Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment -- 1 -- C.C. No.3076/PS/2019
MHMM180094852019 Received on 16.10.2019
Registered on 16.10.2019
Decided on 17.10.2023
Duration 04 Y. 00 M. 01 D.
IN THE COURT OF ADDL CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI.
(Presided over by K.H. Thombre)
Exh.No.15
JUDGMENT
(As per Section 355 of Code of Criminal Procedure)
A. The serial number of the
case
: C.C. No.3076/PS/2019
B. The date of commission of
the offence
: 23.09.2018
C. The name of the
complainant (if any)
: State of Maharashtra through Khar
Police Station.( C.R.No.388/2018) at
the instance of informant Jenita
Gandhi.
D. The name of the accused
person, and his parentage
and residence
: Dilip Ghanshyam Tahilramani,
Age: 65 years,
Occupation: Actor.
R/o.1602, Metropolis, C Wing, J.P.
Road, Andheri(W), Mumbai
E. The offences complained of
or proved
: Under Section 279, 337 of the Indian
Penal Code r.w.185 of The Motor
Vehicle Act.
F. The plea of the accused and
his examination (if any)
: The accused pleaded not guilty.
G. The final order : The accused is convicted
H. The date of such order : 17/10/2023
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Learned counsel for Prosecution: APP Smt.M.F. Pakajade &
Shri. Kishor Patil
Ld. Counsel for Accused : Adv. Mr. Jitendra Pathade,
Mrs.Kunickaa Sadanand &
Mr. Rajdeep Lahiri
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J U D G M E N T
(Delivered on 17/10 /2023 )
The accused is charged for the offence punishable under section
279, 337 of The Indian Penal Code,1860 (For short IPC) and under section
185 of The Motor Vehicle Act, 1988 (For short MV Act).
2. The case of prosecution in brief is as under---
On 23/09/2018 at about 9.00 p.m. the informant Jenita Gandhi
and her friend Gaurav Chug were proceeding in an auto rickshaw bearing
No.MH-02-BU-3190. The informant left from Pali Naka and they are going to
their home. The auto rickshaw reached at Toyota Showroom, C.D. Marg,
Khar(W), Mumbai one vehicle gave dash forcefully to the auto rickshaw, the
informant got jerk to his neck and back. They alighted from the auto
rickshaw. The driver of the car drove his car in a high speed towards
Santacruz. The informant and her friend chased the car with auto rickshaw.
As there was crowd of people due to Ganpati Visarjan the driver of the car
could not able to drove the car in a high speed. The informant reached to the
car at Indusland Bank, Linking Road, Khar(W). They found that the driver of
the car is film actor i.e. accused. The informant and her friend asked the
accused to get down. The accused alighted from the car and started arguing
with them. At that time the accused was under the influence of alcohol. The
number of the car was MH-02-EK-2046. The accused started shoving and
pommeling with Gaurav. Then Gaurav dialed 100 number. Then police came
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there, they took the accused alongwith informant and her friend to the police
station. The informant lodged the report of the incidence at police station
Khar.
3. On the report of the informant offence was registered vide crime
No. 388/2018 punishable under sections 279, 337 of IPC and under section185
of The Motor Vehicle Act. After completion of investigation charge-sheet is
filed against the accused.
4. My Ld. Predecessor explained and read over the particulars of
the offence to the accused in vernacular. Accused pleaded not guilty and
claimed to be tried. Plea of the accused was recorded below Exh.03.
5. The prosecution has examined in all four witnesses P.W.No.1
Jenita Kashyap Gandhi, informant (Exh.04), P.W.No.2 Gaurav Vijay Chug
(Exh.06), P.W.No.3 Dr. Purva Dilip Kudtarkar (Exh.07) and P.W.No.4 Shilpa
Vijay Davekar, Investigation Officer (Exh.10). Statement of the accused under
Section 313(1)(b) of Code of Criminal Procedure is recorded (Exh.12). The
defence of the accused is that due to Ganpati Visarjan there was a huge crowd
on the road. On the instigation of the friend of the informant people were
chasing his car and they forcibly opened driver car door while car was in
motion and forcibly dragged him out of the car. The accused being known
person is victimized by social media predators.
6. Considering the evidence and arguments of the parties,
following points arose for determination. Findings are recorded for reasons to
follow.
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Sr.No POINTS FINDINGS
1] Whether the prosecution proved that the
accused on 23/09/2018 at 21.00 hrs. near
Toyota Showroom, Opp. China Garden
Restaurant, C.D. Marg, Khar(W), Mumbai
drove motor car bearing No.MH-02-EK-2046
on a public way in rash or negligent manner
as to endanger human life or to be likely to
cause hurt or injury to any other person and
thereby committed an offence punishable
under Section 279 of Indian Penal Code?
Yes
2] Whether the prosecution proved that on the
aforesaid date, time and place the accused
caused hurt to the informant Jenita Kashyap
Gandhi by giving dash of his motor car rashly
or negligently so as to endanger human life or
the personal safety of others and thereby
committed an offence punishable under
Section 337 of Indian Penal Code?
Yes
3] Whether the prosecution proved that on the
aforesaid date, time and place the accused
was found driving motor car bearing No.MH-
02-EK-2046 in his possession under the
influence of alcohol thereby committed an
offence punishable under Section 185(a) of
The Motor Vehicle Act?
Yes
4] What order? Accused is convicted.
R E A S O N S
AS TO POINT NO.1 TO 3:
7. The admitted facts as seen from the evidence on record that the
accused was driving the offending vehicle at the time of incidence. The
offending vehicle was driven on public road. The incidence happened on the
day of Ganesh visarjan festival and there was huge traffic on the road. To
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ascertain rash and negligent driving of the vehicle by the accused resulting in
causing hurt to the informant, evidence on record needs to be appreciated.
8. The informant (P.W.1) Jenita Gandhi deposed that she alongwith
her friend Gaurav were proceeding in an auto rickshaw towards her house. In
front of Toyoto showroom the vehicle of accused gave dash to the auto
rickshaw from back side. The informant got jerk to her back and neck due to
dash. The auto rickshaw was also damaged from backside. They followed the
vehicle of the accused. In continuation P.W.1 Jenita deposed that due to
Ganesh festival there was rush of vehicles. The vehicle of the accused was
stopped in front of her house. They took out the accused out of the car. The
accused started abusing to them. The accused was trying to run away therefore
she obtained car key. They stopped the accused and called the police by calling
on 100 number. (P.W.1) Jenita admitted contents of the FIR Exh.05 as correct
and deposed that she went to Bhabha Hospital.
9. In cross-examination (P.W.1) Jenita admitted that at the time of
incidence there was huge traffic on the road. Her friend Gaurav followed the
car by running. At the time of giving call to the police they mentioned that the
accused was trying to run. Before they reached towards the vehicle of the
accused, the accused was driving in random condition. Auto rickshaw seat hit
on her neck and she posted the pictures of the accused on social media. The
informant (P.W.1) Jenita denied in her cross-examination that there was speed
breaker on the spot, there was no damage to the vehicle and the vehicle was
dashed to the auto as front vehicle was stopped.
10. The incidence is narrated by the (P.W.2) Gaurav Chug that he
alongwith the informant was proceeding from Pali hill to the house of
informant in an auto rickshaw. The car of the accused dashed to the auto
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rickshaw on Khar road in front of Toyato showroom. The informant sustained
Jerk due to dash. They were trying to stop the car of the accused. The accused
did not stop, they followed the car of accused by auto rickshaw. The vehicle of
the accused was stopped in front of Induslnd bank, he went towards the
vehicle of the accused. Accused did not come out of the car and abuses them.
The accused was under the influence of alcohol. (P.W.2) Gaurav narrated the
incidence that accused was trying to push the informant, he came in between
and stopped pushing. So many people gathered on the spot and one of them
trying to take the car key of the accused. Then he called police on 100 number.
11. In cross-examination (P.W.2) Gaurav deposed that the incidence
took place at about 9.00 to 9.30 p.m. He called the police on 100 number at
about 9.45 to 10.00 p.m. He is not aware of having speed breaker at the spot of
incidence. When they followed there was no traffic on the road. He chased the
car of the accused. The accused voluntarily stopped his car when the accused
was moving (P.W.2) Gaurav tried to open the door of the car. (P.W.2) Gaurav
further admitted in cross-examination that before and after pulling the accused
out of the car the accused was abusing to them. The door of the car was
forcibly opened by (P.W.2) Gaurav. The car involved in accident was Honda
Creta he pulled the accused out of car from right side. (P.W.2) Gaurav
answered to a question that he was hundred percent sure that accused was in
drunken condition. It is admitted by (P.W.2) Gaurav that he taken the pictures
of the accused at the time of incidence, posted it on social media and encashed
those pictures.
12. The medical officer (P.W.3) Dr. Purva Kudtarkar deposed that on
examination of (P.W.1) Jenita no external injury was found and she was
complaining about pain in her neck. The injured was referred for X-ray and
injection of Diclofence was administered on the injured. Accordingly, Medico-
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Legal Certificate (Exh. 08) was issued by her.
13. In further examination-in-chief (P.W.3) Dr. Purva Kudtarkar
deposed that patient Dilip Tahil (accused) was brought to her through official
of Khar police station to check whether there was alcohol in his body or not.
On examination of the accused (P.W.3) Dr. Purva Kudtarkar observed the
smell of alcohol was present, style of walking was unsteady, eye pupils were
dilated, speech was incoherent and found that patient has consumed alcohol.
The accused refused to give his blood sample for examination. One abrasion
measuring 1 x 0.5cm was found on the forearm of the accused. The patient
refused to take Titaness injection. The Medical Notes (Exh.09) were taken
about examination of the accused.
14. In cross-examination (P.W.3) Dr. Purva Kudtarkar deposed that
informant was brought on 29th September, then stated that informant was
brought on 23rd September. There was complain of pain in neck of the
informant but not on specific portion of neck has been admitted by (P.W.3) Dr.
Purva Kudtarkar. The answer given by (P.W.3) Dr. Purva in cross-
examination that the injury to the informant was fresh. The injury might have
been sustained three to four days back. (P.W.3) Dr. Purva Kudtarkar admitted
that on the basis of statement made by the informant there was injury to her
and there was no clinical finding of the said injury. In respect of medical
examination of the accused (P.W.3) Dr. Purva deposed that smell of alcohol
and Spirit are similar. The suggestion is denied by (P.W.3) Dr. Purva that the
accused consumed alcohol this finding was given by her as she felt smell of
spirit. The suggestion is denied by (P.W.3) Dr. Purva that person may walk
unsteadily due to old age or mental trauma caused by him due to arrest.
(P.W.3) Dr. Purva answered that accused refused to take blood sample hence
existence of alcohol could not be ascertained. The suggestion is denied by
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(P.W.3) Dr. Purva that false statement is made by her that accused refused to
take blood sample.
15. (P.W.No.4) Shilpa Vijay Davekar deposed that she registered
FIR (Exh.05) and conducted investigation. The statement of witnesses was
recorded. The accused was referred for medical examination. Medico Legal
Certificate of the accused and the informant were obtained and filed charge-
sheet. In cross-examination (P.W.4) Shilpa Davekar admitted that the
incidence has happened on the festival of Ganpati Visarjan. There was heavy
traffic on the road and vehicles were running in slow speed. It is also admitted
by (P.W.4) Shilpa Davekar that no tyre marks are seen at the place of
incidence and no record of mark of dash on the vehicle of accused is filed.
The suggestion that false charge-sheet is filed is denied by (P.W.4) Shilpa
Davekar. There is nothing in the evidence of (P.W.4) Shilpa Davekar to
discard or discredit her testimony.
16. Ld. A.P.P. submitted by written notes of argument (Exh. 13) that
the evidence of informant, eye witness and the Medical Officer proved that
accused has dashed to the auto rickshaw resulting in jerk to the neck and back
of the informant. The offence under Section 279 and 337 is proved against the
accused. The offending car was driven by the accused under influence of
alcohol is proved from the evidence of (P.W. 3) Dr. Purva. Ld. Advocate for
the accused vide written notes of argument (Exh. 14) submitted that as per
evidence of prosecution witness the allegations are that car of the accused has
given hard dash to the auto due to which (P.W.1) Jenita got jerk on her neck
and back. No tyre marks are seen at the place of incidence or no scratch is
shown to have caused to the vehicle of the accused. The alleged incidence
arose out of a sudden application of brakes by the auto rickshaw because of
the speed breaker ahead and as a prompt response the accused also applied the
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brakes as a reflex action to avoid any potential harm or collision.
Unfortunately, the accused was not having enough response time to avoid
minor impact on auto rickshaw and a mild push to (P.W.1) Jenita. The
informant and her friend admitted that they took photographs uploaded on
social media and encashed it. This shows intention of the informant and the
witness to falsely implicate the accused to encase celebrity status of the
accused.
17. It is a settled law that Section 279 IPC punishes the act of a
person driving or riding a vehicle on a public way in a manner so rash or
negligent as to endanger human life or to be likely to cause hurt or injury to
any other person. In the case of Abdul Sabha Vs. State (NCT of Delhi)
133(2006) DLT, 562, the Hon'ble High Court of Delhi while discussing about
the ingredients of Section 279 has observed: -
“ In Badri Prasad (Supra) the essential ingredients of
Section 279 IPC are that there must be rash and
negligent driving or riding on a public way and the act
must be such so as to endanger human life or be likely
to cause hurt or injury to any person. As observed in
Badri Prasad (supra), to establish the offence either
under Section 279 or Section 304A, the commission
of a rash and negligent act has to be proved”.
18. Further, what would constitute rash and negligent act has been
described by the Hon'ble Supreme Court in the matter of Mohd. Aynuddin @
Miyan Vs. State of Andra Pradesh decided on 28.07.2000, in the following
words: -
“A rash act is primarily an over hasty act. It is
opposed to a deliberate act. Still a rash act can be a
deliberate act in the sense that it was done without due
care and caution. Culpable rashness lies in running
the risk of doing an act with recklessness and with
indifference as to the consequences. Criminal
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negligence is the failure to exercise duty with
reasonable and proper care and precaution guarding
against injury to the public generally or to any
individual in particular. It is the imperative duty of the
driver of a vehicle to adopt such reasonable and proper
care and precaution”.
19. The evidence of (P.W.1) Jenita is clear that car of the accused
has dashed to the auto from behind. The evidence of P.W.2(Gaurav)that the
car was dashed to the auto from behind. The evidence of (P.W.2) Gaurav is
also clear that the car of the accused dashed to the auto rickshaw. As per
evidence of (P.W.1) Jenita there was damage to the auto rickshaw in which
they were travelling. If any person drives four wheelers, he has to look ahead
while driving to have a clear way to proceed ahead. The driver of the vehicle
certainly drives motor vehicle with care that there should not be any dash to
anything particularly to the vehicle and people on road. If any, sudden object
crossed or stopped in between ahead of the vehicle the driver either applies
brakes to avoid dash to that object. The accused, in the present case, was
driving his vehicle and dashed to the auto from back side. The driver of motor
vehicle if careless or negligent in driving the vehicle ahead would get dashed.
If the driver of the vehicle is diligent and careful he will avoid any kind of
dash to the vehicle proceeding ahead. As per arguments of the accused the
auto rickshaw suddenly applied brakes as there was speed breaker ahead and
the accused also applied breaks as reflex action to avoid potential harm. The
auto rickshaw and the vehicle of the accused both applied brakes and due to
sudden brakes by the auto accused has applied brakes. There should be tyre
marks on the road. The condition of the road is important to consider this
argument. If condition of road is not plane or with pits and rough, then
application of brakes by motor vehicle will not leave impression of tyre marks
on the road. The evidence is not on record to establish the condition of the
road. The accused cannot take shelter of not having tyre marks on the road of
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alleged incidence. The argument and defence of the accused is contradictory.
On the one hand the accused is taking shelter of absence of tyre marks on the
road and on the other hand taking defence of applying brakes to avoid
potential harm or collision
20. To have scratch on the vehicle involved in an accident depend
on various factors, nature of vehicle which gave dash and dashed to the
vehicle, safety guard applied to the vehicle at the place of dash. The evidence
of (P.W.1) Jenita and (P.W.2) Gaurav is direct evidence cannot be discarded on
the ground that no incidence has happened as there was no scratch found
during investigation.
21. The defence that the informant and her friend falsely implicated
the accused being social media predators encahsed celebrity status of the
accused cannot be said to be sufficient to discard the evidence of the
prosecution. The status of the accused and nature of work informant and the
witness are doing is not the criteria to discard their testimony. The Court has
to appreciate truthfulness of the evidence and credibility of the witness tested
on cross-examination and other evidence. The evidence of informant and
witness is in corroboration to each other that the vehicle of the accused dashed
to the auto from behind.
22. (P.W.2) Gaurav deposed that due to dash informant sustained
jerk The evidence about bodily injury stated by (P.W.1) Jenita is that due to
dash she got jerk on her back and neck. In cross-examination informant stated
that seat of auto rickshaw hit on the neck of (P.W.1) Jenita. As per evidence of
(P.W.3) Dr. Purva on examination of (P.W.1) Jenita no external injury was seen
but complaining about pain. Then the injured was referred for X-ray by
administering Diclofence. In cross-examination in an answer to a question
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(P.W.3) Dr. Purva stated that the injury was fresh. Then stated that the injury
might be prior to two to three days back. The admission is given by (P.W.3)
Dr. Purva that on the basis of the statement made by the informant she stated
that there was injury to her and there was no clinical finding of the said injury.
Whether any person has got bodily injury can be assessed by the medical
examination if such injury is visible. If the injury is not visible it cannot have
clinical finding being mental state. The definition of 'hurt' as provided under
Section 319 of I.P.C. specifies whoever causes bodily pain or disease to
another is said to cause hurt. The bodily pain is felt by the person and cannot
be seen. In moving vehicle if any person is travelling and sudden dash from
behind results in moving so human body travelling in a dashed vehicle
possibility of causing injury or hurt cannot be ruled out. The informant in her
evidence stated about pain in her neck and back. (P.W.3) Dr. Purva stated
about administering medicine. In cross-examination (P.W.3) Dr. Purva stated
that injury was fresh. All these evidence on record proves that (P.W.1) Jenita
got pain as stated by her. The bodily pain covers into causing hurt. The
evidence discussed above is sufficient, clear and conclusive to hold that hurt is
caused to (P.W.1) Jenita due to the dash given to the auto rickshaw by the
motor car driven by the accused. The argument that there was no bodily
injury or hurt to the injured is unacceptable.
23. In examination-in-chief (P.W.2) Gaurav Chug deposed that the
accused was under influence of alcohol. In cross-examination of (P.W.2)
Gaurav he stated that he may supposed to say that accused was drunk and
immediately to a question deposed that he was hundred percent sure that
accused was drunk. The evidence of (P.W.2) Gaurav is sufficient to explain
the drunken condition of the accused at the time of incidence and while
driving the motor vehicle on public road. The Medical Officer (P.W.3) Dr.
Purva Kudtarkar deposed that she examined the accused. On examination she
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found that the smell of alcohol was present, style of walking was unsteady,
pupils were dilated, speech was incoherent and as per clinical examination she
found that accused has consumed alcohol. (P.W.3) Dr. Purva deposed that
patient refused to give his blood sample for examination. The Medial Notes
issued by (P.W.3) Dr. Purva bears stamp that the accused refused to undergo
blood test for chemical analysis. In cross-examination (P.W.3) Dr. Purva
admitted that smell of alcohol and spirit is similar. Then denied the suggestion
that she felt smell of spirit and given finding that accused consumed alcohol.
In cross-examination (P.W.3) Dr. Purva further stated that accused refused to
take blood sample therefore existence of alcohol in his blood could not be
ascertained. The suggestion, thereafter, that false statement is made that the
accused refused to give blood sample is denied by (P.W.3) Dr. Purva. The
evidence of (P.W.2) Gaurav and (P.W.3) Dr. Purva is clear that the accused
was under the influence of alcohol. The medical notes (Exb.9) bears stamp
that the accused refused to give blood sample and urine sample for alcohol
analysis supports oral evidence that the accused was under influence of
alcohol.
24. Ld. Advocate of the accused argued that being celebrity was
never taken to Bhabha Hospital, medical examination was done in a crowded
police station in an unhygienic condition therefore the accused refused to give
blood sample or take Tetanus injection. No suggestion on the contrary
suggestion put to (P.W.3) that she is stating false that accused refused to give
blood sample and no suggestion was put to (P.W.3) Dr. Purva that the clinical
examination was done at police station and not in the hospital. (P.W.1) Jenita
has stated that she went to Bhabha Hospital, the argument is foreign to the
evidence and cannot be accepted.
25. Ld. Advocate for the accused argued that there is no clinical
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finding of consuming alcohol by the accused at the time of incidence.Ld.
Advocate for the accused relied on Bachubhai Hussainali Karyani Vs. State
of Maharashtra 1972 SCC (Cri) 178 held that it cannot be said to be
conclusively proved that a person has consumed alcohol, “unless” urine or
blood test was carried out, and mere smelling of alcohol, unsteady gait,
dilation of pupils, incoherence in speech are not enough to come to any such
conclusion. In the present case evidence is clear that the accused has refused
to undergo blood or urine test. This face distinguishes from the facts before
the Hon'ble Supreme Court. The ratio laid down in Bachubhai's case referred
above cannot be made applicable to the present case.
26. It is argued on behalf of the accused that FIR was registered on
23/09/2018 and charge-sheet is filed on 13/02/2019. First Information Report
is lodged on 23/09/2018. This delay in filing charge-sheet creates doubt of
credibility of the investigation, lack of evidence and false implication of the
accused. This argument cannot be accepted. If charge-sheet is filed at delay
cannot be considered as a circumstance to take doubt on the truthfulness of the
incidence and credibility of the witness. The accused's contention that the
cognizance is taken after the period of limitation prescribed under Section 468
of The Code of Criminal Procedure. The period of limitation to take
cognizance is provided under Section 468 of The Code of Criminal Procedure
(for short Code) is reproduced below--
468. Bar to taking cognizance after lapse of the period of limitation.
1) Except as otherwise provided elsewhere in this Code, no Court shall take
cognizance of an offence of the category specified in sub- section (2), after the
expiry of the period of limitation.
2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment for a term not exceeding
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one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding
one year but not exceeding three years.
27. The commencement of period of limitation is provided under
Section 469 of the Code. As per Section 469(1)(a) period of limitation for
taking cognizance commences on the date of the offence. In the present case
FIR was registered on 23/09/2018 and my Ld. Predecessor has taken
cognizance on 16/10/2019. The FIR was registered for the offence punishable
under Section 279, 337 of The Indian Penal Code and under Section 185 of the
Motor Vehicle Act. The maximum punishment provided under each offence
is six months. The period within which cognizance is to be taken is one year
from 23/09/2018. The period to take cognizance has been expired. As my Ld.
Predecessor has taken cognizance and the order of taking cognizance is not
challenged by the accused till today. The order of taking cognizance by this
court and order of issuance of process cannot be reviewed or call back.
Issuance of process in view of ratio laid down by the Hon'ble Supreme Court
in Adalat Prasad Vs. Roopal Jindal (2004) 7 SCC 388 held that the power to
recall process issued against the accused is not provided under the Code of
Criminal Procedure. The court issued process cannot recall it. The defence of
taking cognizance is barred by period of limitation will not be available to the
accused as the same cannot be set aside or reviewed
28. It is argued on behalf of the accused that evidence of prosecution
witness is inconsistent. The driver of the autorikshwa and independent witness
is not examined by the prosecution. The way the vehicle of the accused was
chased, the evidence of Medical Officer and Investigation Officer is full of
discrepancies and numerous omissions. The status of the accused is misused
to falsely implicate the accused. The traffic condition due to Ganesh visarjan
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Festival moving of vehicles and people was in slow speed proves that a minor
dash has been converted into serious offence. The evidence about drunken
condition to substantiate proof of offence under Section 185 of M.V. Act.
Breath analysis Report or blood test report is not produce on record. All these
circumstances create reasonable doubt to prove the guilt of the accused. In
support Ld. Advocate for the accused relied on The State of Maharashtra Vs.
Suresh Vitthal Mule, 2017 SCC Online Bom 3964. In this ruling the Hon'ble
Bombay High Court pleased to upheld the acquittal of the accused on the
ground of discrepancies and omissions in the evidence of prosecution
witnesses. In addition, the Hon'ble Bombay High Court held that to attract the
offence punishable under Section 185 of the M.V. Act the accused should be
subjected to breath analyzer test or any other test including laboratory to
ascertain percentage of alcohol in blood exceeding 30 mg. Per 100 ml.
29. As far as inconsistencies and omissions are concern the
inconsistencies and omissions should be material to discredit the evidence of
prosecution witness. The discrepancies and omissions if minor in nature
cannot take place of doubt in the truthful and credible version of the
prosecution witnesses. The way the car of the accused was followed or the
evidence of (P.W.3) Dr. Purva of not having clinical finding of hurt to the
(P.W.1) Jenita are the discrepancies and omissions are minor in categorical and
consistent evidence that vehicle driven by the accused was dashed to the Auto
rickshaw in which the (P.W.1) Jenita and (P.W.2) Gaurav were travelling. In
cross-examination itself the evidence of (P.W.3) Dr. Purva cannot be
overlooked that the injury was fresh and medicine was administered to the
(P.W.1) Jenita to relieve pain. The celebrity status of the accused and virility
of photographs of the accused by (P.W.2) Gaurav on social media is not the
ground to discard or discredit the evidence that the vehicle of the accused
dashed to the auto-rickshaw moving in front of his vehicle. Non-examination
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Judgment -- 17 -- C.C. No.3076/PS/2019
of auto driver or independent witness is not fatal in view of settled legal
position that evidence is to be qualified and not to be quantified. The accused
himself has stated in argument that he refused to undergo blood test or urine
test supported by evidence of (P.W.3) Dr. Purva raises presumption against the
accused that he was under influence of alcohol. The argument advanced by
the accused cannot be endorsed. The judgment in the case of Suresh Mule
referred above distinguishes fact in present case that accused refused to
undergo blood or urine test.
30. The evidence of (P.W.1) Jenita, (P.W.2) Gaurav proved that the
dash was given to the autorickshaw from behind in which they were
travelling. The evidence of (P.W.2) Gaurav and (P.W.3) Dr. Purva coupled
with Notes (Exh.9) clinical examination of the accused proved that the
accused was driving his car under influence of alcohol. The evidence of
(P.W.1) Jenita, (P.W.2) Gaurav and (P.W.3) Dr. Purva proved that the injured
Jenita got hurt due to the rash and negligent driving of the accused. The
ingredients of the offence with which the accused is facing trial are proved
beyond reasonable doubt. For these reasons the accused is held guilty for the
offence punishable under section 279, 337 of the IPC and under section 185
sub-section (a) of the MV Act. The accused is heard on the point of sentence.
31. Heard accused and his Ld. Advocate. The accused submitted
that there is no grievous injury or any kind of injury to the injured. He is
falsely implicated. Ld. Advocate for the accused submitted that the accused
be released on fine only without prejudice to his rights. Ld. A.P.P. submitted
that the accused is to be punished as per discretion of the Court. If, the
accused is released on fine only then the Court shall consider awarding the
compensation to the informant/injured.
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Judgment -- 18 -- C.C. No.3076/PS/2019
32. The offence punishable under Section 279 and 337 of the Indian
Penal Code provides punishment with imprisonment of six months or fine of
Rs.1,000/- or with both. The offence punishable under Section 185(a) of the
Motor Vehicle Act provides punishment for first offence with imprisonment of
six months or fine of Rs.10,000/-.
33. In awarding sentence to the accused the Hon'ble Supreme Court
in Alister Anthony Paraira Vs. State of Maharashtra 2012 Cr.L.J. 1160 held
that, Sentencing is an important task in the matters of crime. One of the prime
objectives of the criminal law is imposition of appropriate, adequate, just and
proportionate sentence commensurate with the nature and gravity of crime and
the manner in which the crime is done. There is no straitjacket formula for
sentencing an accused on proof of crime. The Courts have evolved certain
principles: twin objective of the sentencing policy is deterrence and
correction. What sentence would meet the ends of justice depends on the facts
and circumstances of each case and the Court must keep in mind the gravity of
the crime, motive for the crime, nature of the offence and all other attendant
circumstances. Likewise in Gopal Singh Vs. State of Uttarakhand, (2013) 7
SCC 545: in Para 18 the Hon'ble Supreme Court observed that, Just
punishment is the collective cry of the society. While the collective cry has to
be kept uppermost in the mind, simultaneously the principle of proportionality
between the crime and punishment cannot be totally brushed aside. The
principle of just punishment is the bedrock of sentencing in respect of criminal
offence.
34. In the present case it is proved that the accused is a well mature
and the respectable citizen of India having gained status of a public image.
The act of the accused driving a motor vehicle under the influence of alcohol
and causing hurt to any person is an act of an accused for which the benefit
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Judgment -- 19 -- C.C. No.3076/PS/2019
under the provision of The Probation of Offenders Act cannot be extended.
The nature of the offence and overall impact on the society in respect of the
offence committed by the accused is required to be dealt with sentence
according to law and not only on the imposition of the fine.
35. The imposition of sentence, the victim of the offence cannot be
overlooked. Nature of injury caused to the victim and the mental trauma in
which she has gone is entitled to a reasonable compensation. In the facts and
the circumstances and the nature of the injury an amount of compensation of
Rs.5,000/- to the informant is just and reasonable. In this background
following order is passed.
O R D E R
1) Accused Dilip Ghanshyam Tahilramani is convicted under
section 255(2) of The Code of Criminal Procedure 1973 for the offence
punishable under Section 279 of The Indian Penal Code 1860 and is sentenced
to suffer Simple Imprisonment of 02 (Two ) months and to pay fine of Rs.
500/-(Rupees Five Hundred only), in default of payment of fine the accused to
further suffer Simple Imprisonment for 07(Seven) days.
2) Accused Dilip Ghanshyam Tahilramani is convicted under
section 255(2) of The Code of Criminal Procedure 1973 for the offence
punishable under Section 337 of The Indian Penal Code 1860 and is sentenced
to suffer Simple Imprisonment of 02 (Two ) months and to pay fine of Rs.
500/-(Rupees Five Hundred only), in default of payment of fine the accused
to further suffer Simple Imprisonment for 07(Seven) days.
3) Accused Dilip Ghanshyam Tahilramani is convicted under
section 255(2) of The Code of Criminal Procedure 1973 for the offence
punishable under Section 185(a) of The Motor Vehicle Act,1988 and is
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Judgment -- 20 -- C.C. No.3076/PS/2019
sentenced to suffer Simple Imprisonment of 02 (Two ) months and to pay fine
of Rs. 7,000/-(Rupees Seven Thousand only), in default of payment of fine
the accused to further suffer Simple Imprisonment for 07(Seven) days.
4) Accused Dilip Ghanshyam Tahilramani to pay compensation
of Rs.5,000/- (Rs. Five Thousand only) to the injured/informant Jenita
Kashyap Gandhi out of the fine amount under Section 357(1) of The Code of
Criminal Procedure.
5) All the sentences shall run concurrent.
6) Accused to surrender his bail bonds.
Copy of the judgment be given to the accused free of cost forthwith.
(Dictated on computer and pronounced in open Court.)
Date:-17/10 /2023. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 17/10/2023
Dictated on : 17/10/2023
Typed on : 17/10/2023
Signed on : 17/10/2023
vnh
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