Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.1510/PW/2018
Exh.11
MHMM190066142018
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
44TH COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY SUJITKUMAR C. TAYDE)
(Date of Judgment: 3rd September, 2024)
Case No.1510/PW/2018
CNR No.MHMM190066142018
FIR/Crime No.430/2017
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 Shivaji Lattu Sahu,
Age 42 Yrs,
Occupation Auto Rickshaw Driver,
R/o.Room No.41, Chirekhan Nagar,
Kadamwadi, Vakola,
Santaruz (E), Mumbai.
REPRESENTED BY Learned Advocate Shri Ramlal
Kushwaha
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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Part 'B'
(Para 44(ii) off Chapter VI of Criminal Manual)
Date of offence 06/12/2017
Date of FIR 06/12/2017
Date of chargesheet 05/06/2018
Date of framing of charges 11/09/2019
Date of commencement of
evidence
24/07/2023
Date of which judgment is
reserved
03/09/2024
Date of the judgment 03/09/2024
Accused Details
Rank
of the
accuse
d
Name
of
Accuse
d
Date
of
Arrest
Date of
Release
on Bail
Offence
s
charged
with
Whether
acquitted
or
convicted
Senten
ce
impos
ed
Period
of
Detentio
n
Underg
one
during
Trial for
purpose
of
Section
428 of
Cr.P.C.
1 Shivaji
Lattu
Sahu
06/12/2
017
06/12/20
17
509 and
323 of the
Indian
Penal
Code
Convicted Yes No
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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Part 'C'
LIST OF PROSECUTION/DEFENCE/COURT WITNESSES
A. Prosecution:
RANK NAME NATURE OF EVIDENCE (EYE
WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS,
OTHER WITNESS)
PW 1 Informant – Gayatri Babul
Das
Exh.No.4
PW 2 Witness – Usha Vasant
Wagh
Exh.No.5
PW 3 Investigating Officer
Ganesh Vadhane
Exh.No.6
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
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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LIST OF PROSECUTION EXHIBITS
Sr.
No.
Nature of Exhibit Exhibit No.
1 Complaint and FIR 5 & 6
JUDGMENT
(Delivered on 03/09/2024)
The accused stands prosecuted for having committed the
offence punishable under Section 509 and 323 of the Indian Penal
Code.
The case of the prosecution in nutshell is as under :
2. The informant, Gayatri Babul Das took one auto rickshaw
bearing no.MH03BY3041 on rent and she was travelling thereby on
06/12/2007. According to the prosecution, the accused was driving the
said auto rickshaw rashly and negligently at the relevant time. Since
the informant was having back pain, she requested the accused to drive
the said auto rickshaw slowly. But he did not pay attention. Even the
accused did not notice the speed breakers and continued to drive the
same in a manner so rash or negligent as to endanger human life. On
the very day at about 6.15 p.m., when the said auto rickshaw came near
Satyam Electronics, Char Bangala Market, Saint Luise Convent Road,
Versova, she asked the accused to stop the said auto rickshaw. At that
time, the accused pushed her in a fit of anger and abused her by saying
“Tu Niche Utar, Tu Madarchod Hai, Chhinal Hai, Bhosdi Hai”. The
accused not only stopped here but also he voluntarily caused hurt to the
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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informant and torn her cloth. Hence, being aggrieved by the indecent
behaviour and the atrocities caused by the accused, the informant
immediately dialed the phone number 100 to call the police for help.
The concerned police staff arrived at the spot of the incident and they
took the accused to the police station. Thereafter, the informant lodged
the report against the accused in the Police Station Versova, Mumbai at
about 20.30 hrs. on 06/12/2017. On the basis of this report, the
offence punishable under section 509 and 323 of Indian Penal Code
came to be registered against the accused vide Crime No.430/2017 in
Police Station Versova, Mumbai.
3. The further investigation of the said crime was handed over
to Shri Ganesh Vadane, PoliceSubInspector who recorded the
statements of the witnesses. After completion of the investigation, the
chargesheet came to be filed under Section 173 of Cr. P.C. against the
accused persons for having committed the offence punishable under
Section 509 and 323 of the Indian Penal Code.
4. 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.
5. The charge for the offence punishable under section 509
and 323 of the Indian Penal Code was read over to the accused. He did
not plead guilty. Hence, the trial was conducted.
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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6. In view of the incriminating evidence placed on record, the
statement of the accused under section 313 of the Code of Criminal
Procedure came to be recorded wherein the accused took the stand that
he has been falsely implicated in this matter. The accused neither
stepped into witness nor did he produce any evidence.
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
adduced by the prosecution as under:
SR.NO. POINTS FINDINGS
1] Does the prosecution prove that
06/12/2017 at about 19.00 hrs. at Chaar
Bangala Market, Opp. Satyam Electronics,
St. Luies Convent Road, Versova, Andheri
(W), Mumbai intending to insult the
modesty of the informant Kum. Gayatri
Babul Das uttered words by abusing her
obscene language intending that same shall
be heard by the informant 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
voluntarily caused hurt to the informant
and thereby committed an offence
punishable under section 323 of Indian
Penal Code?
Proved
3] What order ? The accused is
convicted as
per the final
order.
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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REASONS
AS TO POINT NO. 1 :
8. In order to bring home the guilt of the accused, the
prosecution has examined the following witness:
Sr. No. Name of the witness Exhibit No.
PW 1 Informant – Gayatri Babul Das 4
PW 2 Witness – Usha Vasant Wagh 5
PW 3 Investigating Officer – Ganesh
Vadhane
6
9. In spite of having ample opportunity, the prosecution did
not examine another witnesses. Hence, having regard to the pendency
of the case, this case needs to be disposed of in the light of evidence
placed on record.
10. 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;
11. The term “modesty” is defined by the Hon'ble Supreme
Court in the case of Raju Pandurang Mahale V/s. State of
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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Maharashtra, (2004) 4 SCC, 371, as the essence of a womans modesty
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.
Keeping in mind the ingredients of section 509 of Indian
Penal Code as noted above, I proceed to make the scrutiny of the
evidence placed on record.
12. 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.
13. Per contra, the learned advocate for the accused Shri.
Ramlal Kushwaha, vehemently argued that the prosecution failed to
prove the ingredients of Section 509 and 323 of Indian Penal Code and
therefore, he prayed to acquit the accused. Having regard to the
argument advanced by learned advocate for both the sides, I turn to
make the scrutiny of evidence placed on record.
14. The informant, Gayatri Babul Das (P.W.No.1) has
categorically deposed the entire incident and the filthy language uttered
by the accused at the time of alleged incident. According to her, the
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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accused forced her to get down from the auto rickshaw which was being
driven by him on the public road in a manner so rash or negligent as to
endanger human life. As per her evidence, the accused uttered indecent
words intending to insult her modesty in the public place. Moreover,
she further deposed that the accused torn her cloth. She testified that as
soon as she alighted from the said auto rickshaw, she called the police
by dialing the phone number 100 and the police immediately turned up
on the spot of the incident. As per her evidence, the concerned police
arrested the accused from the spot of the incident which is near Satyam
Electronics, Char Bangala, Saint Luise Convent Road.
15. In order to support the testimony of the informant, the
prosecution examined Smt. Usha Vasant Wagh (P.W.2) who testified
that she and the other police officials went to the spot of the incident by
police van after having received the call from the control room. This
police official (P.W.No.2) deposed that she and the other police officials
saw that a corner of the informant's dress was torn. This witness
further testified that the informant had told her that the said rickshaw
driver who is accused in this matter, had abused the informant.
According to her evidence, they took the informant and the accused in
the police station Versova. Thus, it appears that the testimony of the
informant is duly corroborated by the said police official (P.W.No.2).
16. The prosecution examined Shri Ganesh Vadhane
(P.W.No.3), who is the investigating officer of this offence. As per the
evidence of this investigating officer, the informant registered FIR
against the accused on 06/12/2017 when he was on duty in police
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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station Versova. He further testified that he obtained the signature of
the informant on the FIR. The informant has categorically deposed the
entire contents of the FIR. Thus, it can be held that the informant and
the investigating officer have categorically proved the contents of the
FIR which is filed at Exh.No.06 on record. Moreover, the investigating
officer deposed that after having recorded the statements of the
witnesses, he filed the chargesheet against the accused in this Court.
17. It is pertinent to note here that though the informant was
crossexamined at length, yet the presence of the accused on the spot at
the relevant time has not been denied. On the other hand, while facing
the crossexamination the informant has categorically mentioned the
number of the auto rickshaw which was being driven by the accused at
the time of incident. Apart from this, the police official, Usha Wagh
(P.W.No.2) who turned up on the spot of the incident to help the
informant as per the direction which she had received from the police
control room, categorically identified the accused in the Court and she
further deposed that the accused was taken to the police station from
the spot of the incident. In my opinion, there is no reason for the police
official to depose either in favour of the informant or against the
accused unless and until the specific material is brought on record.
Moreover, this particular piece of evidence has not been denied
specifically during the course of crossexamination. Hence, I have no
hesitation to take into consideration the testimony of this police official
(P.W.No.2).
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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18. Though the said police witness (P.W.No.2) was not present
at the time of alleged incident, yet her testimony is relevant under
Section 6 of the Indian Evidence Act. Thus, from the positive
evidence adduced by the informant and the another police official, it
can be concluded that the accused was driving auto rickshaw at the
relevant time and he used indecent language with intention to insult the
modesty of the informant.
19. The learned advocate for the accused, Shri Kushwaha
vehemently argued that the investigating officer did not seize the
C.C.T.V. footage from the spot of the incident and therefore, the
testimony of the informant cannot be believed. But I do not agree with
his submission because the investigating officer (P.W.3) has
categorically deposed that he did not find the C.C.T.V. footage nearby
the place of incident. Moreover, it is not the defence of the accused that
he was not brought to the police station by the concerned police staff on
the day of incident in connection with the said offence. In short, in my
opinion, even though the prosecution did not produce the C.C.T.V.
footage, still the direct testimony of the informant and the police official
(P.W.No.2) cannot be disbelieved.
20. The learned advocate for the accused, Shri Kushwaha
vehemently argued that the testimony of the informant is not supported
by the another eye witness. But I am not inclined to accept his
argument regarding the acceptance of the evidence of the informant
because there is no rule which can restrain the Court from accepting the
testimony of the sole witness if such testimony is reliable.
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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21. 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,
testimony of the informant which is duly corroborated by the police
official cannot be discarded.
22. Having made the analysis of the evidence adduced by the
informant and the another witness, it appears that the informant
deposed about the culpable intention of the accused by specifically
mentioning the obscene words uttered by the accused on the spot of
incident. It is needless to say that such words (i.e.'Tu Niche Utar, Tu
Madarchod Hai, Chhinal Hai, Bhosdi Hai') prima 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.
23. 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
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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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)
24. 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. Moreover, the filthy language used by the
accused is sufficient to come to the conclusion that such abusive words
are sufficient to attract the ingredients of Section 509 of Indian Penal
Code beyond reasonable doubt. Hence, I have not hesitation to hold
that the prosecution has succeeded to prove the material ingredients of
section 509 of Indian Penal Code. Resultantly, I record my finding in
affirmative for point no.1.
AS TO POINT NO.2:
25. In this present case, the accused is alleged to have
voluntarily caused hurt to the informant. In order to bring home the
guilt of the accused for the offence punishable under section 323 of
Indian Penal Code the prosecution has to prove the following essential
ingredients:
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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1 The accused voluntarily caused bodily pain or infirmity to the
victim;
2 The accused did so with intension of causing hurt or with the
knowledge that he would thereby cause hurt to the victim.
Keeping in mind the ingredients noted above, I proceed to
scan the evidence placed on record in this regard.
26. The informant deposed that the accused forced her to get
down from the auto rickshaw and he torn her cloths. It is pertinent to
note here that the police witness (P.W.No.2) who turned up on the spot
of the incident, deposed that they saw that the corner of dress of the
informant was torn. Thus, it appears that there is due corroboration to
the testimony of the informant. It is needless to say here that unless
and until a person used criminal force, any cloth worn by that person
cannot be torn out or tarnished. Thus, from the positive evidence
adduced by the informant it can be concluded that the accused caused
voluntarily hurt to the informant.
27. The learned advocate for the accused, Shri Kushwaha
further argued that the prosecution did not submit the medical
certificate of the informant. In fact, it has been brought on record that
the accused forced the informant to get down from the auto rickshaw
and he pushed her. In such circumstances, when there is minor hurt
caused by the accused to the informant, then in that case her medical
certificate is not required. Had it been the case of the prosecution that
the accused voluntarily caused grievous hurt to the informant, then in
that case the medical certificate would be required if the testimony of
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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the informant was found doubtful. But this is not the case of the
prosecution and the informant has categorically deposed the ingredients
of section 323 of Indian Penal Code. In short, in the absence of medical
certificate, the testimony of the informant can be taken into
consideration. Thus, I do not find any force in the argument advanced
by the learned advocate for the accused.
28. It would not be out of place to mention here that the said
incident occurred on 06/12/2017 at about 6.15 p.m. and the FIR came
to be lodged on the very day at about 20.30 p.m. Thus, it appears that
there is no delay in lodging FIR. 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.
29. 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 the other person gathered in the public place. So also it
can be held that the accused voluntarily caused hurt to the informant.
30. The learned advocate for the accused argued that the
investigating officer did not record the statement of any independent
witness and therefore, according to him, the testimony of the informant
cannot be believed. Having gone through the chargesheet, it appears
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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that the investigating officer did not record the statement of any person.
It is known to all that whenever any incident regarding the modesty of
woman occurs in a public place, the general tendency of the public is
that no one come forward to be a witness of such incident. In such
circumstances, having regard to the common course of business and the
general tendency of the public, in my opinion, even though the
statement of any independent witness was not recorded, still the sole
testimony of the informant which is reliable cannot be disbelieved only
on the reason that there is no corroboration. It is needless to say here
that corroboration is required only and only when the Court is not
wholly satisfied regarding the credibility of particular witness. Thus,
corroboration is simply a rule of prudence and not one of the rule of
law.
31. It would not be out of place to mention here that though
the informant was crossexamined at length, the accused did not raise
any probable defence which might have made the testimony of the
informant suspectable. Moreover, it is not the stand of the accused
that there was enmity between him and the informant prior to the said
incident. In such scenario, there is no reason for the informant to
depose against the accused. Thus, considering the positive and reliable
evidence placed on record, I have no hesitation to hold that the accused
not only uttered the obscene words with intention to insult the modesty
of the informant but also he voluntarily caused hurt to the informant.
Resultantly, I record my finding in affirmative for point no.2.
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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32. In view of the discussion noted above, I have come to the
conclusion that the prosecution has succeeded to prove the offence
punishable under section 509 and 323 of Indian Penal Code against the
accused beyond reasonable doubt. Hence, I hold the accused guilty for
the offence punishable under section 509 and 323 of Indian Penal Code.
33. The accused is present before the Court today. I explained
the accused that he is held guilty for the offence punishable under
section 509 and 323 of Indian Penal Code. He is further intimated that
the punishment for the offence punishable under section 509 of Indian
Penal Code may extend to one year or with fine or with both. He is
further made aware of the punishment prescribed for the offence
punishable under section 323 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)
Judicial Magistrate First Class,
DATE: 03.09.2024 44th Court, Andheri, Mumbai.
Judgment resumed on 03.09.2024 at 4.45 p.m.
34. 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 seven years. He prayed that
leniency may be shown while imposing the punishment. The learned
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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advocate for the accused, Shri Kushwaha, also prayed to show leniency
to the accused while slapping the punishment.
35. 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.
36. Having heard the learned advocates for both the sides on
the quantum of punishment, I perused the record.
37. 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.
38. 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 42 years old. Hence,
having regard to the facts and circumstances of the case and the
responsibility of the accused towards his family, this Court is of humble
view that leniency may be shown while imposing punishment on the
accused.
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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The logical corollary of my aforesaid findings leads me to pass the
following order:
O R D E R
1] The accused Shivaji Lattu Sahu, Age 42 Yrs, Occupation Auto
Rikshaw Driver, R/o.Room No.41, Chirekhan Nagar,
Kadamwadi, Vakola, Santaruz (E), Mumbai is hereby convicted
for the offence punishable under Section 509 and 323 of the
Indian Penal Code vide section 248(2) of Indian Penal Code.
2] The accused is sentenced to suffer rigorous imprisonment for
three months for having committed the offence punishable
under section 509 of Indian Penal Code.
3] The accused is sentenced to pay fine of Rs.1,000/ (Rupees One
Thousand Only) for the offence punishable under section 323
of Indian Penal Code. In default of fine, the accused shall
undergo simple imprisonment for 15 days.
4] The accused is entitled for setoff under section 428 of the Code
of Criminal Procedure, 1973, if any.
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.
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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6] The accused is informed about his right of appeal against this
judgment.
7] The Judgment is dictated on dais and pronounced in open
Court.
(Sujitkumar C. Tayde)
Date : 03.09.2024 Judicial Magistrate First Class,
44th Court, Andheri, Mumbai.
Typed On: 03.09.2024
Signed On: 03.09.2024
spj
(Sujitkumar C. Tayde)
J.M.F.C. 44th Court, Andheri, Mumbai.
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