Final Order 1

Order Details: Copy of Judgment .
Pdf Text: CNR NO. MHMM120313532018
Presented on : 29.12.2005
Registered on : 29.12.2005
Decided on : 31.08.2019
Duration : 13.Y 08.M 02 D.
Exhibit – 25
IN THE COURT OF METROPOLITAN MAGISTRATE, 25TH COURT,
MAZGAON, MUMBAI
( Presided over by P. I. Mokashi )
JUDGMENT
(Under Section 355 of Code of Criminal Procedure)
a. Serial Number of The case : 668/PW/2018
Old C. C. No. 957/PW/2005
b. The date of commission of
offence
: 11.10.2004
c. Name of the complainant,
if any,
: The State of Maharashtra,
Through the Sr. Police Inspector of
Dadar Police Station Mumbai.
d. Name of Police station and
C. R. No.
: Dadar Police station, Mumbai
C. R. No.243/2004
e. Name of the accused
person/s, his parentage
and residence.
: 1) Vinayak Chandrakant Devrukhkar
Age 41 years,
R/o. 2/34, Shapurji Palanji Wadi,
near Century Bazar, Prabhadevi,
Mumbai.
2) Suhas Sridhar Patil
Age 39 years,
R/o. 1/22, Shapurji Palanji Wadi,
near Century Bazar, Prabhadevi,
Mumbai.
3) Sadanand Shankar Sarvankar
Age 61 years, R/o. 82, Shivkrupa,
New Prabhadevi, Mumbai – 25.
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: 4) Manohar Laxman Kambli
Age 58 years,
R/o. 2/6, Hendre Building, Sayani
Road, Prabhadevi, Mumbai.
5) Prakash Sakharam Pawar
Age 48 years, R/o. Kashinath
Dhuruwadi, Utkarsh Seva Sangh,
Rajabhau Desai Marg, Prabhadevi,
Mumbai.
f Offences complained of or
proved
: U/Secs.143, 147, 149, 323, 427, 336 of
the Indian Penal Code.
g The plea of the accused
person and his examination
if any
: Accused pleaded not guilty
h Final Order : Accused are acquitted of offences
punishable U/Sec. 143, 147, 149, 323,
427, 336 of the Indian Penal Code.
i The date of such Order : 31.08.2019
Appearance :
Shri. Shashikant Eghare learned A. P. P. for the State.
Shri. A. V. Parte – Ld. Advocate for the accused
JUDGMENT
(Delivered on 31st August 2019)
Accused are facing trial for offences punishable Under Sections
143, 147, 323, 427, 336 r/w 149 of the Indian Penal Code.
The case of prosecution in brief is as under :
The informant Rajesh Shivajirao Kamathe lodged complaint
against accused No. 1 to 5 at Dadar Police Station that, on 11.10.2004 at
about 19.15 hours, at Satya Wadi, Hatiskar Marg, Prabhadevi, Mumbai,
accused No. 3 Sadanand Sarvankar came there. Other persons accompanying
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Sadanand Sravankar abused and assaulted Vinayak Gawas by fists and kicks
blows. One of them hurled stone towards red coloured car breaking its rear
glass. Another person hurled stone towards the said car and broke glass of
right side rear door, thereby caused damage to the car. They also assaulted
driver of Rajan Bhosle namely Prashant Keni. They had also thrown out
pamphlets of Rajan Bhosle regarding election campaign from the dicky of
motorcar of Rajan Bhosle. Thereafter, Rajan Bhosle came there and there was
altercation between Sadanand Sarvankar and Rajan Bhosle. Sadanand
Sarvanker manhandeled Rajan Bhosle. Persons accompanying Sadanand
Sarvankar assaulted three persons who came with Gawas in his car.
Thereafter, they went away from there. Injured persons in the incident were
taken to the Hospital by the Bit Marshall. Thereby Sadanand Sarvankar and 9
to 10 persons accompanying him assaulted Rajan Bhosle and volunteers of
his party, caused damage to the car of Gawas by forming unlawful assembly
at the spot of incident.
2. On the basis of said complaint, Crime No.243/2004 came to be
registered. PSI Jaywant Sankpal investigated said offence and he filed
chargesheet against the accused in the Court on 11.10.2004.
3. Charge is framed under Sections 143, 147, 323, 336 and 427
r/w 149 of the Indian Penal Code against accused No.1 to 5 at Exh.10. The
contents of charge were read over and explained to accused No.1 to 5 in
vernacular to which they not pleaded guilty and claimed to be tried.
Statement of accused No.3 under Section 313 of Code of Criminal Procedure
is recorded at Exh22 as incriminating evidence has come only against him.
He denied all allegations made against him.
4. On these facts of the case, following points arose for my
determination and my findings thereon with reasons against each point are
as under:
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Sr.
No.
Points Findings
1 Whether prosecution proves that on 11.10.2004 at
about 19:15 hours, at Electric pole No. PC8 and
PC9, Hatiskar Road, SatyaWadi, Prabhadevi,
Mumbai, accused No.1 to 5 were members of
unlawful assembly, the common object of which
was to assault and abuse informant and witnesses ?
No.
2 Whether prosecution proves that on above said date
time and place, accused No.1 to 5 were members of
unlawful assembly, and in prosecution of the
common object of such assembly to assault and
abuse informant and witnesses committed offence
of rioting ?
No.
3 Whether prosecution proves that on above said date
time and place, accused No.1 to 5 in prosecution of
common object of unlawful assembly voluntarily
caused hurt to candidate of Congress Party Rajan
Bhosale and other witnesses ?
No.
4 Whether prosecution proves that on above said date
time and place, accused No.1 to 5 were members of
unlawful assembly in prosecution of common
object, committed riot so rashly and negligently as
to endanger human life and personal safety of
others ?
No.
5 Whether prosecution proves that on above said date
time and place, accused No.1 to 5 in prosecution of
common object, committed mischief by causing loss
or damage being more than Rs.50/ to vehicles
parked on the road ?
No.
6 What order ? Accused No.1 to
5 are acquitted.
R E A S O N S
5. To substantiate charge against the accused, the prosecution has
examined in all five witnesses,
a. Prashant Vijaynath Keni (PW1)at Exhibit13,
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b. Maruti LImbaji Tikhe (PW2) at Exhibit14,
c. Shahaji @ Rajan Bhaskar Bhosle (PW3) at Exhibit17,
d. Prashant Prakash Pusalkar (PW4) at Exhibit18,
e. Investigating Officer Jaywant Pandurang Sankpal (PW5) at Exhibit
21.
The prosecution has filed on record FIR lodged by the informant
at Police Station (Exh22), Spot panchnama (Exh23), Injury certificates
(Exh19 to 21) and statements of witnesses. Accused No.1 to 5 did not
examine any witnesses in their defence.
AS TO POINT NO.1 to 5 :
Points No.1 to 4 are interconnected with each other hence, they
are discussed together.
6. To prove its case the prosecution must prove that, 11.10.2004
at about 19:15 hours, at Electric pole No. PC8 and PC9, Hatiskar Road,
Satya Wadi, Prabhadevi, Mumbai, accused No.1 to 5 were members of
unlawful assembly, the common object of which was to assault and abuse
informant and witnesses, they committed offence of rioting, voluntarily
caused hurt to candidate of Congress Party Rajan Bhosale and other
witnesses, committed riot so rashly and negligently as to endanger human
life and personal safety of others and committed mischief by causing loss or
damage being more than Rs.50/ to vehicles parked on the road.
7. Heard learned A.P.P. He argued that, prosecution has examined
five witnesses. Prashant Vijaynath Keni (PW1) and Shahaji @ Rajan Bhaskar
Bhosle (PW3) though turned hostile, remaining prosecution witnesses are
supporting the case of prosecution. It is also proved in the evidence of
Investigating officer that accused have committed offences punishable under
sections 143, 147, 323, 336, 427, r/w 149 of the Indian Penal Code.
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Therefore, he prayed that, accused No.1 to 5 be convicted for above said
offences.
8. Heard, learned counsel for accused No.1 to 5. He argued that,
not a single prosecution witness has proved involvement of accused No.1 to 5
in commission of offence. The prosecution has falsely implicated accused
No.1 to 5 in this case. Prosecution has failed to prove its case beyond
reasonable doubt against accused No.1 to 5. Hence, he prayed to acquit
accused No.1 to 5.
9. To substantiate its case, the prosecution has examined Prashant
Vijaynath Keni (PW1). He deposed in his examinationinchief (Exh13) that
he knew Rajan Bhosle. He was driver on his Zen Car bearing registration No.
MH01958, in the year 2004. On 11.10.2004, Soniya Gandhi had come to
Maratha Udyog Bhavan, Prabhadevi for campaigning. After completing the
campaign, he took Rajan Bhosle in his car to his home. Rajan Bhosle told him
to go for lunch, at about 3.30 to 3.45 p.m. He returned to the house of Rajan
Bhosle after having lunch, at about 4.00 to 4.30 p.m. Thereafter, he took
Rajan Bhosle in his car with one police guard to Prabhadevi and later on to
Wadi to meet some volunteers of the party. At that time, two persons of
Shivsena came on the bike. They assaulted him by fists, kick blows and
hockey stick. Thereafter, he fell down. One vehicle of Congress Party came
there, these two persons from Shivsena broke the glass of that vehicle. Sada
Sarvankar came there. He rescued him and took him to KEM hospital. He
could not identify accused who assaulted him.
Prashant Vijaynath Keni (PW1) resiles from his previous
statement. The learned A.P.P. crossexamined said witness but, he failed to
bring on record that accused assaulted said witness.
The learned counsel for the accused crossexamined said witness
Prashant keni (PW1) and brought on record that, people accompanying
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Sada Sarvankar assaulted him.
10. The prosecution has further examined Maruti Limbaji Tikhe
(PW2). He deposed in his examination in chief (Exh14) that, in the year
2004, he was working in Congress Party. He knew Rajan Bhosle, he was
having Maruti 800 car bearing registration No. MH06C3051. In the year
2004, the candidate from Congress Party was Rajan Bhosle and from
Shivsena was Sada Sarvankar. On 11.10.2004, Vinayak Dhavas was
accompanying him in his car. At that time, Vinayak received phone call of
Rajan Bhosle. He called him at Satya Wadi, therefore himself, Vinayak
Dhavas and one Prashant Pusalkar went to Satya Wadi. When they reached
there, Zen Car of Rajan Bhosle was already parked there. He parked his car
in front of Rajan Bhosle's car. Two persons came on motorcycle. They parked
their motorcycle in between two cars. They started to abuse Vinayak Dhavas.
Thereafter, many persons on motorcycles came there. They assaulted Vinayak
Gawas, himself and driver of Rajan Bhosle by fists and kick blows. They
broke rear glass and glass of door of his car by throwing stones. Rajan Bhosle
came there. There was altercation between bodyguard of Rajan Bhosle and
Sada Sarvankar. Bodyguard of Rajan Bhosle took out the gun at that time.
He could not identify accused. He could not identify the stone which was
thrown on his vehicle.
The learned counsel for the accused crossexamined said witness
and brought on record that, that there was election campaigning at the time
of incident. there was political contest between Sada Sarvankar and
Congress Party. He admits that, he parked his vehicle in front of vehicle of
Rajan Bhosle, at that time the incident occurred. Rajan Bhosle was not
present in his car at that time. He admits that after the incident the police
arrived at the spot of incident.
11. The prosecution further examined Shahaji @ Rajan Bhaskar
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Bhosle (PW3). He deposed in his chiefexamination (Exh.17) that he was
contesting election for Congress Party in the year 2004. At that time, he was
owning Zen car bearing Registration No. MH01589. He do not know
Prashant Keni (PW1). On 11.10.2004, he had been to Prabhadevi area to
meet Congress party workers in his Zen car. He went in the building situated
in one wadi area. Other party workers had gathered below the building. He
heard noise from the crowd standing below, therefore he came down from
the building. When he came down, the quarrel between two groups was
stopped. There was quarrel between Shivsena Party workers and Congress
Party Workers. He do not know who were present from Shivsena Party at the
time of incident. The witness resiles from his previous statement hence,
learned A.P.P cross examined him.
Shahaji @ Rajan Bhaskar Bhosle (PW3) deposed in his cross
examination that, he knew accused Sada Sarvankar since long time. He was
contesting election against me from Shivsena Party. He admits that he do not
know Prashant Keni (PW1) was driving hid car on that day. He denied case
of prosecution in his crossexamination.
12. The prosecution further examined Prashant Prakash Pusalkar
(PW4). He deposed in his chiefexamination (Exh.18) that, In the year 2004,
he was Congress Party worker. Rajan Bhosle was contesting election for
Congress Party in the year 2004. Sada Sarvankar was contesting election for
Shivsena Party. On 11.10.2004, Sada Sarvankar manhandled him. Maruti
Tikhe, driver of Rajan Bhosle, Vinayak Gawas and himself were assaulted by
Sada Sarvankar and persons accompanying him.
The learned counsel for the accused crossexamined the said
witness Prashant Pusalkar (PW4) and brought on record that at the time of
incident he was not accompanying Gawas, he had been to charge his mobile
phone. He was in semi conscious state when police recorded his statement.
Police recorded his statement in the hospital.
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13. The prosecution has further examined Investigating Officer
namely Jaywant Pandurang Sankpal (PW5). He deposed in his examination
inchief (Exh21) that On 11.10.2004, he was on duty as PSO at Dadar Police
Station. He was on day duty from 8.00 a.m. to 8.00 p.m. on that day. He
registered Crime No. 243/2004. The prosecution proved contents of FIR
(Exh22) in the examinationinchief of Investigating Officer Jaywant
Pandurang Sankpal (PW5) as the informant Rajesh Kamthe is dead.
14. He had drawn spot panchnama on the same day in between
22.00 to 23.00 hours. There was one red coloured Maruti 800 Car at the spot
of incident. Its rear glass was broken. Its rear window glass of right side was
broken. There was one more silver coloured Maruti Zen Car. There were
pieces of glass and one stone lying at the spot of incident and one stone was
lying on rear sit of Maruti 800 Car. Dicky of silver Zen Car was open. It
consisted of pamphlets of Rajan Bhosle regarding election campaign. He
seized pieces of glass, two stones and three pamphlets in presence of two
panchas by drawing panchnama (Exh23).
15. He recorded statement of Prashant Keni and Rajan Bhosle as per
their narration. He is shown contents of Portion Mark – A (Exh25) of
statement of Rajan Bhosle (PW3). Medical Certificates are obtained by him.
Thereafter, he filed chargesheet against accused. He identified pamphlets
(ArticleA). He also identified stone (Article B) .
Learned counsel for the accused crossexamined said witness
Jaywant Pandurang Sankpal (PW5) and brought on record that, he did not
conduct Identification Parade to identify unknown accused. He recorded
statement of Prashant Pusalkar in the hospital. He admits in his cross
examination that, it is not specifically mentioned in statement of Pusalkar
(PW4) that he was assaulted by Sada Sarvankar.
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16. Perused documents produced on record filed by prosecution and
evidence adduced by prosecution witnesses. Prashant Vijaynath Keni (PW1)
and Shahaji @ Rajan Bhaskar Bhosle (PW3) turned hostile, They are
deposing contrary to their statements before the police. Shahaji @ Rajan
Bhaskar Bhosle (PW3) deposed in his chiefexamination (Exh.17), that he did
not witness the incident. The prosecution tried to prove portion MarkA of
the statement of Shahaji @ Rajan Bhaskar Bhosle (PW3) in the examination
inChief (Exh21) of Investigating Officer Jaywant Pandurang Sankpal (PW
5) which cannot be relied unless corroborated with other prosecution
witnesses. Thus, no prosecution witnesses are deposing specifically against
accused No.1 to 5 that, they assaulted and further caused damage to vehicles,
they are deposing about people who assaulted and caused damage to vehicle,
except Prashant Prakash Pusalkar (PW4). He deposed in his examinationin
chief (Exh18) that, Sada Sarvankar manhandled him. Maruti Tikhe, driver of
Rajan Bhosle, Vinayak Gawas and himself were assaulted by Sada Sarvankar
and persons accompanying him. On the contrary, it is proved in his cross
examination that, at the time of incident he was not accompanying Gawas,
he had been to charge his mobile phone. He was in semi conscious state
when police recorded his statement in the hospital. Therefore, he is deposing
contrary to what he deposed in his examinationinchief. His evidence also
does not corroborates with any other prosecution witnesses. Therefore, it
creates doubt about involvement of accused No.1 to 5 in the incident.
17. The most important fact is that, the informant Rajesh Kamthe is
dead, therefore his evidence could not be recorded. Thus his FIR is not
proved by the prosecution with sufficient and cogent evidence. The fact
remains unproved that accused No.3 and persons accompanying him
manhandled Shahaji @ Rajan Bhaskar Bhosle (PW3) as he is not supporting
the case of prosecution. Hence, I answer Points No. 1 to 5 in the negative.
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AS TO POINT NO. 6 :
18. In view of findings of points No.1 to 4, the prosecution failed to
prove beyond reasonable doubt that, 11.10.2004 at about 19:15 hours, at
Electric pole No. PC8 and PC9, Hatiskar Road, Satya Wadi, Prabhadevi,
Mumbai, accused No.1 to 5 were members of unlawful assembly, the
common object of which was to assault and abuse informant and witnesses,
they committed offence of rioting, voluntarily caused hurt to candidate of
Congress Party Rajan Bhosale and other witnesses, committed riot so rashly
and negligently as to endanger human life and personal safety of others and
committed mischief by causing loss or damage being more than Rs.50/ to
vehicles parked on the road. It is also necessary to dispose of seized material
in accordance with law. Accused No.1 to 5 have already furnished bail in
compliance of section 437A of the Code of Criminal Procedure. Hence, in
answer to point No.6, I pass following order :
O R D E R
1. Accused No.1 to 5 are acquitted of offence punishable under section
143, 147, 323, 336, 427 r/w 149 of the Indian Penal Code vide section
248(1) of the Code of Criminal Procedure.
2. Their bail bonds are cancelled.
3. The seized material i.e. one stone, one piece of cement and pamphlets
being worthless be destroyed after one year of lapse of appeal period.
Judgment is delivered in the open Court.
Date: 31.08.2019.
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