Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.1702/PW/2018
Exh.10
MHMM190065892018
Form No.XXXII
Part 'A'
(Para 44 (I) of Chapter VI of Criminal Manual)
J U D G M E N T
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44TH COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY SUJITKUMAR C. TAYDE)
(Date of Judgment: 31st January, 2024)
Case No.1702/PW/2018
CNR No.MHMM190065892018
FIR/Crime No.130/2018
Police Station: Versova, Mumbai.
COMPLAINANT The State of Maharashtra
through the Station Incharge of
Versova Police Station, Mumbai.
REPRESENTED BY Learned A.P.P. Smt. Seema Mokal
ACCUSED Nadir Nasir Khan
Age – 35 Yrs., Occ. Nil,
R/o. Plot No.66, D/05,
Old Mhada, Char Bangala,
Versova, Andheri (W),
Mumbai.
REPRESENTED BY Learned Advocate Shri D. D. Kerkar
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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Part 'B'
(Para 44(ii) off Chapter VI of Criminal Manual)
Date of offence 26/03/2018
Date of FIR 26/03/2018
Date of chargesheet 26/06/2018
Date of framing of charges 01/03/2021
Date of commencement of
evidence
24/08/2023
Date of which judgment is
reserved
31/01/2024
Date of the judgment 31/01/2024
Accused Details
Rank of
the
accused
Name of
Accused
Date of
Arrest
Date of
Release on
Bail
Offences
charged
with
Whether
acquitted
or
convicted
Sentence
imposed
Period of
Detention
Undergone
during
Trial for
purpose of
Section
428 of
Cr.P.C.
1 Nadir
Nasir
Khan
02/04/2
018
02/04/2018 504 and
509 of the
Indian
Penal
Code
Convicted No No
Part 'C'
LIST OF PROSECUTION/DEFENCE/COURT WITNESSES
A. Prosecution:
RANK NAME NATURE OF EVIDENCE (EYE
WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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WITNESS, PANCH WITNESS,
OTHER WITNESS)
PW 1 Karuna Suresh Davne Informant (Exh.No.6)
PW 2 Sweta Jayesh Ladge Witness (Exh.No.8)
B. Defence witnesses, if any.
RANK NAME NATURE OF EVIDENCE (EYE
WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS,
OTHER WITNESS)
Nil Nil Nil
C. Court witnesses, if any.
RANK NAME NATURE OF EVIDENCE (EYE
WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS,
OTHER WITNESS)
Nil Nil Nil
LIST OF PROSECUTION EXHIBITS
Sr.
No.
Nature of Exhibit Exhibit No.
Nil FIR 07
JUDGMENT
(Delivered on 31/01/2024)
The accused stands prosecuted for having committed the
offence punishable under Section 504 and 509 of the Indian Penal
Code.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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The case of the prosecution in nutshell is as under :
2. The Government of Maharashtra alloted land to Gurukrupa
Welfare Society. This land is located in front of Versova Kiran Building,
Siddharth Nagar, Char Bangala, Versova. The said society works for the
welfare scheme of fishermen. The informant namely Karuna Davne and
the other members of that society used to dry their fishes in the said
land. The informant and other persons built their huts near the said
alloted land so that they could supervise and protect the said land.
3. On 26/03/2018, the accused turned up on the said land
and he asked the informant (P.W.1) and her daughter, Shweta Ladge
(P.W.2) as to why they had constructed their huts in the said land.
Thereafter, he raised quarrel with the informant and her daughter on
account of the said construction. The accused abused the informant in
filthy language like 'rq jaMh vkgsl Nhuky vkgsl'. The informant requested
him not to abuse them. But the accused again raised his voice and
started to take the photographs of the land and the huts. One Manohar
Singh tried to give better understanding to the accused. But the
accused did not pay any heed to the request made by the informant and
the said Manohar Singh. On the other hand, the accused again abused
the informant in abusive language i.e. 'rsjs ekW dh pwn'.
4. Being aggrieved by the criminal acts committed by the
accused, the informant lodged the report against the accused. On the
basis of the report lodged by the informant, the offence punishable
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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under section 504 and 509 of the Indian Penal Code came to be
registered against the accused vide Crime No.130/2018 in Police
Station Versova.
5. The further investigation of the said crime was handed over
to Maya Gawde, PoliceSubInspector who recorded the statements of
the witnesses. Having completed the investigation, the chargesheet
came to be filed under Section 173 of Cr. P.C. against the accused for
having committed the offence punishable under Section 504 and 509 of
the Indian Penal Code.
6. 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.
7. The charge for the offence punishable under section 504
and 509 of the Indian Penal Code was read over to the accused. He did
not plead guilty and claimed to be tried. Hence, the trial was proceeded
further.
8. In view of the incriminating evidence placed on record
against the accused, his statement was recorded under section 313 of
the Code of Criminal Procedure. The stand of the accused is of total
denial. According to him, the informant lodged false case against him.
9. In the backdrop of the prosecution case and the evidence
placed on record, the following points are formulated for my
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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determination. I record my findings thereon in the light of the evidence
led by the prosecution as under:
SR.NO. POINTS FINDINGS
1] Does the prosecution prove that on
26/03/2018 at about 16.30 hrs. at
Siddharth Nagar Zopadpatti, Versova, in
front of Kiran Building, Char Bangala,
Mumbai, the accused intending to insult the
modesty of the informant Karuna Suresh
Davne and her daughter Shweta Ladge
uttered obscene words by abusing them in
filthy language intending that same shall be
heard by the informant and her daughter
and thereby committed an offence
punishable under section 509 of Indian
Penal Code?
Proved
2] Does the prosecution prove that on the
same date, place and time, the accused
intentionally insulted the informant and
her daughter by abusing them and thereby
gave provocation to them intending or
knowing it to be likely that such
provocation will cause them to break
public peace and thereby committed an
offence punishable under section 504 of
Indian Penal Code?
Proved
3] What order ? The accused is
convicted for
the offence
punishable
under section
504 and 509 of
Indian Penal
Code as per the
final order.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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REASONS
AS TO POINTS NO. 1 AND 2:
10. These points are interconnected with each other and
common evidence is adduced on these points. Therefore, they are taken
up together for consideration and determination.
11. In order to bring home the guilt of the accused, the
prosecution examined the informant, Karuna Suresh Davne (P.W.No.1)
and the another eye witness, Sweta Jayesh Ladge (P.W.No.2). The case
is pending since last about five years. In spite of having ample
opportunity, the prosecution did not examine another witnesses. Hence,
having regard to the pendency of the case, it needs to be disposed of in
the light of evidence placed on record.
12. Before making the appreciation and marshalling of the
evidence, let us have a glance at the ingredients of the offence
punishable under section 509 of Indian Penal Code.
1 The accused uttered some words, or made some sounds or gesture
or exhibited any object or intruded upon the privacy of a woman;
2 The accused must have intended that the words so uttered or the
sound or gesture so made or the object so exhibited should be heard
or seen respectively by the woman;
3 The accused thereby intended to insult the modesty of the woman;
13. The term “modesty” is defined by the Hon'ble Supreme
Court in the case of Raju Pandurang Mahale V/s. State of
Maharashtra, (2004) 4 SCC, 371, as the essence of a womans modesty
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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is her sex i.e. modesty is a virtue which attaches to a female owing to
her sex. The ultimate test for ascertaining whether modesty has been
outraged is whether the action of the offender is such as could be
perceived as one which is capable of shocking the sense of decency of a
woman.
14. In order to bring home the guilt of the accused for the
offence punishable under section 504 of Indian Penal Code the
prosecution has to prove the following essential ingredients:
1 The accused intentionally insulted someone;
2 He thereby intended to give him/her provocation;
3 He knew that it was likely that such provocation would cause that
person to commit a breach of the peace or to commit any other
offence.
Keeping in mind the ingredients of section 504 and 509 of
Indian Penal Code as noted above, I proceed to make the scrutiny of the
evidence placed on record.
15. Having gone through the record, I heard the learned
advocates for both the sides. The learned APP Smt. Seema Mokal
submitted that the prosecution proved its case beyond reasonable
doubt. According to her, the alleged offence is against women and
therefore, the accused is liable to be punished.
16. Per contra, the learned advocate for the accused Shri. D.D.
Kerkar, vehemently argued that there was enmity between the accused
and the informant on account of possession of the land and the
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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construction made therein. As per his argument, this case is upshot of
the said quarrel. He further argued that the witnesses are interested
witnesses and therefore, their testimony cannot be believed. He
submitted that the prosecution utterly failed to prove its case and
therefore, according to him, the accused deserves to be acquitted.
Having regard to the argument advanced by learned advocate for both
the sides, I turn to make the scrutiny of evidence placed on record.
17. The informant, Karuna Davne (P.W.No.1) deposed that in
the year of 2018, she and her daughter were drying fishes in the plot in
Siddharth Nagar, Lokhandwala and at that time the accused came there
and abused them. According to her evidence, the accused uttered in
filthy language like “Rand”. She further testified that one unknown
person intermediated the matter, but the accused did not pay attention.
Thereafter, she lodged the report against the accused. In fact, the FIR
filed on record is duly proved by this witness.
18. In order to corroborate the oral testimony of the informant
(P.W.1), the prosecution examined the another eye witness who is
daughter of the informant namely Sweta Ladge (P.W.No.2). This
witness (P.W.No.2) specifically deposed that on the day of incident, she
and her mother were drying fish on the spot of incident and accused
came there. It has come in her evidence that the accused abused her
mother in filthy language i.e. “Ma Ki Chud, Ma Ka Boshra”. She further
testified that her mother lodged the report against the accused and
police recorded her statement. Thus, it appears that the oral testimony
of the informant is duly corroborated by the another eye witness who
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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was present at the time of the alleged incident.
19. The learned advocate for the accused, Shri D.D.Kerkar
vehemently argued that the witnesses examined by the prosecution are
interested witnesses. He further argued that the witness Sweta Ladge
(P.W.2) is daughter of the informant (P.W.1) and thus they are
relatives. Hence, according to him, their testimony cannot be believed.
But I am not inclined to accept his argument regarding the acceptance
of the evidence of these two witnesses because there is no rule which
can restrain the Court from accepting the testimony of the relative of
the another witness if such testimony is reliable.
20. Apart from this, in view of section 134 of the Indian
Evidence Act, no particular number of witnesses shall, in any case, be
required for the proof of any fact. In other words, only the quality of
the evidence is preferred rather than the quantity of the witnesses. It is
settled that the testimony of one single witness, if wholly reliable, is
sufficient to punish the accused. In such scenario, in my opinion, even
though the prosecution examined only two witnesses, yet their
testimony cannot be discarded if such testimony is cogent and reliable.
21. Having made the analysis of the evidence adduced by the
informant and the eye witnesses, it appears that both the witnesses
deposed about the culpable intention of the accused. In other words,
these witnesses (P.W.1) and (P.W.2) categorically deposed the obscene
words uttered by the accused on the spot of incident. It is needless to
say that such words (i.e.“Rand” & “Ma Ki Chud, Ma Ka Boshra”) prima
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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facie appears to be obscene and unparliamentary words. In my opinion,
these obscene words uttered by the accused specifically show the
intention of the accused. In other words, these words were uttered by
the accused with an intention to insult the modesty of the informant
who is woman.
22. It is pertinent to note here that the informant and the eye
witness were crossexamined at length. But except raising the fact
regarding the prior dispute between the accused and the informant, no
any material point was brought on record to disbelieve the testimony of
the witnesses. In fact, it is settled that prior dispute between the
witness and the accused plays a vital role in criminal justice. It is
admitted position that enmity is a double edged weapon which can be
used either by the accused or by the informant.
23. It is needless to say here that if the witness admits the prior
enmity with the accused, then such enmity may be the ground to prove
motive and intention of the accused. In other words, the enmity gives
rise to the motive and intention which are the material ingredients of
any crime including the offence punishable under section 504 and 509
of Indian Penal Code.
24. In the present case on hand, the informant (P.W.1) and the
eye witness (P.W.2) have categorically admitted that the accused used
to take photographs of the place where they had built their huts. It has
been further admitted by these witnesses that prior to the incident,
there was dispute between them and the accused in respect of the land
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 11 of 18 --
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where they used to dry their fish. Thus, the enmity or the prior dispute
between the accused and the witnesses is sufficient to the come to the
conclusion that the accused intentionally insulted the modesty of the
informant (P.W.1) by uttering the filthy words which were not only
heard by the eye witness but also by the another person who tried to
intermediate the matter. Thus, the prosecution has succeeded to prove
the fact that the accused uttered abusive words with an intention to
insult the modesty of the informant who is woman.
25. The Hon'ble Madras High Court has elaborated the term
“modesty” in the case of D. Vasanthi V/s. State [Crl.O.P.(MD)
No.8678 of 2017]. In this case, the Hon'ble Madras High Court held
that:
“The word 'modesty' as found in section 509 of Indian
Penal Code is for the protection of an attribute which is
peculiar to woman, as a virtue which attaches to a female
on account of her sex. Acts which are outrageous to
morality would be outrages to be the modesty of woman.
Words sound or gesticulation done with an intend to insult
the modesty or intrusion into her privacy or chastity or
such acts which could be essential ingredient to constitute
an offence under section 509 of Indian Penal Code”. (Para
No.15)
26. In the present on hand, the accused is alleged to have
uttered the abusive words which are against the morality of woman.
The informant is woman and the another eye witness is also woman.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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Thus, it appears that the accused has uttered the abusive words in the
presence of these two women. Moreover, the filthy language used by
the accused is sufficient to come to the conclusion that such abusive
word are outrages to modesty. Hence, I have not hesitation to hold that
the prosecution has succeeded to prove the material ingredients of
section 509 of Indian Penal Code.
27. So far as the ingredients of the offence punishable under
section 504 of Indian Penal Code are concerned, it is pertinent to note
here that the informant and the eye witness have specifically deposed
that the accused abused them in the place where the another person
intermediated the matter. In fact, the informant and the eye witnesses
have deposed the actual words used by the accused at the time of said
incident. Thus, it can be held that the accused intentionally insulted the
informant and gave provocation leading to the breach of the public
peace. In short, the prosecution has succeeded to establish the material
ingredients of section 504 of Indian Penal Code beyond reasonable
doubt.
28. The learned advocate for the accused Mr. D. D. Kerkar
vehemently argued that the prosecution did not examine the
investigating officer and therefore, the accused is entitled for acquittal.
But I am not impressed by his argument because the evidence adduced
by the eye witnesses has not been impeached in accordance with the
provision of Section 155 of the Indian Evidence Act. Apart from this,
it is settled position that non examination of investigating officer as
witness is of no consequences when the defence has not been able to
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 13 of 18 --
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shake the credibility of eye witnesses. In such scenario, in my opinion,
even though the investigating officer has not been examined in this
matter, yet the positive and reliable evidence cannot be discarded.
29. It would not be out of place to mention here that the said
incident occurred on 26/03/2018 at about 9.00 p.m. and the FIR came
to be lodged on the very day at about 9.55 p.m. Thus, it appears that
there is no delay in lodging FIR.
30. In the case of Jagannath Nikam V/s. State of
Maharashtra reported in Cr.LJ 1995 (795), the Hon'ble Bombay High
Court held that great importance is attached to lodging of prompt FIR
because it diminishes greatly chances of false implication of the accused
persons as well as that of informant being tutored.
31. In the backdrop of the ratio laid down in the citation
supra, this Court is of humble opinion that the fact of lodging prompt
FIR suggests that the accused must have intentionally insulted the
modesty of the informant by uttering the filthy words which were heard
by the informant and her daughter. The another reason to believe the
testimony of the informant and the eye witness is that no woman would
dare to depose such abusive words in public unless and until her
modesty had been insulted. Thus, having gone through the positive
evidence adduced by the prosecution, I have come to the conclusion
that the accused intentionally used abusive words to cause breach of the
peace. In short, the prosecution has proved the guilt of the accused
beyond reasonable doubt. Hence, I have no hesitation to hold that the
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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accused committed the offence punishable under section 504 and 509
of Indian Penal Code. Resultantly, I record my finding in affirmative for
point no.1 and 2.
32. The accused is present before the Court today. I explained
the accused that he is held guilty for the offence punishable under
section 504 and 509 of Indian Penal Code. He is further intimated that
the punishment for the offence punishable under section 504 of Indian
Penal Code may extend to two years or with fine or with both. He is
further made aware of the punishment prescribed for the offence
punishable under section 509 of Indian Penal Code. Thereafter, I asked
the accused to clarify his stand on the nature and quantum of the
sentence, if any. Hence, I take pause to hear the accused.
Sd/
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
DATE: 31.01.2024 44th Court, Andheri, Mumbai.
Judgment resumed on 31.01.2024 at 2.45 p.m.
33. The accused submitted that he is sole bread earning
member of his poor family. He further submitted that he is poor and
has been attending the Court since last five years. He prayed that
leniency may be shown while imposing the punishment. The learned
advocate for the accused, Shri D.D. Kerkar, also prayed to show
leniency to the accused while slapping the punishment.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 15 of 18 --
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34. Per contra, the learned advocate for the prosecution
vehemently argued that the accused committed the offence which is
against woman and public tranquility and therefore, heavy punishment
is liable to be imposed on the accused.
35. Having heard the learned advocates for both the sides on
the quantum of punishment, I perused the record.
36. In fact, the offence committed by the accused comes within
the ambit of offences affecting the public health, safety and morals. The
said offence is also against woman. Hence, having regard to the nature
of the offence committed by the accused, I am not inclined to extend
the benefits of probation as contemplated under the Probation of
Offender Act to the accused.
37. The present case on hand is pending since last five years.
During this long period, the accused might have known the
consequences of his wrongful act. The record shows that the accused
has no any criminal antecedent. He is about 37 years old. Hence,
having regard to the facts and circumstances of the case and the status
of accused, this Court is of humble view that leniency may be shown
while imposing punishment on the accused.
The logical corollary of my aforesaid findings leads me to pass the
following order:
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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O R D E R
1] The accused Nadir Nasir Khan, Age – 35 Yrs., Occ. Nil, R/o.
Plot No.66, D/05, Old Mhada, Char Bangala, Versova, Andheri
(W), Mumbai., is hereby convicted for the offence punishable
under Section 504 and 509 of the Indian Penal Code vide
section 248(2) of Indian Penal Code.
2] The accused is sentenced to suffer imprisonment till rising of
Court for having committed the offence punishable under
section 504 of Indian Penal Code.
3] The accused is sentenced to pay fine of Rs.500/ (Rupees Five
Hundred Only) for the offence punishable under section 509 of
Indian Penal Code. In default of fine, the accused shall undergo
simple imprisonment for 15 days.
4] The accused has not spent any period in the custody during the
investigation or trial. Hence, setoff under section 428 of the
Code of Criminal Procedure, 1973 is not given to the accused.
5] The copy of this Judgment be provided free of cost to the
accused immediately after it is prepared in view of section 363
(1) of the Code of Criminal Procedure, 1973.
6] The seized property (i.e. C.C.T.V. Footage) as shown in the
chargesheet be destroyed in accordance with law after the
appeal period is over.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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7] The accused is informed about his right of appeal against this
judgment.
8] The Judgment is dictated on dais and pronounced in open
Court.
Sd/
(Sujitkumar C. Tayde)
Date : 31.01.2024 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
Typed On: 31.01.2024
Signed On: 31.01.2024
spj
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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