accused pleaded not guilty and claimed to be
tried.
5. The prosecution has examined in all four witnesses (P.W.No.1)
informant (Exh.05), (P.W.No.2) Samina mother of the informant (Exh.07),
(P.W.No.3) Shanti Deepak Rao (Exh.09), neighbour of the informant and
(P.W.No.04) Samadhan Himmatrao Chaudhary, Investigating Officer (Exh.10).
6. 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.
7. Heard Ld. A.P.P. and Ld. Advocate for the accused. Perused the
record. Following points arose for determination. Findings are recorded for
reasons to follow.
Sr.No POINTS FINDINGS
1] Whether the prosecution proved that the accused
on 25/09/2023 at 02.00 hrs. at room No.09, near
Raheja Hospital,Sion Mahim Link Road,
Mahim(W), Mumbai used criminal force to a
woman i.e. the informant by holding her in both
hands from behind pressed her chest with
intention and knowledge to outrage her modesty
and thereby committed an offence punishable
under Section 354 of Indian Penal Code?
Yes
2] Whether the prosecution proved that the
accused on the aforesaid date, time and place Yes
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used criminal force to the informant with the
intention of disrobing her by tearing her Kurta
asking her to disrobe by pulling her pant and
thereby committed an offence punishable under
Section 354-B of the Indian Penal Code?
3] What order? Accused is convicted.
R E A S O N S
AS TO POINT NO.1 :
8. 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. 'Assault' and 'criminal force' are one of the main ingredients
of Section 354 of I.P.C. Section 351 of I.P.C. provides definition of
'asssault' as--
351. Assault--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.
'Criminal force' has been defined under Section 350 of I.P.C. as --
350. Criminal force-- whoever intentionally uses force
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to any person, without that person's consent, in order to
the committing of any offence, or intending by the use of
such force to cause, or knowing it to be likely that by the
use of such force he will cause injury, fear or annoyance
to the person to whom the force is used, is said to use
criminal force to that other.
9. The evidence of (P.W.No.1) the informant discloses that the
incidence was happened on 25/09/2023 at about 2.00 p.m. the door of the
house was open, the mother of the informant had gone to pay condolence.
The accused entered in the house at that time the informant was drinking
water. The accused came from behind, hugged her by both the hands and
pressed her chest. No reason was given by the accused why he closed the
door. The dress of the informant teared from the chest. The accused started
taking down her pant. AT that moment door of the house was knocked by the
neighbour by name Shanti Mavshi. The accused opened the door, pushed to
Smt. Shanta and ran away. Then mother of the informant came. The
informant narrated the incidence to both of them. The informant admitted the
contents of FIR (Exh.06) as correct. In cross-examination the informant
admitted that accused is her father and he committed same act prior to the
incidence during lockdown. The cross-examination does not have any
material or circumstance to disbelieve or discredit the version of the injured
who is victim of the act of her biological father.
10. The continuation of the incidence narrated by the injured
(P.W.No.3) Shanti Rao deposed that on 25/09/2023 at about 2.00 p.m. she had
been to the ouse of the informant to do work. The door of the house of
informant was knocked and she continued to knocked as (P.W.3) Shanti heard
the shouts of the informant for help. The door was opened by the informant,
the accused pushed her and ran away. The informant was crying and her
Kurta was torn from front side. The informant narrated the incidence to
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(P.W.3) Shanti and then to the mother of the informant when she came to the
house of the informant. In cross-examination of (P.W.3) Shanti Rao no
discripancy or embellishment is found to wash out her statement in
examination-in-chief.
11. The evidence of (P.W.No.2) Samina is clear that when she
reached house from condolence function the informant was alone in the house.
The neighbour by name Mrs. Shanta came to call her. Then they both returned
to the house of the informant. The informant was crying . The informant told
(P.W.3) Shanti that her father caught hold her from behind and pressed her
chest. The colthes were torn when the informant tried to rescue herself.
(P.W.2) Samina stated that during lockdown the accused has done same act
with the informant. The informant did not disclose at that time as (P.W.2)
Samina is suffering from heart disease and other health problems. This time
the informant disclosed the incidence to (P.W.2) Samina about as it was very
serious. Mere suggestion without any material in cross-examination of
(P.W.2) Samina is not sufficient to discredit her testimony.
12. Ld. Advocate for the accused pointed out descripancies in the
evidence of prosecution witnesses during the arguments by submitting that
evidence of prosecution witness is not reliable and credible. The descripancies
pointed out by Ld. Advocate for the accused are, firstly, the informant deposed
that their door was opened by the accused while (P.W.3) Shanti Rao stated that
door was opened by the informant. Secondly, (P.W.3) Shanti Rao deposed that
the informant shouted for help while the informant has not stated in her
evidence that she was shouting for help. Thirdly, the evidence of (P.W.2)
Samina that (P.W.3) Shanti Rao came to call her then they both came to the
house of the informant while the informant and (P.W.3) Shanti stated that
(P.W.2) Samina came home of her own. On the other hand Ld. A.P.P.
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submitted that the evidence is credible by referring to the cross-examination of
the witness. In appreciation of evidentiary value of descripancies it will be
beneficial to refer to the observation of the Hon'ble Supreme Court in
Mritunjoy Biswas Vs. Kuti Biswas 2013 Cr.L.J. 4212 (SC), it is well settled
in law that the minor discrepancies are not to be given undue emphasis and the
evidence is to be considered from the point of view of trustworthiness. The
test is whether the same inspires confidence in the mind of the Court. If the
evidence is incredible and cannot be accepted by the test of prudence, then it
may create a dent in the prosecution version. If an omission or discrepancy
goes to the root of the matter and ushers in incongruities, it needs no special
emphasis to state that every omission cannot take place of a material omission
and, therefore, minor contradictions, inconsistencies or insignificant
embellishments do not affect the core of the prosecution case and should not
be taken to be a ground to reject the prosecution evidence. The omission
should create a serious doubt about the truthfulness or creditworthiness of a
witness. It is only the serious contradictions and omissions which materially
affect prosecution case but not every contradiction or omission.
Then in Subodh Nath and Anr. v. State of Tripura; (AIR 2013 SC
3726) it is observed that, Once Court finds that the eye witness account is
corroborated by material particulars and is reliable, it cannot discard his
evidence only on the ground that there are some discrepancies in the evidence
of witnesses. As has been held by the Court in State of Rajasthan v. Smt. Kalki
and Another; (1981) 2 SCC 752, in the deposition of witnesses there are
always normal discrepancies due to normal errors of observation, loss of
memory, mental disposition of the witnesses and the like. Unless, therefore,
the discrepancies are material discrepancies so as to create a reasonable doubt
about the credibility of the witnesses, the Court will not discard the evidence
of the witnesses".
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13. The evidence of the informant is free from any shadow of doubt.
Likewise the evidence of (P.W.2) Samina and (P.W.3) Shanti Rao is also
corroborates the narration of incidence of holding the informant by the
accused from behind, pressing her chest. The evidence of (P.W.3) Shanti Rao
and the informant is in corroboration to each other the manner in which
accused ran awy by giving push to the (P.W.3) Shanti Rao after opening of the
door.
14. Further the torn clothes are produced before the Court seized by
(P.W.4) Samadhan Himmatrao Chaudhary during investigation. The
informant identified the torn Kurta found teared from front side fron the chest.
The evidence about seizure and identification of Kurta by the informent is at
all not challenged by the accused. This corrobrative, credible and
unchallenged version of the informant and other prosecution witness is
sufficient to hold that the descripancies pointed out by the Ld. Advocate of the
accused are not material to discard the testimony of the prosecution witness.
15. From the evidence discussed above the act of the accused should
satisfy the ingredients of the offene punishable under Section 354 of I.P.C..
As per evidence of the informant the accused caught hold her in his hand from
behind proves 'assault' as defined under Section 351 of I.P.C. and 'criminal
force' defined under Section 350 of I.P.C. The modesty of a woman is said to
be the sense that a woman feels when faced with any act that is intended to
outrage her modesty. The psychological modesty of a woman is said to be
her innate sense of self-respet and dignity. The modesty of a woman is
protected a woman does not sense of shame or embrassment when treated
respectfully. Any part of the body of a woman touched with intention to have
some kind of intimacy certainly amounts to attack on the modesty of a
woman. In State of Punjab Vs. Majaur Singh, AIR 1967 SC 63 the
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Hon'ble Supreme Court observed that, modesty is the quality of being
modest which means as regards woman, decent in manner and conduct,
scrupulously chaste, though in the Code the word 'modesty' has not been
defined. The ultimate test for determining whether modesty has been outraged
is whether the action of the offender as such can be perceived as one which is
capable of lowering the sense of decency of a woman. The chest of any
woman is touched without consent , certainly amount to an attack on her
decency resluting in outraging her modesty.
16. Intention and knowledge are important factors. The accused
pressed the chest of the informant by closing door when she was alone proves
intention and knowledge of the accused to outrage the modesty of the
informant. The act of the accused and the evidence of prosecution witness
proved the ingredients of the offence punishable under Section 354 of
I.P.C.are satisfactorily established on record. Finding to Point No.1 is
recorded in the affirmative.
AS TO POINT NO.2 :
17. The offence punishable under Secton 354-B of I.P.C. is in
respect of disrobing a woman. For appreciation of the evidence Section 354-B
of I.P.C. is reproduced below---
18. From the reading of the above section, intention of disrobing or
compelling a woman to be naked are the gist of the offence punishable under
Section 354-B of I.P.C.. In reference to this the informant has specifically
deposed that accused has started pulling down her pant after pressing her chest
by both the hands. The act of pulling down Pant covers within the meaning
defination of 'criminal force' provided under Section 350 of I.P.C.. The
intention to pull down pant of the informant is to disrobe the informant. There
cannot be any other witness to the incidence as it has taken place in clsoed
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door of the house. The accused has not produced any material or elicited
anything from the cross-examination of the infromant to disbelieve or discard
the testimony of the informant.
19. In absence of any probable reason of false implication of the
accused, the evidence of the informant is credible and satisfies the ingredients
of Section 354-B of I.P.C.. For these reasons the accused is held guilty for the
offence punishable under Section 354-B of I.P.C. Finding to Point No.2 is
recorded in the affirmative.
20. Heard the accused and Ld. Advocate of the accused and Ld.
A.P.P.. The accused has submitted that he is innocent and he may be awarded
with minimum sentence of imprisonment. The Ld. Advocate for the accusd
submitted that minimum sentence of imprisonment be awarded. The accused
is a poor person. The age of the accused is also required to be considered and
leniency be shown in awarding sentence of imprisonment. This argument is to
be appreciated in view of the facts and cricumstances of the case.
21. Admittedly, the accused is the father of the informant. The
offence is committed by the accused is serious in nature victimised his
daughter. The offence committed by the accused has tarnished pious and
affectionate relation of father and daughther. For this reason the accused is not
entitled to benefit of Probation of Offenders Act.
22. A father for daughter is not less than God. In the case on hand
the accused who is protector has become destroyer of decency and purity of
his daughter. The offences committed in a close relationship against woman
has to be dealt with deterrance. More leniency has no place where lust has
over powered mind of a father resulting unbearable shock to the daughter. In
the facts and circumstances of the case the accused is liable to be convicted
with term of imprisonment as well as fine.
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23. The accused submitted that his financial condition is not sound.
The victim is the daughter of the accused and dependent on the earnings of the
accused. Any amount of compensation directing the accused to pay will result
in unpaid compensation with the fact that the financial condition of the
accused is not sound. The compensation should be paid to the victim so that
she could meet her livelihood and expenses of the education. It will be in the
interest of victim to recommend The District Legal Services Authority,
Mumbai to award compensation to the victim under Section 357-A of the
Code of Criminal Procedure.
24. As per Section 354 of IPC punishment is provided with
imprisonment of either description for a term which shall not less than one
year but which may extend to five years and shall also liable to fine. As per
Section 354-B the accused is liable to be punished with imprisonment of either
description for a term which shall not less than three years but which may
extend to seven years and shall also liable to fine. In the facts and
circumstances of the case accused is liable to suffer Rigorous Imprisonment of
One year and fine of Rs.5,000/- for the offence punishable under Section 354
of I.P.C. and Rigorous Imprisonment of three years and fine of Rs.5,000/- for
the offence punishable under Section 354-B of I.P.C.. Following order is
passed.
O R D E R
1) Accused Mohammad Ismile Kallu Shaikh is convicted vide
Section 248(2) of The Code of Criminal Procedure,1973 for the offence
punishable under Section 354 and 354-B of The Indian Penal Code,1860.
2) Accused Mohammad Ismile Kallu Shaikh to suffer Rigorous
Imprisonment of 01(One) year and to pay fine of Rs.5,000/- for the offence
punishable under Section 354 of The Indian Penal Code,1860. In default of
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payment of fine the accused shall suffer further Rigorous Imprisonment of
01(One) month.
3) Accused Mohammad Ismile Kallu Shaikh to suffer Rigorous
Imprisonment of 03(Three) years and to pay fine of Rs.5,000/- for the
offence punishable under Section 354-B of The Indian Penal Code,1860. In
default of payment of fine the accused shall suffer further Rigorous
Imprisonment of 01(One) month.
4) The substantive sentences shall run concurrently.
5) 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.
6) The copy of the judgment shall be forwarded to the The District
Legal Service Authority, Mumbai for award of compensation to the victim
under Section 357-A of the Code of Criminal Procedure.
7) The copy of the Judgment be forwarded to the District
Magistrate vide Sec.365 of the Code of Criminal Procedure for further
compliance.
8) The copy of the judgment shall be given to the accused free of cost.
( Dictated and Pronounced in open Court. )
Sd/-
Date:-22 /12/2023. (K.H.Thombre)
Addl. Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai
vnh
Delivered on : 22/12/2023
Dictated on : 22/12/2023
Typed on : 22/12/2023
Signed on : 22/12 /2023
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