Order 1

Order Details: Copy  of Judgment
Pdf Text: ~1~ Judgment C. C. No. : 2867/PW/2018
Filed on : 19/10/2018.
Registered on : 19/10/2018.
Decided on : 29/01/2019.
Duration : 0 Y., 03 M., 10 D.
Exh. :
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
66TH COURT, ANDHERI, MUMBAI.
(Presided by R. M. Nerlikar)
(JUDGMENT U/SEC. 355 OF CRIMINAL PROCEDURE CODE)
(a) The serial No. of the
case ;
: 2867/PW/2018.
(b) The date of commission of
the offence ;
: 20/08/2018.
(c ) The name of the
informant (if any) ;
: The State (Powai Police
Station in C. R. No.
438/2018).
(d) The name of the accused
person and his parentage
and residence;
: Akshay Manohar Sutar.
Age : 22 Years,
Occ. : No,
R/o. : Bhimabai Chawl,
Paspoli Gaon, Powai, Mumbai.
(e) The offence complained
of or proved ;
: U/Sec. 354, 509, 504, 506 (ii)
of Indian Penal Code.
(f) The plea of the accused
and his examination
(if any) ;
: Accused pleaded not guilty.
(g) The final order ; : Accused is convicted.
(h) The date of such order ; : 29/01/2019.
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~2~ Judgment C. C. No. : 2867/PW/2018
CHARGE : OFFENCE P. U. S. 354, 509, 504, 506 (ii) of
Indian Penal Code.
Ld. A.P.P. for the State. : Miss. P. R. Jagtap.
Ld. Advocate for accused. : Mr. Dilip Patil.
J U D G M E N T
(Delivered on 29/01/2019)
The accused has faced the trial for the offence
punishable 354, 509, 504, 506 (ii) of Indian Penal Code.
2. In short it is the case of the prosecution, on
20/08/2010, at about 12.30 hours, informant alongwith her
sisterinlaw were washing cloths outside their house.
Accused was passing from there, after looking towards
informant he told, “;s fNUgky dk; djrh;sl j.Mh”, wherein
she asked as to why he is troubling her and her family.
Thereafter, accused put his hand on her brest, torn her blouse,
thereafter, caught her neck pushed her and fall down. She
shouted, her sisterinlaw and her brother rushed towards
incident. Thereafter, the accused started abusing, wherein he
pull down his burmoda and underwear, touched his penis and
by made gestures towards informant told ^^rqyk >orks**, and
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threatened informant and her family. Informant closed the
door, the accused threatened, pelted stone on it. Thereafter,
she called 100 number. Accused gave blow of knife on his
hand and thereafter went away. Thereafter, informant lodged
report against accused for above said incident. Upon report
crime against the accused was registered for the above said
offences. After completion of investigation police submitted
chargesheet against the accused.
3. Charge against the accused was framed below
(Exh.2). The contents of the charge were read over and
explained to the accused in vernacular. The accused pleaded
not guilty and claimed to be tried. His defence is that of total
denial and false implication on account of previous dispute in
between him and informant.
4. Heard the Ld. A.P.P. Miss. P. R. Jagtap and Ld.
Counsel Mr. Dilip Patil, for the accused, at length.
5. The points for determination along with my
findings thereon are, as under...
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~4~ Judgment C. C. No. : 2867/PW/2018
SR. NO. POINTS FINDINGS
1 Does prosecution prove that, on
20/08/2018, at about 12.30 hours,
at Room No.6, Jaila Khan Chawl,
NITTEE, Paspoli Village, Powai,
Mumbai, the accused assaulted by
using criminal force to informant, a
woman, intending to outrage her
modesty, and thereby committed
an offence punishable under
section 354 of Indian Penal Code ?
Yes.
2 Does prosecution prove that, on
aforesaid date time and place,
accused intending to insult the
modesty of above named informant
uttered the words, “;s fNUgky dk;
djrh;sl j.Mh”, and down his
burmoda and underwear, touched
his penis and by making gesture
towards informant told ^^rqyk
>orks**, intending that the same
shall be seen and heard by her,
thereby committed an offence
Yes.
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punishable under section 509 of
Indian Penal Code ?
3 Does prosecution prove that, on
aforesaid date time and place,
accused intentionally insulted
above named informant, by abusing
her and her brother and thereby
gave them provocation intending
that such provocation will cause
them to break the public peace and
thereby committed an offence
punishable under section 504 of
Indian Penal Code ?
Yes.
4 Does prosecution prove that, on
aforesaid date time and place,
accused intentionally, threatened
above named informant and
brother with injury to them, with
intent to cause alarm to them or to
cause her to do an act, which they
are not legally bound to do and
thereby committed an offence
Yes.
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punishable under section 506 (ii) of
Indian Penal Code ?
5 What order ? As per final
order.
R E A S O N S
AS TO POINT NOS.1 TO 4 :
6. These points are interlinks with each other,
therefore, I am discussing the same together.
7. In order to prove the case, prosecution examined
informant as (P.W.1) at (Exh.5), Ananada Haribhau Patekar ,
as (P.W.2) and as panch (P.W.3), at (Exh.7) and (Exh.11)
respectively, Investigation Officer PSI Tushar Tatyasaheb Kale,
as (P.W.4) at (Exh.13).
8. If minutely read evidence of informant (P.W.1) , it
reveals that, she testified incident occurred on 20/08/2018, at
about 12.30 hours. She was standing outside of her house.
Her sisterinlaw was washing cloths and she was standing
near by her for rinsing the cloths. Accused came there, abused
her as “fN.kky] jaMh] dk; djrsl”. She asked her as to why he
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has abusing and giving trouble to her and her children. The
accused kept his hand on the breast of informant and torn her
blouse. Informant and her sisterinlaw shouted, her brother
came out and rescued. Thereafter, the accused pull down his
burmoda and underwear and told “>orks”, hence there was
scuffle in between her brother and accused, nearby persons
rescued them. Thereafter, she went inside her house, closed
door, dial 100 number. Accused kicked the door and
threatened her. He holds knife, also gave blow of the same on
his hand and thereafter ran away. Thereafter, she lodged
report, (Exh.6 ).
9. If gone through cross examination of informant,
(P.W.1) efforts were made on behalf of accused to show that,
the vicinity where informant, (P.W.1) and accused resides is
slum area. She denied as there was illegal construction in said
area, therefore, she had dispute with residence, who resides
within said vicinity. She also denied her dispute with the
persons, who are residing there and they lodged report against
her. She testified burmoda of accused was of lemon colour
and colour of under wear of accused was red and was short.
She denied there was quarrel in between her sisterinlaw and
accused. She states the abuses were heard by neighbour. She
denied no incident occurred, as testified by her.
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10. Evidence of Ananda (P.W. No. 2) disclosed that,
after hearing noise he came outside the house. The accused
abused his sister and put his hand on her chest, caught hold
her neck and fall her down, he rescued. Thereafter, he and
his wife have taken his sister in house and closed door.
Accused pelted stone on door. He also brought knife with him
and gave blow of the same on his hand.
11. If read his cross examination he denied he has not
heard any noise. He denied due there was dispute in between
his sister and neighbours on account of drainage water. He
denied he has not witnessed the incident nor heard abuses.
He denied accused not committed any offence by virute of it
not outraged modesty of his sister. The stated the relation in
between his sister and accused are strained. He testified
burmoda of accused was lemon colour.
12. The witness also testified in respect of drawing of
spot panchanama (Exh.12). He testified in his presence
police not recovered anything. He denied contents of
panchnama were not read over to him by police. He denied
there were inimical terms against accused, therefore, deposed
against him.
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13. Evidence of Investigation Officer PSI Tushar (P.W.
No.4) disclosed in respect of registration for F.I.R. (Exh.6),
drawing of spot panchanama (Exh.12) in presence of panch,
thereafter, recording statement of witnesses and statement
U/Sec. 164 of Cr. P. C. of informant before Ld. Metropolitan
Magistrate, after completion of investigation filed chargesheet
against accused.
14. If gone through cross examination he stated he has
not seized any cloths of the informant nor cloths of accused
from the spot of incident. He further stated that he has not
recorded statement of neighbours of the informant. He stated
he do not found any discrepancy in the statement of the
informant. He stated, he has not verified any documents, so
as verified the dispute in between accused and informant. He
denied he registered the case falsely and investigated the same
and false chargesheet filed against accused.
15. If minutely gone through the evidence of above
discussed witnesses, as well as perusal of report (Exh.6) and
crossexamination of above said witnesses it reveals that,
apart from the dispute in between accused and informant
nothing has been brought on record. No doubt it is not for
accused to prove his innocence, but it is for prosecution to
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prove the allegations against the accused beyond reasonable
doubt. If minutely considered evidence of informant (P.W.
No. 1), Ananda (P.W. No.2 ) and panch (P.W. No.3 ) and
Investigation Officer PSI Tushar (P.W. No.4 ) their evidence
is consistent, corroborated with each other and corroborated
with report (Exh.6). All these witnesses have testified with
regard to incident, which occurred on 20/08/2018, at 12.30
hours, which relates to outraging the modesty of informant
(P.W. No. 1) and thereby abusing and threatening her.
16. So far as dispute in between parties are concern
and that to in respect of drainage water is concern, it appears
that informant (P.W. No. 1) and Ananda (P.W. No.2 ) though
admitted the fact of dispute, but denied same on account of
drainage as well as denied dispute with neighbours on
account of drainage water.
17. Ld. Counsel for accused argued that in the absence
of seizure of cloth of informant and accused, in absence of
evidence of independent witness and witnesses which were
examined are interested witness, the evidence of these
witnesses can not be relied upon, as they are not believable.
He further argued that as there was inimical terms in between
informant and accused and the same has come on record. In
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these circumstances, the story putforth by prosecution creates
doubt therefore, benefit of doubt is required to be given to the
accused.
18. If considered argument advanced by Ld. Counsel
for accused it appears that on perusal of report (Exh.6), it
appears that, the informant herself stated the accused was
giving trouble to her since long as well as her family and N.C.s
in that regard were registered by her with the concern police
station, nothing has been brought on record on behalf of the
accused prior to incident immediately by virtue of it the
accused was implicated falsely.
19. Evidence of informant (P.W. No. 1) clearly
inference this fact accused was given trouble to her, since long
not by virtue of drainage water but by virtue of his malafide
intention i.e. the reason she made report with the concern
police station. The accused has not denied fact of making
complaint by informant against him and therefore, the
submission made by Ld. Counsel for accused with regard to
inimical terms in between accused and informant that cannot
be considered, as the accused caused troublesome atmosphere
and finally outraged her modesty which compelled the
informant to lodge report (Exh.6).
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20. So far as no examination of independent witnesses
by the Investigation Officer is concern there is not rule that in
each and every case it is mandatory on the part of the
Investigation Officer to examine the independent witnesses,
who are resided within vicinity of the informant and accused.
It is up to Investigation Officer to examined those witnesses
and collect the material on record which helps him to prove
the guilt of accused. It is settled position of law that, mere
testimony of the informant is sufficient to believe and rely in
such cases. In the present case apart from informant one
witness was examined, who is her brother, he was present on
the spot of incident on the same date and time of incident.
Mere his brother do not leads to infer this fact that his
evidence cannot be relied upon. Therefore, argument
advanced by Ld. Counsel for accused cannot be considered.
21. If considered this fact above discussion the
evidence on record which is consistent, corroborated and
reliable with report (Exh.6). Other witnesses, who is
examined by the Investigation Officer supported the case of
prosecution. Evidence of Investigation Officer, is also reliable
and corroborated with the evidence of other witnesses.
Nothing has been brought on record on behalf of accused, so
as to discard or disbelieve evidence of above said witnesses,
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mere dispute in between informant and accused cannot be
ground to reject the evidence of these witnesses. Therefore,
evidence of these witnesses inspired confidence, so as to
believe this fact the accused committed offence P.U.S. 354,
509, 504, 506 (ii) of Indian Penal Code. Therefore, I
answered points No.1 to 4 in affirmative .
AS TO POINT NO.5 :
22. In view of above discussion the prosecution proved
the case against the accused for an offence P.U.S. 354, 509,
504, 506 (ii) of Indian Penal Code. Therefore, I hold the
accused guilty for the same.
23. Prior to hear the accused on the point of sentence,
it is necessary to see whether benefit of Probation Offenders
Act, can be extended to the accused. If considered nature of
offence committed by accused, it is committed against the
women, I am of view that in these circumstances though
report of Probation Officer is not on record, it's benefit cannot
be extended in favour of accused, as the accused has
committed the offence against woman, and outraged her
modesty, not only stopped there also abused and threatened
her and her family members with dire consequences.
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Therefore, I have no alternative except to hear accused on the
point of sentence.
24. Heard the Ld. counsel for accused on the point of
sentence. He submitted that, accused is young, age about 22
years, sole earning member of his family, not harden criminal,
therefore, lenient view be taken against him. He further
argued that, accused is in jail since last 7 months, therefore,
same period be considered, while imposing punishment.
Therefore, prayed for minimum punishment.
25. Ld. A.P.P. argued that, punishment be imposed in
accordance with law.
26. If considered the nature of offence, manner in
which it was committed and punishment prescribed for
aforesaid offences, and submission made by the Ld. counsel
for the accused, I am of view that, if considered the age of
accused that is 22 years of old, and sole earning member of
his family, leniency required to be taken and the accused is
required to punish and sentence to suffer simple
imprisonment, for One year and to pay fine of `.1,000/ , for
the offence punishable U/Sec. 354 of Indian Penal Code, he is
sentenced to suffer Simple Imprisonment for One year and to
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pay fine of `.1,000/ , for the offence punishable U/Sec. 509 of
Indian Penal Code, he is sentenced to suffer Simple
Imprisonment for One year, for the offence punishable U/Sec.
504 of Indian Penal Code, he is sentenced to suffer Simple
Imprisonment for One year, for the offence punishable U/Sec.
506(ii) of Indian Penal Code. Accordingly, I answered point
No.5 and pass the following order.
ORDER
1. Accused viz. Akshay Manohar Sutar is hereby
convicted for the offence punishable U/Sec. 354
of Indian Penal Code vide Sec. 248 (2) of
Criminal Procedure Code and he is sentenced to
suffer Simple Imprisonment for One Year and to
pay fine of `.1,000/ in default to suffer Simple
Imprisonment for 10 days.
2. Accused viz. Akshay Manohar Sutar is hereby
convicted for the offence punishable U/Sec. 509
of Indian Penal Code vide Sec. 248 (2) of
Criminal Procedure Code and he is sentenced to
suffer Simple Imprisonment for One Year and to
pay fine of `.1,000/ in default to suffer Simple
Imprisonment for 10 days.
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3. Accused viz. Akshay Manohar Sutar is hereby
convicted for the offence punishable U/Sec. 504
of Indian Penal Code vide Sec. 248 (2) of
Criminal Procedure Code and he is sentenced to
suffer Simple Imprisonment for One Year.
4. Accused viz. Akshay Manohar Sutar is hereby
convicted for the offence punishable U/Sec. 506
(ii) of Indian Penal Code vide Sec. 248 (2) of
Criminal Procedure Code and he is sentenced to
suffer Simple Imprisonment for One Year.
5. The bail bonds of the accused are cancelled.
6. Set off be granted to accused, from 21/08/2018,
vide Sec. 428 of Criminal Procedure Code.
7. All sentences shall run concurrently.
8. Dictated and pronounced in open Court.
9. Copy of judgment be given to accused free of
cost.
Date 29/01/2019.
SRD.
Sd/
(R. M. Nerlikar)
Metropolitan Magistrate,
66th Court, Andheri, Mumbai.
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~17~ Judgment C. C. No. : 2867/PW/2018
Dictated on : 29/01/2019.
Transcribed on : 29/01/2019.
Signed on : 01/02/2019.
SRD.
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