Final Order 1

Order Details: Copy  of Judgment
Pdf Text: – 1 – C.C.NO.974/PW/2018
Received on 03/04/2018
Registered on : 03/04/2018
Decided on : 23/03/2023
Duration : 04 Y. 11 M. 20 D.
Exh. : 11
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44th COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY A. I. SHAIKH)
(JUDGMENT U/SEC. 355 OF CODE OF CRIMINAL PROCEDURE)
(CNR NO.:MHMM190042492018)
(a) The serial No. of the case; : C.C.NO.974/PW/2018
(b) The date of commission of
the offence;
: 04/01/2018
(c) The name of the
complainant
(if any);
: The State (Versova Police Station
in C. R. No. 03/2018).
(d) The name of the accused
persons and their
parentage and residence;
: Vishram Heerji Patel,
Age 66 Yrs.
Occupation – Nil,
R/o. Flat No.13,
Heena Building,
Ghatkopar, Mumbai.
(e) The offences complained of
or proved ;
: Under Sections 509 of the Indian
Penal Code r/w. Section 67 of
Information Technology Act.
(f) The plea of the accused
and their examination (if
any);
: The accused pleaded not guilty
(g) The final order; : The accused is acquitted.
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(h) The date of such order; : 23/03/2023
Ms. Seema Mokal, APP for the State.
Mr. Namey, Advocate for the accused.
J U D G M E N T
(Delivered on 23/03/2023. )
The accused is prosecuted for the offence punishable under
Section 509 of the Indian Penal Code r/w. Section 67 of Information
Technology Act.
2. It is the case of the prosecution that informant was sitting
to see the photos on her whatsapp at 16.08 hrs. At that time one
unknown person had sent obscene photos and video from his mobile
no.9819516058 to her mobile. She shown that photos and video to her
husband and her husband made phone call to that number and asked
'Kaun Bol Raha Hai'. Therefore, from other side replied “Main Vishram
Harji Patel Bol Rahan Hoon”. Thereafter, her husband asked him “Maze
Patniche Mobile Numberchya Whatsappwar Ashlil Photo Va Video Ka
Pathavile”. Therefore, accused told “Ashlil Photo Va Video Mi Pathavile
Asun Tumhala Kai Karayache Te Kara”. Hence, she lodged report
against the accused.
3. On the basis of the report given by the informant, crime no.
03/2018 came to be registered against the accused. During
investigation I.O. drawn seizure and personal search panchanama in
presence of panch witnesses. He arrested the accused. During further
investigation I.O. recorded statement of witnesses. After completion of
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investigation filed chargesheet.
4. The charge is framed against the accused for the above
mentioned offence. The accused pleaded not guilty and claimed to be
tried. The prosecution has examined four witnesses in total. Statement
of the accused under Section 313 of the Code of Criminal Procedure is
recorded. The defence of the accused is of total denial.
5. The points for determination alongwith my findings
thereon as under :
POINTS FINDINGS
1] Does the prosecution prove that the
accused intending to insult the modesty
of informant Meherbanu Firoz
Mamdani, sending obscene photos and
obscene video clips through your
mobile no. 9819516058 on the mobile
phone no.9833404716 on whatsapp of
informant intending that same shall be
seen by her?
In the negative
2] What order ? The accused is
acquitted
R E A S O N S
AS TO POINT NO. 1 :
6. The prosecution has examined total four witnesses in this
case i.e. Meherbano Firoz Mamdni, informant (P.W.1), Firoz Ali Mohd.
Ali Mamdani, (P.W.2), Natwarlal Chimanlal Solanki, panch witness
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(P.W.3) and Rohit Vitthal Bhise, investigating officer (P.W.4).
7. Meherbano Firoz Mamdni, informant (P.W.1) deposes at
Exh. 04 that incident occurred prior to six years. Accused had sent
obscene photos and messages on her mobile. She had filed complaint
Exh.5 in the police station. She had also given her mobile to the police.
8. During her crossexamination she denied that accused
never send any obscene photos and messages and police had told her
that accused had sent messages.
9. Firoz Ali Mohd. Ali Mamdani, (P.W.2) deposes at Exh.6
that incident occurred prior to six years. His wife told him that she has
received obscene photos and videos on her mobile. They have filed
complaint in the police station and also given mobile of his wife to the
police station. Police had called the accused as the said number was
used by him.
10. During his crossexamination he admitted that the police
stated them that accused is using that phone. He denied that his wife
has falsely stated that she has received obscene videos and photos.
11. Natwarlal Chimanlal Solanki, panch witness (P.W.3)
deposes at Exh.6 that he do not know anything about the incident.
Police never called him as a pancha.
12. Rohit Vitthal Bhise, investigating officer (P.W.4) deposes at
Exh.7 that he was attached to Versova police station as a PSI from the
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period of 2014 to 2018. Incident occurred on 06/01/2018. He had
recorded the FIR as per the version of informant at Exh.8. During the
investigation he seized the mobile of informant and send it to forensic
laboratory. He had arrested the accused. Thereafter, the mobile of
accused was also seized and prepared seizure panchanama Exh.9. He
had also recorded the statement of husband of informant. Thereafter,
he filed chargesheet against the accused.
13. During crossexamination he denied that he had not seized
any mobile and he had not sent said mobiles to forensic laboratory. He
further denied that he was prepared false seizure panchanamas in the
present case and he had filed false chargesheet against the accused.
14. I have carefully gone through the record. Informant, (P.W.1
and P.W.4) are formal witness. P.W. 2 is the hearsay witness and PW.3
is a panch witness. The prosecution failed to adduce any direct or
reliable evidence to prove the case of prosecution. Hence, I hold that
the prosecution failed to prove guilt of the accused. Hence, I answer
point No.1 in the negative.
AS TO POINT NO.2:
15. The prosecution failed to prove guilt of the accused beyond
reasonable doubt. Therefore, the accused is liable to be acquitted. In
the result, in answer to Point No.2, I pass the following order.
O R D E R
1. The accused Vishram Heerji Patel is hereby acquitted of the
offence punishable under Section 509 of the Indian Penal Code
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r/w. Section 67 of the Information Technology Act vide Section
248 (1) of the Code of Criminal Procedure.
2. Bail bond of the accused stand cancelled.
3. The accused to execute P.R. Bond of Rs.15,000/ (Rupees
Fifteen Thousand only) vide Section 437–A of the Code of
Criminal Procedure for appearance before the higher court, if
said court issues notice to him for his appearance in the matter
in which present judgment is challenged, if any.
4. Seized muddemal property i.e. one Mobile Phone of Panasonic
company be returned to the accused after its due identification
and verification after the appeal period is over.
The Judgment is transcribed directly on the computer and
pronounced in open Court.
Mumbai ( A. I. Shaikh )
Metropolitan Magistrate,
Date:23/03/2023 44 th Court, Andheri, Mumbai.
spj
Typed on : 23/03/2023
Signed on : 23/03/2023
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