Final Order 1

Order Details: Copy of Judgment
Pdf Text: JUDGMENT 1
C.C.NO.832/PW/2018
Exh.
Received on : 07/06/2018
Decided on : 20/05/2019
Duration : 00 11 13
Y M D
CNR MHMM180066742018
IN THE COURT OF THE ADDL.CHIEF METROPOITAN MAGISTRATE,
9TH COURT, BANDRA, MUMBAI
JUDGMENT U/SEC. 355 OF THE CR. P. C.
(a) Serial number of the case : 832/PW/2018
(b) Date of commission of the offence. : 25/04/2018
(c) Name of the complainant, if any, : The State ( Khar Police
Station, C.R.No.166/2018)
(d) Name of the accused person, his
parentage and residence
: Joseph Albert Niscrita
Age: 29 yrs, Occ :Service
R/at : Khar, Mumbai.
(e) Offence complained of or proved. : U/Section 326 and 504 of
IPC.
(f) Plea of the accused person and
his examination, if any
: Accused pleaded not guilty.
(g) Final order : Accused is convicted.
(h) Date of order : 20/05/2019
ADVOCATES:
For the State : Miss M.F. Pakajade, A.P. P.
For accused : Shri. Tushar Patil
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JUDGMENT 2
C.C.NO.832/PW/2018
J U D G M E N T
(Delivered on 20th May 2019)
1. Accused is prosecuted for the offence punishable U/Sec. 326
and 504 of Indian Penal Code.
2. Factual matrix of the prosecution's case in brief as under :
On 25/04/2018 at about 09.00 p.m. near T.B. Hospital, on
foothpath of 34th Road, Khar (W), Mumbai, the accused was giving kick
blows on D.P. of Reliance company. The informant Anand Pawar tried
to convince him, therefore, accused became angry and beat him by
means of iron rod and thereby caused grievous injury on the legs of
informant. The accused abused to informant as well, therefore, on the
report of informant, an offence punishable u/sec.326 and 504 of I.P.C.
came to be registered against the accused.
3. Investigating officer has seized the rod from the spot in
presence of panchas. He recorded statement of witnesses. He arrested
the accused and submitted chargesheet in the court. The accused failed
to give bail, therefore, matter was tried on top priority. Charge was
framed against the accused at Exh.2, which read over and explained to
him to which he pleaded not guilty and claimed for trial. His defence
u/sec. 313 of Cr.P.C. is of total denial and false implication in this case.
4. Following points arise for my determination and my
findings against each of them for the reasons stated are as under :
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JUDGMENT 3
C.C.NO.832/PW/2018
Sr.
No.
Points Findings
i) Whether the prosecution proves that on 25/04/2018
at about 09.00 p.m. near T.B. Hospital, 34th Road,
Khar (W), Mumbai, accused voluntarily caused
grievous hurt to the informant Anand Pawar by
means of Iron Rod over his right leg knee and lower
part of the leg by dangerous weapon ?
In the
affirmative.
ii) Whether prosecution proves that on the same date,
time and place, accused intentionally insulted to
informant in filthy language and thereby gave
provocation to him intending that such provocation
will harm to public peace?
In the
negative.
iii) What order ? As per final
order
REASONS
5. In order to prove the guilt of accused, prosecution has
examined informant Anand Kondiram Pawar (P.W.1) at Exh.4,
witness Yogesh Laxman Dhuri (P.W.No.2) at Exh.5, panch witness
Vishwanath Parshuram Sawant (P.W.No.3) at Exh.6, investigating
officer Khalil Tajuddin Shaikh (P.W.No.4) at Exh.8 and medical officer
Dr. Raunak Sanjay Bhole (P.W.No.5) at Exh.9.
6. Apart from ocular evidence, prosecution also relied on
report of informant at Exh.5, Spot Panchanama at Exh.7, Medical
Certificate at Exh.10 and Iron Rod at ArticleA .
7. I have heard both side at length. Now, I appreciate oral and
documentary evidence available on record.
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JUDGMENT 4
C.C.NO.832/PW/2018
AS TO POINT NO.s 1 AND 2 :
8. Evidence of informant Anand Kondiram Pawar (P.W.1)
goes to show that on 24/4/2018 at about 8.30 to 8.45 p.m. when he
alongwith his friend were going from the lane of T.B. Hospital, Khar,
accused was giving kick blows to electric D.P. He gave understanding
to accused, therefore, accused started abusing and rushed on his
person. Accused gave blow of iron rod on his face, right leg and chest.
He sustained fractured injury to right leg and face. Thereafter, driver
came there and resolved the dispute. Yogesh Dhuri (P.W2) took him to
the hospital. He lodged report as per Exh.5. The informant Anand
Kondiram Pawar (P.W.1) was cross examined at length, but nothing
came on record to discredit or disbelieve his statement on material
point of assault by deadly weapon. Informant Anand (P.W.1) has
specifically denied defence of the accused that he lost his balance and
fell down, resulting into cause of grievous injury. Ld. Counsel for
accused argued that there was a dispute between informant and
accused on the ground of sleeping place of accused, therefore, this false
case has been lodged. I do not agree with this submission as because
this defence was not introduced to the informant.
9. The evidence of informant Anand Kondiram Pawar
(P.W.1) is supported by his friend Yogesh (P.W.2), medical officer
Dr. Raunak (P.W.5) and report at Exh.5. Evidence of Yogesh (P.W.2)
discloses that on the day of incident, he was walking on the road in
front of Potddar High School, Khar (W). He saw that accused was
giving kick blows to electric D.P. of Reliance. Accused was not listening
to anyone. After coming to home of 10 to 15 minutes, he heard the
noise. He rushed to the spot and found that his friend was lying there
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JUDGMENT 5
C.C.NO.832/PW/2018
and accused was holding a rod. He alongwith nearby residents rescued
the quarrel. He took the informant to hospital. In the given
circumstances by Yogesh (PW.2) it is proved that at the time of
incident, accused was holding iron rod and the informant was lying in
the injured condition. It is also evident that the accused was quarreling
and was not listening to anyone. It is not defence of the accused that
Yogesh had any grudge or enmity against the accused, compelling him
to depose against him. In such circumstances, evidence of
Yogesh(P.W.2) found to be natural and trustworthy.
10. Dr. Raunak (P.W.5) stated that he examined informant
and found tenderness, swelling, bony crepitus. He had taken Xray of
right ankle and found fracture distal fibula and posterior malleous on
right side ankle. He brought Xray report before the court. He issued
medical certificate as per Exh.10. During crossexamination he
admitted that medical certificate at Exh.10 was not issued by him.
However, this can not be fatal to the prosecution because usually
certificate is to be issued as per the entries of medicolegal register.
Only because Dr. Raunak has not issued certificate does not mean that
medical certificate is sham and bogus. The evidence of Dr. Raunak
goes to show that informant sustained grievous injury by dangerous
weapon.
11. Now coming to evidence of panch witness Vishwanath
(PW.3) it appears that police prepared spot panchanama in his presence
and seized two feet length iron rod before him. To discard testimony of
this witness, Ld. Counsel for accused submitted that this witness is
habitual panch witness, therefore, his evidence can not be relied on. It
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JUDGMENT 6
C.C.NO.832/PW/2018
is fact of judicial notice that Vishwanath(P.W.3) is a regular panch
witness of prosecution, but his evidence can not be undervalued,
specially when it is supported by circumstances and investigating
officerKhalil (P.W.4).
12. Investigating officer, Khalil (P.W.4) reproduced the
investigation carried out by him. On the report of informant registered
an offence against the accused. He recorded the statements of
informant and witnesses. He prepared spot panchanama as per Exh.7.
He seized iron rod. He identified iron rod which is at ArticleA. He
obtained medical certificate of injured and after completion of
investigation, he submitted chargesheet before the court.
13. On appreciating oral and documentary evidence on record,
it is crystal clear that accused assaulted to informant's leg by means of
iron rod, which is dangerous weapon likely to cause death. Hence,
prosecution undoubtedly proved that the accused committed an offence
punishable u/sec. 326 of I.P.C. However, there is no cogent and
convincing evidence to show that accused intentionally insulted to
informant in filthy language and thereby gave provocation to him
intending that such provocation will harm to public peace. In the result,
I record my findings as to Point no.1 in the affirmative and as to Point
no.2 in the negative. Now I take a pause to hear the accused on the
point of sentence.
( S. K. Mungilwar )
Addl. Chief Metropolitan Magistrate,
Date : 20/05/2019 9th Court, Bandra, Mumbai.
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JUDGMENT 7
C.C.NO.832/PW/2018
14. I have personally heard the accused on video
conferencing. He submitted that he is in the jail for more than of one
year. He has no criminal antecedents. He is sole earning member of his
family. Therefore, he prayed for leniency while inflicting the sentence.
On the contrary, learned APP submitted that the offence is serious in
nature , therefore severe punishment needs to be given.
15. Considering rival submissions of both sides, age of accused,
dependency upon him, long period undergone in prison and the facts
and circumstances of the case, in my considered opinion, following
sentence would be sufficient to meet the ends of justice. With this, I
proceed to pass following order.
ORDER
i) Accused Joseph Albert Niscrita is convicted u/sec. 248(2) of
Code of Criminal Procedure for the offence punishable under section
326 of Indian Penal Code and sentenced to suffer rigorous
imprisonment for 1 (One) year and 1(One) month and to pay fine of
Rs.10,000/ (Rs. Ten Thousand only) and in default of payment of fine,
he shall suffer further simple imprisonment for 10 (Ten) days.
ii) As per section 428 of Cr.P.C., set off be given to the accused
for the period he has undergone in custody.
iii) Accused Joseph Albert Niscrita is acquitted of the offence
punishable u/sec. 504 of Indian Penal Code as per section 248(1) of
Code of Criminal Procedure.
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JUDGMENT 8
C.C.NO.832/PW/2018
iv) Seized muddemal viz Iron Rod be destroyed after appeal
period is over.
v) Copy of the judgment be given to accused free of cost.
vi) Dictated and pronounced in open court.
sd/
( S. K. Mungilwar )
Addl. Chief Metropolitan Magistrate,
Date : 20/05/2019 9th Court, Bandra, Mumbai.
ASD.
Dictated on : 20/05/2019
Transcribed on : 20/05/2019
Signed on : 20/05/2019
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