Metropolitan Magistrate Yashshree Marulkar sentences a man to three years of rigorous imprisonment for intentionally flashing his genitals to a woman in S. K. Patil Garden with the intention of causing harm to the woman

The informant, an employee of N. N. Jain Associates at Aman Chambers, Churni Road, Mumbai, left her office on September 18, 2021, at 05:45 P.M. and visited S. K. Patil Garden, wherein the informant sat on a bench in the garden whilst watching a lecture on the internet on her phone. The informant noticed the accused, Mr. Rajkumar Narayan Tandel, stalking her from a distance; consequently, the informant moved to another bench in the garden in order to get away from the accused. The accused followed the informant, wherein he proceeded to unzip his trousers and expose his genitals owing to there being nobody around the garden. The informant realized the situation, wherein she started running towards the exit gate of the garden while the accused continued to follow her whilst exposing his genitals.

The informant spotted two persons sitting in the garden and asked them for their help, wherein the persons caught and restrained the accused while the informant called the police. The police arrived at the spot and they took the accused to the L. T. Marg Police Station with the informant at 07:00 P.M., wherein the informant filed an FIR against the accused in front of P.S.I. Kadam (Police Officer In-charge of Prevention of Sexual Harassment of Women cell). After recording the criminal offence against the accused under Sections 354 (Assault of criminal force to woman  with intent to outrage her modesty), 354A (Sexual Harassment) and 354D (Stalking) of the Indian Penal Code, 1860, the investigation was handed over to A.P.I. Shelar. After conducting a preliminary investigation and recoding the statements from two eyewitnesses in the garden, the investigation was handed over to P.S.I. Jadhav. The accused pleaded not guilty to committing the alleged crime. The two eyewitnesses to the aforementioned incident, Ancito and Tushar, held that the informant came running towards them whilst the accused was exposing his genitals. Upon seeing the two, the accused fixed the zip of his trousers in an attempt to flee the scene; subsequently, the two caught and restrained the accused. The two accompanied the informant to the L. T. Marg Police Station where the police officers recorded their statements. The two identified the accused in court whilst undergoing cross-examination.

During the course of the investigation, A.S.I. Jadhav revealed that the accused was booked for similar offences in Cuffe Parade Police Station (three cases) and Azad Maidan Police Station (one case), wherein the accused has been convicted for the latter offence under Sections 354A, 354D and 509 (Word, Gesture or Act intended to insult the modesty of a woman) of the Indian Penal Code, 1860 and Section 12 (Sexual Harassment of a Child) of the Protection Of Children from Sexual Offences Act, 2012 on December 21, 2018. It is worth noting that in the case of The State of Maharashtra v. Chandraprakash Kewalchand Jain (1990) SCC 5501, the court held that the prosecutrix of a sexual offence cannot be labelled as an accomplice to the crime, rather she is the victim of the crime and her testimony is to be treated under the Indian Evidence Act as competent as the witness testimony of an injured victim of physical violence, wherein the court added that the evidence of the sexual victim must receive the same degree of care and caution as the evidence of an injured informant or witness, provided the court is convinced that the evidence of the sexual victim is neither infirm nor untrustworthy. In the aforementioned case, the court is allowed to look for pieces of evidence that lend credence and assurance to the testimony of the sexual victim.

The defence for the accused held that the testimony of the informant is false owing to darkness at the time of the incident. The court in the present case upheld the presence of mind of the informant in seeking the aid and assistance of the two eyewitnesses whilst immediately dialling 100 to seek the help of the police. The testimonies of the eyewitnesses and the absence of the previous enmity between the informant and the accused assure the court of the testimony of the informant without requiring any corroborative evidence.

It is worth noting that the Metropolitan Magistrate Yashshree Marulkar of the 28th Court Esplanade, Mumbai held that the past convictions of the accused cannot be considered as a previous bad character of the accused under Section 54 of the Indian Evidence Act, 1872. The judge appreciates the prosecution for proving the criminal offence of the accused in the present case, wherein the prosecution held that the accused made sexual remarks whilst following the informant to foster personal interaction with her even though the informant clearly indicated her disinterest to have any interaction with the accused. The advocate for the accused asked for minimum punishment for the accused because the advocate held that the mother of the accused is quite old with some medical problems while the prosecution asked for maximum punishment for the accused because the prosecution allegedly proved the guilt of the accused in committing the offence of Sexual Harassment.

The magistrate held that sexual violence is an unlawful intrusion on the right of privacy and sanctity of a woman, wherein the said violence offends the self-esteem and dignity of a woman while degrading and humiliating the victim in a traumatic manner. The court held that sexual offences are not a crime against a woman, rather they are crimes against society.

The magistrate held that the actions of the accused were deliberate with the intention to harm the informant. Upon the examination of the facts and circumstances of the case, the magistrate was convinced beyond all reasonable doubts; hence, the magistrate passed the following orders under Section 248, Sub-Section 2 of the Code of Criminal Procedure, 1973 to have a deterrent effect on the accused:

  1. Under Section 354 of the Indian Penal Code, 1860: Rigorous Imprisonment for a period of three years with the payment of a fine of Rs. 1,000 and in default of payment of fine to suffer rigorous imprisonment for one month.
  2. Under Section 354A of the Indian Penal Code, 1860: Rigorous Imprisonment for a period of one year with the payment of a fine of Rs. 500 and in default of payment of fine to suffer rigorous imprisonment for fifteen days.
  3. Under Section 354B of the Indian Penal Code, 1860: Rigorous Imprisonment for a period of three years with the payment of a fine of Rs. 1,000 and in default of payment of fine to suffer rigorous imprisonment for one month.

The court ordered the three punishments to run concurrently. The court sentenced the accused to imprisonment of three years.

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