Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.875/PW/2018
Received on : 21/03/2018
Registered on : 21/03/2018
Decided on : 05/08/2023
Duration : 05 Y. 04 M. 15 D.
Exh. : 08
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44TH COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY SUJITKUMAR C. TAYDE)
(JUDGMENT U/SEC. 355 OF CODE OF CRIMINAL PROCEDURE)
CNR NO.MHMM190038652018
(a) The serial No. of the case; : C.C.No.875/PW/2018
(b) The date of commission of
the offence;
: 02/05/2017
(c) The name of the complainant
(if any);
: The State (Versova Police
Station in C. R. No. 139/2017).
(d) The name of the accused
person and his parentage and
residence;
: 1] Irfan Iqbal Shaikh,
Age – 35 Yrs.
Occupation Auto Driver,
R/o.Shastri Nagar Chawl,
Near Kavthekhadi, Yari Road,
Versova, Sat Bangala,
Andheri (W), Mumbai.
2] Mohd. Rafique Mehmood
Shaikh,
Age – 50 Yrs.
Occupation – Business,
R/o. Room No.103, 1st Floor,
Ballaleshwar Society,
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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2 C.C.No.875/PW/2018
Yari Road, Sat Bangala,
Andheri (W), Mumbai.
3] Mohd. Kasim Asad Saeed,
Age – 42 Yrs.,
Occupation – Grocery Shop,
R/o.Shastri Nagar Chawl,
Near Kavthekhadi, Yari Road,
Versova, Sat Bangala,
Andheri (W), Mumbai.
4] Abubakar Ahmed Baswan,
(Abated)
(e) The offence complained of
or proved ;
: Under Section 354, 323, 504
r/w. 34 of the Indian Penal
Code.
(f) The plea of the accused and
his examination (if any);
: The accused pleaded not guilty.
(g) The final order; : The accused no.1 to 3 are
acquitted.
(h) The date of such order; 05/08/2023
Learned APP for the State Mrs. Seema Mokal,
Learned Advocate for all the accused Mr. Ghag,
J U D G M E N T
( Delivered on 05/08/2023. )
The accused persons have been chargesheeted for the
offence punishable under Section 354, 323, 504 r/w. 34 of the Indian
Penal Code.
The case of the prosecution in nutshell is as under :
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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3 C.C.No.875/PW/2018
2. On 01/05/2017 at about 19.00 the informant Rukhsana
was fetching water from public tap. Due mistake the water tap was
kept open and hence her neighbour Nasira got angry. On 02/05/2017
at about 19.00 hrs. accused no.1 along with other accused persons
quarreled with her husband. The accused no.2 pushed her back. The
accused no.3 assaulted her husband with hand and accused no.4
touched her breast and tired to outrage her modesty.
3. Being aggrieved by the atrocities committed by the accused
persons, the informant lodged oral report on 03/05/2017 in the police
station Versova. Her report was reduced into writing and the offence
punishable under Section 354, 323, 504 r/w. 34 of the Indian Penal
Code came to be registered against the accused persons vide crime
no.139/2017. Further investigation was conducted by the PoliceSub
Inspector Yogesh Shirsat.
4. The investigating officer visited the spot of incident. He
recorded the statements of the witnesses. Having completed the
investigation, the chargesheet came to be filed against the accused
persons under Section 173 of Cr. P.C. against the accused for having
committed the offence punishable under Section 354, 323, 504 r/w. 34
of the Indian Penal Code.
5. Having secured the presence of the accused, all the
documents filed alongwith the chargesheet were supplied to the
accused under Section 207 of Cr. P.C.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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4 C.C.No.875/PW/2018
6. The charge for the offence punishable under Section 354,
323, 504 r/w. 34 of the Indian Penal Code was read over to the
accused. They did not plead guilty. Hence, the trial was conducted.
7. In the backdrop of the prosecution case and the evidence
placed on record, the following points are formulated for my
determination. I record my findings thereon in the light of the evidence
led by the prosecution.
POINTS FINDINGS
1] Does the prosecution prove that from
02/05/2017 at about 19.00 hrs.at Shastri
Nagar, Near Kavthekhadi, Yari Road,
Versova, Sat Bangala, Andheri (W),
Mumbai, the all accused in furtherance of
their common intention, used criminal force
to informant Ruksana Siraj Shaikh, a
woman, intending to outrage her modesty
and thereby committed an offence
punishable under Section 354 r/w. 34 of the
Indian Penal Code?
Disproved
2] Does the prosecution prove that on the
same date, place and time, all the accused
in furtherance of their common intention
voluntarily caused hurt to informant and
her husband and thereby committed an
offence punishable under Section 323 r/w.
34 of Indian Penal Code?
Disproved
3] Does the prosecution prove that on the
same date, place and time, all the accused
in furtherance of their common intention
intentionally insulted the informant and
her husband and thereby gave them
provocation intending that such
provocation would cause them to break
Disproved
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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public peace and thereby committed an
offence punishable under Section 504 r/w.
34 of the Indian Penal Code?
4] What order ? The accused
No.1 to 3 are
acquitted as per
final order.
REASONS
AS TO POINTS NO. 1 TO 3:
8. These points are interconnected with each other.
Therefore, they are taken up together for consideration and
determination.
9. In order to bring home the guilt of the accused for the
offence punishable under section 354 of Indian Penal Code, prosecution
has to prove the following ingredients
i] The women was assaulted or subjected to use of assault
criminal force on her;
ii] The intention of the accused was to outrage her modesty; and
iii] The accused knew that her modesty will be outraged thereby.
10. The prosecution has examined the informant/complainant
only in this matter in order to prove the guilt of the accused. Thus, the
entire edifice of the prosecution case rests upon the testimony of the
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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6 C.C.No.875/PW/2018
informant/complainant (P.W.1). So let us scan the evidence placed on
record.
11. The informant/complainant namely Ruksana Siraj Shaikh
testified that she knows the accused persons as they are her
neighbourers. On 01/05/2017 an quarrel took place between her and
the accused on account of taking water. She deposed that on the next
day she asked the accused about the quarrel and hot talk took place
between them and therefore, she lodged report and FIR Exh.6 and
Exh.No.7. Moreover, she deposed that the police did not read over the
averments made in the FIR. Thus, this star witness did not support the
prosecution and resiled from her statement made before the
investigating officer. Therefore, the complainant was cross examined at
length. But no incriminating material was brought on record against the
accused.
12. At the outset, it is pertinent to note here that the statement
of the accused under Section 313 of Cr. P.C. is dispensed with since
there is no incriminating evidence against the accused placed on record.
13. In fact, the informant/complainant (P.W.1) categorically
admitted the fact that the compromised took place between them out of
the Court and she does want to proceed further with this matter. In
such circumstances, it can be inferred that the informant/complainant
did not support the prosecution to prove the charge levelled against the
accused persons.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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14. In the present case on hand, the prosecution did not
examine another victim and eye witnesses. So also the prosecution did
not prove the spot of incident. There are material contradiction and
omission in the evidence adduced by the informant/complainant. The
prosecution did not examine the investigating officer to remove such
contradiction and omission. Thus, the evidence placed on record falls
short to prove the guilt of the accused persons beyond reasonable
doubt. In such circumstances, I have no hesitation to record my finding
in negative for points no. 1 to 3.
The logical corollary of my aforesaid findings leads me to
pass the following order:
ORDER
1] The accused No. Irfan Iqbal Shaikh, accused no.2 Mohd.
Rafique Mehmood Shaikh, accused no.3 Mohd. Kasim Asad
Saeed are acquitted of the offences punishable under Section
354, 323, 504 r/w. 34 of the Indian Penal Code vide Section
248 (1) of the Code of Criminal Procedure.
2] Bail bonds of the accused No.1 to 4 stand cancelled.
3] In the chargesheet no article is shown to be seized in this
offence. Hence, there is no order in this regard.
4] The accused is directed to execute P.R. Bond of Rs.5,000/
(Rupees Five Thousand Only) each vide Section 437–A of the
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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Code of Criminal Procedure to appear before the higher Court
as and when such Court issues notice in respect of appeal are
petition filed against this judgment.
5] The Judgment is transcribed directly on the computer.
6] The Judgment is pronounced in open Court.
(Sujitkumar C. Tayde)
Date : 05.08.2023 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
spj
Typed On: 05.08.2023
Signed On: 05.08.2023
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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