Final Order 1

Order Details: Judgment Copy
Pdf Text: 1 C.C. NO. 2682/PS/2021
MHMM140113832021
Filed on : 14/12/2021.
Registered on : 14/12/2021.
Decided on : 19/08/2023.
Duration : 1Y 8M 4D.
Exh. : 17 .
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
40TH COURT, GIRGAON, MUMBAI.
(PRESIDED OVER BY SHRI.N.A.PATEL)
(a) The serial number of the case : 2682/PS/2021
(b) The date of the commission of
the offence
: 12/06/2020
(c) The name of the Informant : The State (Malbar Hill Police
Station in C. R. No. 182/2020)
(d) The name of the accused
person/s, age and residence
: 1. Gangaram Malayya
Maharaj,
Age – 52 years, Occ. Driver,
Res: Servant Room, Flat no.2,
19th floor, Awing, Great Eastern
Royals, Belasis road, Tardeo,
Mumbai34.
(e) The offence complained of : Under Sections 279 and 337 of
the Indian Penal Code and
Section 134(a) (b) punishable
under Section 187 of Motor
Vehicles Act.
(f) The plea of the accused and his
examination
: The accused pleaded not
guilty.
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(g) The final order : The accused is acquitted.
(h) The date of such order : 19/08/2023.
Ld. APP for the State : Shri. B. U. Gavali.
Ld. Adv. for the accused : Shri. Jagdish Singh.
J U D G M E N T
(Delivered on 19h August 2023)
The accused is facing trial for the offences punishable under
Sections 279 and 337 of the Indian Penal Code and Section 134 (a) (b)
punishable under Section 187 of Motor Vehicles Act.
The case of the prosecution in nutshell is as under ;
2. The incident took place on 12/06/2020 at about 18:44 hours
in front of Parshi Samshan Bhumi Maing gate, B. G. Kher Marg, Malbar
Hill, Mumbai. On that day the informant alongwith his brother were
walking towards Malbar Hill. That time in front of cremation ground, near
Hanging Garden around 18:45 hours suddenly one Blue colour Scoda car
came in a high speed in zigzag way and given dash to the informant. Due
to which he fallen down on footpath and become unconscious. Therefore,
he was taken to the Kambala Hill hospital. The informant has sustained
injury on his chest, right shoulder and back. Thus, the report.
3. On the basis of the report an offences punishable under
Sections 279 and 337 of the Indian Penal Code and Section 134 (a) (b)
punishable under Section 187 of Motor Vehicles Act was registered vide
Crime No. 82/2020. Investigating Officer has recorded the statements of
the witnesses, obtained the medical certificate and submitted the charge
sheet against accused.
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4. The accused was appeared. I have recorded particulars of
offence vide Exh.5 and plea vide Exh.6. Thereafter, prosecution has
examined only one witness. I have recorded the statement of the accused
under Section 313 of Cr.P.C. vide Exh.16.
5. Following points are arises for my determination and I have
recorded my findings for the reasons thereon is as below ;
Sr.
Nos
Points Findings
1. Whether prosecution proved that on
12/06/2020 at 18:44 hours at in front of
Parshi Smashan bhumi main gate, B. G. Kher
Marg, Malbar Hill, Mumbai accused drove
motorcar bearing no. MH48AK8868 in so
rash or negligent manner so as to endanger
human life or to be likely to caused hurt or
injury to any other person and thereby
committed an offence punishable under
Section 279 of the IPC ?
In negative.
2. Whether prosecution proved that on the
abovesaid date, time and place, accused
caused hurt to the informant on his right
hand, right chest, right shoulder and back by
driving abovesaid motorcar in a manner so
rash or negligent as to endanger human life
and thereby committed an offence punishable
under Section 337 of IPC ?
In negative.
3. Whether prosecution proved that on the
abovesaid date, time and place, accused
drove abovesaid vehicle and gave dash to the
informant and did not provide medial aid to
the informant and did not informed to police
about the said accident and thereby
committed an offence under Section 134 (a)
In negative.
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(b) punishable under Section 187 of the
Motor Vehicles Act ?
4. What order ? Accused is
acquitted.
R E A S O N S
AS TO POINT NOS. 1 TO 3 :
6. To bring home guilt of the accused the prosecution has
examined the informant Manish Kantilal Parekh as (PW1) vide Exh.07. He
deposed that on 12/06/2020 at 6:15 pm there was full lockdown. He and
his brother Sandip and Rajat Mehta were walking. That time one scoda
super car came from opposite direction and given dash to him. He was
taken by Rajat to Kambala Hill hospital. He was treated there. He has
sustained the injury on upper body and leg. Thereafter, on next day he
went to the police station. Thereafter, he has lodged the FIR vide Exh.8. He
does not remember the number of the vehicle. He was at corner of the road
when car hit him. The said road was one way road of 10 feet. Two four
wheeler can easily pass. The said one way runs from Malbar Hill to Kemps
corner. He was going towards Malbar Hill by walk from Kemps corner. The
car driver was driving the car in zigzag way and given dash to him. The car
driver not stop there and ran away. He has not seen the driver of the
vehicle while driving the car. He identified the photographs and proved
vide ArticleA.
7. In support of this contention the prosecution has examined
Sandip Kantilal Parekh as (PW2) vide Exh.9. He deposed that Manish is his
brother. On 12/06/2020 at 6:15 pm he and Manish were walking
alongwith Rajat Mehta from Kemps corner to Malbar Hill. That time one
Blue colour Scoda car came in zigzag manner from Malbar Hill and near
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Parsi Cemetery (Kabristan) given dash to Manish and went away. They
were on right side footpath that time. Thereafter, they have taken Manish
to Kambala hospital. He has not seen the driver of the vehicle. He does not
know the number of the vehicle.
8. The prosecution has also examined Nirav Dilip Udani as (PW3)
vide Exh.11. He deposed that the owner of the car bearing no. MH48AK
8868 is his brother’s wife. But the said vehicle was with him. The accused
was his driver since 1415 years. On 12/06/2020 the said car was with the
accused. Police has inquired him and he does not know anything about the
accident.
9. Tanaji Shivaji Kadam (PW4) was also examined by the
prosecution vide Exh.14. He deposed that on 11/06/2020 he was attached
to Malbar hill police station as SHO. The FIR in crime no. 82/20 was
registered by him as per the statement of the informant vide Exh.8.
Informant initially came but she was suffering due to pain of accident
injuries. Therefore, FIR was lodged afterwards. He has visited the spot of
incident and prepared the spot panchnama. The panchnama was proved
vide Exh.10. They trace the mobile number of the owner on the basis of
vehicle number and then call the accused to the police station. He has
issued notice to the accused under Section 41A of Cr. PC vide Exh.15.
Thereafter, he has recorded the statement of the relatives of the victim. He
has also obtained the photographs and it was attached to the chargesheet
and proved vide ArticleA collectively. The vehicle was in the name of
Pinky Udani. The owner of the vehicle has given the statement that accused
was driving vehicle at relevant time. It was revealed in the investigation
that accused has driven his vehicle in rash and negligent manner and given
dash to the informant and without taking her to the hospital ran away. He
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identified the accused in the Court.
10. To prove the guilt of the accused the prosecution has
examined as much as four witnesses. Out of these four witnesses Tanaji
Shivaji Kadam (PW4) is the Investigating Officer and Nirav Dilip Udani
(PW3) is the owner of the vehicle. Both were not present on the spot. It
means that case of the prosecution is depend on the testimony of two
witnesses. i.e. Manish Kantilal Parekh (PW1) injured and Sandip Kantilal
Parekh (PW2) who is claimed to be eyewitness. Both of them deposed that
on 12/06/2020 at 6:15 pm when they were walking on the road accused
came in high speed in zigzag manner and gave dash to the informant.
Therefore, he has lodged the FIR vide Exh.8. The evidence of these
witnesses is fully corroborate with the FIR and also consistent on material
particulars.
11. It is an admitted fact that none of the witnesses has seen the
accused. Therefore, there is question of identification. As it is criminal case
burden is on the prosecution to prove that accused was driving the vehicle
which was involved in the accident. To show that accused was driving the
vehicle the prosecution has examined Nirav Dilip Udani (PW3) who is the
owner of the car and he has specifically deposed that on 12/06/2020
accused having the said vehicle. However, this witness is not eyewitness.
Merely because he has given the vehicle to the driver accused does not
mean that accused is the person who was driving the vehicle at the relevant
time. None of the witnesses has seen the accused while driving the vehicle
at the time of accident. Therefore, unless there is direct evidence against
the accused regarding the identification, it cannot be said that he was
driving at the time of incident. Even in the crossexamination it is
specifically deposed by the Investigating Officer that informant has given
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the statement that car driver was a lady. This admission given by the
Investigating Officer also shows that eyewitness was not sure whether lady
was driving the vehicle or male was driving the vehicle. Therefore, this also
creates doubt in the story of the prosecution. Handing over the vehicle to
the person is one thing and driving vehicle is other thing. There must be
specific evidence on record that accused was the person who was driving
vehicle at the relevant time. The prosecution must prove beyond
reasonable doubt with the positive evidence that accused was seen while
driving the vehicle at relevant time. Merely because vehicle was with the
accused on that day is not sufficient to hold accused guilty for the rash and
negligent driving. Therefore, in my view accused is entitled for benefit of
doubt. Therefore, I answer point nos. 1 to 3 in negative.
AS TO POINT NO. 4 :
12. In answer to this point. I pass the following order
: O R D E R :
1. Accused is hereby acquitted of the offences punishable under
Sections 279 and 337 of the Indian Penal Code and Section 134 (a)
(b) punishable under Section 187 of the Motor Vehicles Act vide
Section 255(1) of the Code of Criminal Procedure.
2. His bail bond stands cancelled.
3. Accused is directed to furnish the bail as per Section 437A of the
Cr.P.C.
( Nadeem A. Patel )
Metropolitan Magistrate,
Date: 19/08/2023. 40th Court, Girgaon, Mumbai.
Dictated on : 19/08/2023.
Transcribed on : 19/08/2023.
Signed on : 19/08/2023.
PPK.
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