Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C. No.211/PW/2019
Judgment
Received on : 15 01 2019
Registered On : 15 01 2019
Decided on : 30 03 2024
Duration : Y M D
05 02 15
Exhibit : 36
IN THE COURT OF
THE METROPOLITAN MAGISTRATE,
63rd COURT, ANDHERI, MUMBAI.
(Judgment U/sec. 355 of Cr. P.C.)
(Presided over by R. D. Dange)
Delivered on : 30/03/2024
a) The Serial number of the
case
: 211/PW/2019
(CNR No.MHMM19-000846-2019)
b) The date of the commission
of offence
: 15/04/2018
c) The name of the
complainant if any
: State (D.N. Nagar Police-Station,
C.R.No.196/2018
d) The name of the accused
person his parentage and
residence
: Shankar Mewalal Gupta
Age: 35 yrs, Occu.:
R/at : Room No.336 Junaid Nagar,
C.D. Barfiwala Road, Andheri (W),
Mumbai.
e) The offence complained of
or proved
: Offence punishable under Section
354, 509 and 323 of I.P.C.
f) The plea of the accused and
his examination if any
: Accused pleaded not guilty.
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Judgment
g) Final order : Accused is convicted.
h) The date of such order : 30/03/2024
1] Considering the prosecution case, following points
arise for my consideration and I record my findings thereon for
the reasons to follow :
Sr.
No.
POINTS FINDINGS
1] Whether prosecution prove that accused
used criminal force intending to outrage
the modesty of informant and thereby
committed an offence punishable u/s.354
of IPC ?
Yes
2] Whether prosecution prove that accused
insulted the modesty of informant by
uttering words “rq D;k djsxh] HkkslMh eS
rsjh xkaM ekj nqaxk” intending that same
shall be heard by her and thereby
committed an offence punishable u/s.509
of IPC?
Yes
3] Whether prosecution prove that accused
voluntarily caused hurt to the informant
by fist blows and thereby committed an
offence punishable u/s.323 of IPC?
Yes
4] What order? Accused is
convicted.
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Judgment
R E A S O N S
AS TO POINT NOS.1 AND 2:
2] Prosecution has examined in all three witnesses to
prove the guilt of accused. It has relied upon first report
(Exh.18) and Arrest panchanama (Exh.22) to support it's case.
3] Accused has examined only one witness i.e. his wife
on his behalf. He has relied upon copy of charge-sheet (Exh.34)
to supports his defence.
4] Following points are necessary to be proved by the
prosecution to held accused guilty for the offence under Sections
354 and 509 of IPC :
Section 354 of IPC :
(i) Accused used criminal force against a woman:
(i) by using criminal force he outraged the modesty of
her
Section 509 of IPC :
(i) Accused insulted a woman ;
(ii) The insult was caused by uttering some
words, or making some sound, or gesture or
exhibiting any object so as to be heard or seen
by such women or ;
(iii) by intruding upon the privacy of such women;
(iv) He committed above criminal act with intention to
insult the modesty of women.
5] Rupadevi (P.W.1) is an informant and alleged victim
of the case. She has given evidence that incident occurred on
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Judgment
15/04/2018 at about 11.00 a.m. in her house. She testifies that
she know accused and he is her brother-in-law. She deposes that
accused reside on the upper floor of her house. She states that
daughter of accused beat her daughter, so she talked to her. She
says that at that time accused came there and tore her blouse,
pulled her saree and abused by word “rq D;k djsxh] HkkslMh eS rsjh
xkaM ekj nqaxk”. She says that she tried to escape, she came out
running, accused followed her, he caught her from behind and
pressed her from backside. According to her, four persons from
the locality saved her. She says that her saree was tore. She
narrated the incident to her husband by making phone call. She
deposes that her husband came and took her to Cooper Hospital.
She next says that she firstly went to police station and then to
the Cooper Hospital. She took treatment as indoor patient there
for three days. She has proved her first report (Exh.18). She
had identified the accused before the Court.
6] Ganeshkumar (P.W.2) is husband of informant and
older brother of accused. According to him, incident occurred
on 15/04/2018 at about 11.00 a.m. in his house. He says that
her wife narrated incident to him by making phone call. He
states that he went to the police station by telling his wife to
come there. He says that police referred his wife to the hospital
for treatment. He states that accused had torn blouse of his wife,
abused her and beat her. He next states that his wife took
treatment for three days in the hospital.
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7] Rokade (P.W.3) is an investigation officer of the
case. He has given evidence that during investigation he has
recorded statement of witnesses. He further says that he
arrested accused and prepared panchanama (Exh.22) for the
same. According to him, there was ample evidence found in the
investigation against accused. So he charge-sheeted him.
8] D.W.1 in her cross-examination admits that there
was quarrel between her and P.W.1 on 15/04/2018. She denies
remaining suggestions that her husband abused P.W.1 and tore
her blouse.
9] Heard A.P.P. He has submitted that P.W.1 has
narrated the words by which accused had insulted her and has
explained the act by which he had outraged her modesty. He
has further submitted that evidence of P.W.1 is not shaken in her
cross-examination. He has canvassed submission that sole
testimony of P.W.1 can be relied upon to convict the accused. He
has prayed to convict the accused.
10] P.W.1 in her cross-examination says that the house
where she resides is in the name of her father-in-law. She says
that there was no partition of said house and her father-in-law
had not executed any Will Deed of it. She concedes that wife of
accused had filed complaint against her and her husband on
same date and the offence under Section 509, 323 and 504 was
registered against them. She admits that prior incident there
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used to be quarrel between children of accused and her and she
used to go to the police station to lodge the police complaint for
it.
11] P.W.2 in his cross-examination says that he was at
work when the incident occurred. He admits that he did not
witness the incident and his wife narrated the same to him. He
says that the house where he resides is in the name of his
deceased father. He says that his father is no more. He testifies
that his father had not executed any Will Deed of said house. He
admits that wife of accused had lodged complaint against him
and his wife on the same date.
12] P.W.3 in his cross-examination says that other
brothers of P.W.2 resides in surrounding in one locality. He says
that accused filed complaint against P.W.1 and P.W.2 on the same
date. He states that there were previous quarrels between P.W.1
and accused. He admits that he did not record statement of any
independent witness and did not collect any C.C.T.V. Footage.
13] D.W.1 in her evidence says that on the date of
incident, P.W.1 beat her son with stick. She further says that
P.W.1 beat her with stick on her head and she sustained injury
due to the same. She says that she took treatment in Cooper
Hospital and lodged complaint against P.W.1 and P.W.2 at D.N.
Nagar police station on the same date. Charge-sheet of case filed
by her is at (Exh.34). She narrates that P.W.1 has filed false case
against her husband to give counterblast to the case filed by her.
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14] Heard advocate for accused. He has submitted that
informant and accused are close relatives and there is dispute
over ancestral house between them. He has next submitted that
husband of P.W.1 had beaten wife of accused firstly and
therefore, she had lodged complaint against him at police
station firstly. He has also submitted that prosecution has not
examined any independent witness to support its case. He has
further contended that prosecution has failed to prove the case
against accused beyond reasonable doubt. He prays to acquit the
accused.
15] Evidence of P.W.1 that accused insulted her modesty
by uttering words “rq D;k djsxh] HkkslMh eS rsjh xkaM ekj nqaxk” find
place in her first report (Exh.18). Her evidence on said aspect is
corroborated by her recitals in first report. Her evidence that
accused tore her blouse is also corroborated by her contention in
first report. Her evidence that accused insulted her by uttering
above obscene words is not shaken in her cross-examination.
Her further evidence that accused tore her blouse is also not
shattered in her cross-examination. So called tore blouse
appears not to have been seized by the police. Merely, because
the blouse has not been seized, oral evidence of P.W.1 cannot be
looked with suspicion. There is omission in her testimony that
accused followed her, caught her and pressed from backside. It
is settled principle of law that maxim
falsus in uno, falsus in
omnibus has no application in India. It is the duty of the court to
separate the chaff from the grain. The Court is expected to
accept the reliable evidence and discard unreliable. Her
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testimony that accused followed her, caught her and pressed
from backside is not reliable and trustworthy. However, her
testimony that accused insulted her by uttering the words “rq
D;k djsxh] HkkslMh eS rsjh xkaM ekj nqaxk” and used criminal force to
her intending to outrage her modesty is reliable and trustworthy.
Evidence of P.W.2 appears to be of hearsay nature. Hearsay
evidence is a weak kind of evidence. So, no much weight can be
given to his evidence. Evidence of P.W.3 is of formal nature.
16] Section 134 of the Indian Evidence Act lays down
that no particular number of witness shall in any case be
required for the proof of any fact. Therefore, it is permissible for
a Court to record and sustain conviction on the evidence of a
solitary witness provided the evidence tendered by such witness
is cogent, reliable and in tune with probabilities and inspired
implicit confidence. Therefore, submission of defence counsel
that prosecution has not examined any independent witness has
no merit. Place of evidence has been proved through testimony
of P.W.1. Therefore, non examination of spot panch and proof of
spot panchanama is not fatal to prosecution case.
17] P.W.1 has admitted in her cross-examination that
there was quarreling between children of accused and her
children prior to incident. It also appears from copy of charge-
sheet (Exh.34) and evidence of D.W.1 that she had filed
complaint against P.W.1 and P.W.2 on same date for the offence
under Section 324, 323, 509, 504 r/w.34 of I.P.C. It appears that
there was quarreling between D.W.1 and P.W.1 and P.W.2 on the
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date of incident. It is settled position that mere enmity even if it
is proved, cannot be a ground to discard the evidence of witness,
if the such evidence found to be reliable. No woman will put her
character on stake for such previous quarreling. Accused has not
brought any circumstances on record to discard evidence of
P.W.1. Therefore, submission of defence counsel to the effect
that evidence of P.W.1 is not reliable only due to enmity between
her and accused has no merit.
18] Evidence of P.W.1 corroborated by recitals in first
report (Exh.18), appears to be reliable and trustworthy. It
inspires the confidence about commission of offence under
Section 354 and 509 of IPC by accused. Therefore, I am of the
considered opinion that prosecution has succeeded to prove the
point Nos.1 and 2 against the accused. So, I answer point Nos.1
and 2 as “Yes”.
AS TO POINT No. 3:
19] Following points are necessary to be proved by the
prosecution to held accused guilty for the offence under Sections
323 of IPC :
(i) Accused voluntarily caused hurt to the informant.
20] P.W.1 has given evidence that accused No.1 gave fist
blow on her head. She says that she took treatment in Cooper
hospital for three days. Her evidence on said aspect is
corroborated by her recital in first report (Exh.18). Her
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testimony on said point is not shattered in her cross-
examination. Prosecution has not brought on record any medical
paper regarding so called treatment taken by P.W.1. It has also
not examined any medical officer to show the same. However,
examination of medical officer and the proof of medical
certificate is not necessary to prove an offence under Section
323 of I.P.C. Definition of hurt provided in Section 319 reads
thus, whoever causes bodily pain, disesse or infirmity to any
person is said to cause hurt. Therefore, it is clear that if someone
causes bodily pain to another, that itself is sufficient to hold that
he caused hurt to him. It does not appear from record that there
was any provocation on the part of P.W.1 to accused to commit
the offence. Evidence of P.W.1 is reliable and trustworthy.
21] In the light of aforesaid discussion, I am of the
considered opinion that prosecution has proved an offence 323
of IPC against accused. Therefore, I answer point No.3 as ‘Yes’.
AS TO POINT No.4 :
22] In view of finding recorded against point Nos.1 to
3, I hold accused guilty for offences under Section 354, 509 and
323 of I.P.C. and stop here my judgment to hear him on the
point of quantum of sentence.
Date : 30/03/2024
Sd/-
Shri. R.D. Dange
Metropolitan Magistrate,
63rd Court, Andheri, Mumbai.
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23] Accused submits that he is poor. He does not submit
anything further on the point of quantum of sentence. Holding
advocate Shri. Harsh Pandey submits that accused may be
shown leniency while awarding sentence.
24] Heard Ld.APP Shri. Samrat patil. He submits that
accused may be sentenced to severe punishment.
25] It is trite that nobody can claim the benefit of
section 3 and section 4 of the Probation Offenders Act as a
matter of right and the court has to pass appropriate orders in
the facts and circumstances of each case having regard to the
nature of offence, it’s general effects on the society and the
character of the offender etc.
26] There are no allegation of previous conviction
against accused. However, it cannot be ignored that accused has
committed crime against his near relatives. It appears that
accused was of 35 years age on the date of offence. It means he
was having sufficient knowledge of consequence of his act.
Punishment with imprisonment for not less than one year but
which may extend to five years and fine is provided for the
offence under Section 354 of I.P.C. Punishment upto
imprisonment for three years and fine is provided for offence
punishable under Section 509 of I.P.C. Punishment upto
imprisonment for one year or with a fine extending to one
thousand rupees or both is provided for offence punishable
under Section 323 of I.P.C.
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27] Considering nature of offence, punishment provided
for the same, the circumstances in which it is committed, age of
the accused at the time of offence and above discussion, accused
is not entitled to benefit of Probation of Offenders Act.
28] In view of all these discussions, I proceed to pass
following order.
ORDER
A] Accused is convicted as per section 248(2) of Code of
Criminal Procedure of the offence punishable under
Sections 354 of I.P.C. and is sentenced to simple
imprisonment for one year and fine of Rs.1,000/- (Rupees
One Thousand Only) in default to suffer S.I. for ten days.
B] He is further convicted as per section 248(2) of Code of
Criminal Procedure of the offence punishable under
Sections 509 of I.P.C. and is sentenced to simple
imprisonment for one month and fine of Rs.1,000/-
(Rupees One Thousand Only) in default to suffer S.I. for
ten days.
C] He is further convicted as per section 248(2) of Code
of Criminal Procedure of the offence punishable under
Sections 323 I.P.C. and is sentenced to pay fine of
Rs.1,000/- (Rupees One Thousand only) in default to
suffer S.I. for ten days.
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D] He shall surrender his bail bonds.
E] Copy of order be given to the accused free of cost.
(Judgment dictated and pronounced in the open court)
Date : 30/03/2024
Sd/-
Shri. R.D.Dange
Metropolitan Magistrate,
63rd Court, Andheri, Mumbai.
pkk
Dictated on : 30/03/2024
Transcribed on : 30/03/2024
Signed on : 30/03/2024
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