Bangalore District Court
State By Police Sub Inspector vs Mohammed Faizal on 20 February, 2020
IN THE COURT OF XXXII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
PRESENT: SRI.HATTIKAL PRABHU.S.
M.A.,LL.B(Spl) LL.M.,
DATED THIS THE 20th DAY OF FEBRUARY 2020
C.C.No.33639/2018
Complainant State by Police Sub Inspector
Malleswaram police station.
-Vs-
Accused Mohammed Faizal,
S/o.Faizur Rehman,
Aged about 21 years,
R/At.No.M-1-20, 5th cross,
L.N.Pura, Srirampura, Bangalore.
Date of commission 04.08.2018
of offence
Name of the Prosecutrix
informant of crime
Offences complained U/Sec.354(A) and 509 of IPC
of
U/Sec.354(A) and 509 of IPC
Charges framed for
the offences
Date of arrest of Accused is not arrested, he
accused voluntarily appeared before
court and was enlarged on
bail on 21.01.2019
Date of release of
accused --
Commencement of 08.04.2019
2 C.C.33639/2018
recording of
evidence
Closure of recording 25.07.2019
of evidence
State represented by Sr.Asst.Public Prosecutor
Accused represented Sri.C.P..Adv.,
by
Plea of the accused Pleaded not guilty
and his examination
Final Order/Opinion Accused is convicted for
of the Judge the offences U/Sec.354(A)
and 509 of IPC.
JUDGMENT
(U/Sec.355 Cr.P.C) This is a criminal case arisen out of the charge sheet submitted by the WPSI of Malleswaram Police station against the accused for the offences punishable U/Sec. 354(A) and 509 of the IPC in Crime No.158/2018.
2. In brief, the case of the prosecution runs thus:
a). That on 04.08.2018 C.W.1 went to the shop No.F-77 ie., BIBA Shop at 1st floor in Mantri Mall, Sampige Road, Malleswaram along with C.W.4, 5 and 6 for shopping.3 C.C.33639/2018
b). At BIBA shop C.W.1 selected a kurta and she asked the C.W7 and 8 in the shop to alter the kurta. The C.W.7 and 8 sent the C.W.1 along with the accused,who was working in the BIBA shop to the tailoring room at 2 nd floor. When they went to the tailoring room, the tailor was not there in the tailoring room. Since the tailor was not there in the room, the accused informed the C.W.1 that he would take measurement and under the guise of taking measurement, the accused touched C.W.1 inappropriately and pressed her chest and molested C.W.1 and thereby the accused outraged the modesty of C.W1.
Thereby the accused committed the offences U/Sec. 354(A) and 509 of the IPC.
3. After taking cognizance, criminal case against accused came to be registered. Sec. 207 Cr.P.C complied. Considering the averments of the complaint and the prosecution papers, this court pleased to frame charge against accused for the offences punishable 4 C.C.33639/2018 U/Secs.354(A) and 509 of the IPC. The accused denied the charge leveled against him as false and claimed to be tried.
4. On behalf of prosecution in all evidence of P.W.1 to 6 adduced and documents Ex.P.1 to 3 are got marked.
5. After closure of prosecution evidence, the accused examined U/s 313(1)(b) Cr.P.C and each and every incriminating circumstance found in the evidence is read over separately to the accused. The accused denied all such incriminating circumstances as false. Accused did not choose to explain anything during his examination. Accused did not choose to adduce defence evidence and no documents are got marked on behalf of accused.
6. Heard the arguments from both sides,
7. Now the point that would arise for the determination of the Court is:
"Whether the prosecution proves the alleged guilt of the 5 C.C.33639/2018 accused for the offences U/s 354(A) and 509 of the IPC?"
After considering the arguments from both sides, after careful scrutiny of both the oral and documentary evidence placed on record and after appreciating the circumstances arisen out of the case and evidence, my finding on the above point is in the Affirmative for the following..
REASONS
8. Point No.1: In order to prove the guilt of the accused, on behalf of prosecution, C.W.1/ informant of crime/Victim is examined as P.W.1. The P.W.1 in her evidence explained the incident and she identified the complaint and spot mahazar. The complaint and spot mahazar are marked as Ex.P.1 and 2 through this P.W.1
9. C.W.4-Smt.Ranjini and C.W.5-Smt.Indira examined as P.W.2 and 6 respectively claiming to be circumstantial witnesses.
10. Leared Sr.Asst. Public Prosecutor given up examination of C.W.6 another circumstantial witness. 6 C.C.33639/2018
11. C.W.7-Kum.Prema is examined as P.W.4. According to the case of the prosecution, this witness was working in BIBA shop as on the date of alleged incident. C.W.10-Police constable examined as P.W.3 claiming to be circumstantial witness. C.W.11 -WPSI-Smt.Renuka who is I.O in this case examined as P.W.5 through this witness, the FIR is marked as Ex.P.3.
12. Prosecution failed to secure C.W.2 and 3- spot mahazar witnesses. C.W.8 is eye witness/circumstantial witness and C.W9-Head constable secured the accused. Sufficient opportunity has been given to the prosecution to secure C.W.2, 3, 8 and 9. Repeatedly NBW was issued. For one or the other reason, prosecution could not secure these witnesses.
13. During course of arguments, learned Sr.Asst. Public Prosecutor argued that the evidence placed on record is sufficient to establish the guilt of the accused since same is free from material contradiction. Further learned Sr.Asst. Public Prosecutor argued that the prime 7 C.C.33639/2018 witness having no enmity with the accused and there are no reasons to lodge false complaint and to give adduce false evidence and absolutely there are no reasons to disbelieve or suspect the say of prime witness.
14. On the other hand, on behalf of accused, it is argued that the C.W.1 is regular customer at BIBA shop and she requested to exchange the clothes after getting altered the clothes and same was refused in the shop. Further it is argued that in order to damage the reputation of the shop this C.W.1 lodged false complaint against accused. Further it is argued that accused is innocent and absolutely no incident took place as alleged.
During arguments it is pointed out that immediately after the incident the C.W.1 did not revolt the accused or make any assault atleast a fist blow on the accused and this conduct of the C.W.1 clearly indicates that no incident took place.
On these grounds and other grounds on behalf of accused it is argued that evidence placed on record is not 8 C.C.33639/2018 reliable and accused is able to establish his defence and accused as a matter of right is entitled for acquittal.
15. At this juncture, I would like to reproduce Secs. 354A and 509 of the IPC and the interpretation of the word "Proved" U/Sec. 3 of the Indian Evidence Act, which reads as under-
Sec.354A of IPC- A man committing any of the following acts-
1. physical contact and advances involving unwelcome and explicit sexual overtures; or
2. a demand or request for sexual favours; or
3. showing pornography against the will of a woman; or
4.making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub- section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
3. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Sec.509- Word, gesture or act intended to insult the modesty of a woman.-- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound 9 C.C.33639/2018 or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. Sec.3 of the Indian Evidence act:
"Proved". A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
16. After going through the above said provisions of law and allegations leveled against accused, the prime question arises before court is whether the evidence placed on record is sufficient to establish the guilt of the accused. Keeping the requirement of the above mentioned law, I have carefully scrutinized both the oral and documentary evidence placed on record.
17. The P.W.1/ informant of crime, P.W.2-Smt. Ranjini and P.W.6 Smt.Indira Ganesh in their evidence deposed that on 04.08.2018 they went to BIBA shop at Mantri Mall and after selecting clothes the salesgirl sent P.W.1 10 C.C.33639/2018 to the 2nd floor with the accused for the purpose of alteration of the clothes. Further P.W.1 explained that in the 2nd floor, the accused proceeded to take measurement and touched her inappropriately over the chest and misbehaved with her.
18. P.W.4(C.W.7) in her evidence deposed that from September 2017 to July 2018 she was working as salesgirl in BIBA shop and accused was working as sales Executive in BIBA shop and further P.W.4 deposed that the accused was taking measurement and thereafter the customer was telling that accused misbehaved with her.
19. Further P.W.1 in her evidence explained that she lodged complaint as per Ex.P.1 and thereafter I.O conducted mahazar on the spot as per Ex.P.2.
20. P.W.3 police constable in his evidence explained that on 04.08.2018 on receipt of information himself and C.W.9-Head constable rushed to mantrimall and he came to know that the accused misbehaved with the C.W.1 11 C.C.33639/2018 and at that time the accused and C.W.1 were there in the shop. Further P.W.3 deposed that he took the accused to the police station and produced before C.W.11-I.O.
21. P.W.5-I.O in her evidence explained the investigation done by her.
22. During cross examination of P.W.1, 2 and 6 it is tried to establish that the C.W.1(PW.1) went to exchange the clothes after alteration and same was refused at BIBA shop. The suggestions posed on behalf of accused during cross examination came to be denied by P.W.1, 2 and 6. In the lengthy cross examination of the witness, nothing has been elicited to believe that the prime witness is deposing false evidence.
23.Further at this juncture I feel it relevant to rely on the following decisions reported in:
1). (2010) 13 SCC 657 Dr.Sunil Kumar Sambhudayal Gupta and others Vs. State of Maharashtra, wherein the Hon'ble Supreme Court of India explained the principles of law of appreciation of the evidence 12 C.C.33639/2018
2). (2014) 13 SCC 308 (State of MadhyaPradesh Vs Dharkole alias Govind Singh and others, wherein it is held that CEvidence Act 1872 Sec.3Proved Standard of proof required is proof beyond all reasonable doubtyet there is no absolute standard of reasonable doubt a reasonable doubt is A fair doubt based on a reason and commonsense and must grow out of the evidence in the caseconcept of probability cannot be expressed with mathematical precision as it involves subjective elements and it rests on commonsensecriminal trial benefit of doubt words and phrases reasonable doubt"
I have gone through the above said decisions and keeping the law laid down in the above decisions in my mind I have appreciated the evidence placed on record and circumstances of the case.
24. Keeping the law laid down in the above said decisions in my mind, I have appreciated the evidence placed on record. After going through the entire material, it is clear that there is no enmity between the parties. Under these circumstances, this court does not find good and sufficient reasons to believe that P.W1, 2 13 C.C.33639/2018 and 6 -prime witnesses are deposing false evidence. Apart from that the evidence of P.W.4 who is working at BIBA shop also corroborating with the evidence of P.W.1, 2 and 6. The evidence of P.W.3-police constable also corroborates with the evidence of prime witnesses and the evidence of I.O also fully supports the case of the prosecution. Looking to the matter from any angle the evidence and circumstances are pointing out towards the guilt of the accused only.
25. Even during examination of the accused U/s 313 of Cr.P.C, the accused restricted his answers to denying the incriminating circumstances as false, but did not choose to explain the facts and circumstances which leads to establish his innocence. On this aspect I would feel it relevant to rely on the decision reported in ILR 2004, KAR 1459 (Ishwar Sadeppa Nandennavar Vs- State of Karnataka) wherein it is held that:-
"B.Criminal Procedure Code,1973(Central Act No.11 of 1974)-Section 313 - powers of Court to examine accused-Absolutely no explanation having been offered by the 14 C.C.33639/2018 accused while he had opportunity of explaining when questioned under Section
313. HELD- It is necessary for the accused even in case where entire case of the prosecution revolves around circumstantial evidence, if the other circumstances are proved, prima facie by the prosecution to explain any circumstances appearing in the evidence against him"
I have gone through the law laid down in the above decision.
26. After going through the law laid down in the above said decision and considering the evidence placed on record, this court comes to the conclusion that the evidence and circumstances are pointing out towards the guilt of the accused only. Further it is crystal clear that on the basis of the material placed on record there is no any option, except to come to the conclusion of holding the accused guilty for the offence U/Sec. 354(A) and 509 of the IPC. With these observations, this court comes to the conclusion that prosecution proved the guilt of the accused beyond all reasonable doubt for the offence 15 C.C.33639/2018 U/Sec. 354(A) and 509 of the IPC. Accordingly I answer the above point in the Affirmative and I proceed to pass the following.....
ORDER Acting U/Sec.248(2) of Cr.P.C., I hereby convict accused for the offences punishable U/Sec. 354(A) and 509 of the IPC.
The matter is posted for hearing before sentence.
(Dictated to the Stenographer, transcribed and typed by her on computer and after corrections made by me and then pronounced by me in the Open Court on this the 20th day of February 2020.
(HATTIKAL PRABHU.S) XXXII ADDL.C.M.M, BANGALORE 16 C.C.33639/2018 ORDER ON SENTENCE Heard the accused, learned counsel for accused and learned Sr.Asst. Public Prosecutor on imposing sentence.
The accused submitted that he has not committed any offence and he prayed to take lenient view.
On the other hand learned Sr.Asst. Public Prosecutor submitted that the proved offences are heinous in nature and it creates threat in the mind of the society and he prayed to impose maximum sentence to accused.
The proved offences are U/Secs. 354A and 509 of the IPC. Considering the nature of the act of the accused and the age of the accused and other circumstances this court comes to the conclusion that if the accused is sentenced to suffer Simple Imprisonment for a period of three months with fine of Rs.5,000/-(Rupees 17 C.C.33639/2018 Five Thousand) for the offence U/Sec. 354A of IPC and simple imprisonment for a period of three months with fine of Rs.5,000/-(Rupees Five Thousand) for the offence U/Sec. 509 of IPC , it would meet the ends of justice. Accordingly I proceed to pass the following ...
ORDER The accused is sentenced to suffer Simple imprisonment for a period three months and shall pay fine of Rs.5,000 /- (Rupees Five Thousand Only) for the offence punishable U/Sec. 354(A)of the IPC, in default of payment of fine the accused shall undergo Simple Imprisonment for a period of one month.
Further the accused is sentenced to suffer Simple imprisonment for a period three months and shall pay fine of Rs.5,000 /-(Rupees Five Thousand Only) for the offence punishable U/Sec. 509 of the IPC, in default of payment of fine the accused shall undergo Simple Imprisonment for a period of one month.
18 C.C.33639/2018
Both the main sentences shall run concurrently and defaulted sentences run separately.
Acting U/Sec. 357(1) Cr.P.C I hereby award compensation of Rs.8,000 /-(Rupees Eight Thousand only ) to C.W.1/ informant of crime, out of the fine amount.
The bail bond of the accused stands cancelled.
Office is directed to issue free copy of this judgment to the accused forthwith. (Dictated to the Stenographer, transcribed and typed by her on computer and after corrections made by me and then pronounced by me in the Open Court on this the 20th day of February 2020.
(HATTIKAL PRABHU.S) XXXII ADDL. C.M.M,BANGALORE ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION P.W.1: Prosecutrix P.W.2: Smt.Ranjini Kawatra P.W.3: Sri. Manjunath.K- P.C No.11839 P.W.4: Smt.Prema.S P.W.5: Smt.Renuka P.W.6: Smt.Indira Ganesh 19 C.C.33639/2018
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P. 1 : Complaint Ex.P. 1(a,b): Signatures Ex.P. 2 : Mahazar Ex.P.2(a) : Signature Ex.P.3: FIR Ex.P.3(a): Signature LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE-
Nil -
LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION-
NIl (HATTIKAL PRABHU.S) XXXII ADDL. C.M.M,BANGALORE.