Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C. No.176/PW/2019
Judgment
Received on : 11 01 2019
Registered On : 11 01 2019
Decided on : 21 12 2024
Duration : Y M D
05 11 10
Exhibit : 24
IN THE COURT OF
THE JUDICIAL MAGISTRATE, FIRST CLASS
63rd COURT, ANDHERI, MUMBAI.
(Judgment U/sec. 355 of Cr. P.C.)
(Presided over by R. D. Dange)
Delivered on : 21/12/2024
a) The Serial number of the
case
: 176/PW/2019
(CNR No.MHMM19-000998-2019)
b) The date of the commission
of offence
: 10/03/2018
c) The name of the
complainant if any
: State (D.N. Nagar Police-Station,
C.R.No.140/2018
d) The name of the accused
person his parentage and
residence
: Mehboob Anwar Shaikh
Age: 25 yrs, Occu.:
R/at : Dhangarwadi, near Makka
Masjid, Gilbert Hill Road, Andheri
(W), Mumbai
e) The offence complained of
or proved
: Offence punishable under Section
325 and 504 of I.P.C.
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f) The plea of the accused and
his examination if any
: Accused pleaded not guilty.
g) Final order : Accused is convicted u/s.323 of IPC
vide sec.222(2) of Cr.P.C.
h) The date of such order : 21/12/2024
1] Considering the prosecution case, following points
arise for my consideration and I record my findings thereon for
the reasons to follow :
Sr.
No.
POINTS FINDINGS
1] Whether prosecution proves that accused
voluntarily causing grievous hurt to the
informant and thereby committed an
offence punishable u/s.325 of I.P.C. ?
No
2] Whether prosecution prove that accused
insulted informant by hurling abuses and
thereby gave provocation intending and
knowing it to be likely that such
provocation will cause him to break
public peace or to commit any other
offence and thereby committed an
offence punishable u/s.504 of I.P.C.?
No
3] What order? Accused is
convicted
u/s.323 of IPC
vide sec.222(2)
of Cr.P.C.
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R E A S O N S
AS TO POINT NO.1 :
2] Prosecution has examined in all four witnesses to
prove the guilt of accused. It has relied upon first report
(Exh.14), Injury certificate of informant (Exh.19) and Arrest
Form of accused (Exh.22) to support it's case.
3] Following points are necessary to be proved by the
prosecution to held accused guilty for the offence under Sections
325 of I.P.C. :
(i) Accused caused grievous hurt to informant except
on grave and sudden provocation
4] Amjad (P.W.1) is an informant and alleged injured
of the case. He has given evidence that incident occurred near
one temple at Dhangarwadi, Andheri (W) at about 11.00 a.m.
He deposes that at that time he was proceeding for his duty. He
states that at that time he saw quarreling going on between his
wife and accused. He further states that there was marriage
invitation card given by his relative to the accused to hand it
over to him, but accused did not give it to him. He deposes that
so there was quarreling on said ground between his wife and
accused. He testifies that on inquiry made by him with his wife,
she told him that accused abused him on the name of her
mother and sister. He says that he intervened in the quarrel and
asked accused not to abuse his wife. He further says that at that
time accused gave fist blow on his forehead and lip. He became
unconscious due to assault made by accused. He states that his
wife tried to save him from accused, but he twisted her hand. He
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deposes that his wife took him to Cooper Hospital for treatment.
He lodged first report (Exh.13) after regaining consciences. He
has identified accused before the Court.
5] Mehraj (P.W.2) is an eye witness of the incident as
well as wife of informant. She has given evidence on the line of
P.W.1. He has deposed that at the time of incident, accused gave
her filthy abuses and twisted her hand. She has given further
evidence that she narrated incident to her husband. She deposes
that accused beat her husband on his head and face by fist and
caused him bleeding injury. She says that she took help of other
persons and shifted husband to Cooper Hospital for treatment.
She had identified accused before the Court. She says that police
had made inquiry with her about the incident.
6] Dr. Rajan (P.W.3) is Medical officer. He says that on
10/03/2018 he was on night duty as casualty officer at Cooper
Hospital. He has given evidence that at about 02.00 a.m. patient
by name Amjad Shaikh visited the department for medical
examination and treatment. He examined him and noticed
contusion lacerated wound on upper lip of the patient. He says
that size of the injury was 1x1 cm. He states that it was simple
and fresh injury. According to him, probable weapon was hand.
He testifies that he issued injury certificate (Exh.19) of the
patient. He further testifies that injury found on the person of
patient is possible by fist blow.
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7] Shri. Rokade (P.W.4) is an investigating officer of the
case. He has given evidence that he recorded first report
(Exh.13) of the informant i.e. P.W.1 on 10/03/2018 and
registered Crime No.140/2018 for the offence punishable under
Section 325 and 504 of I.P.C. He says that he carried out
investigation of crime. He collected injury certificate of P.W.1 and
filed the same on record. According to him, he had made inquiry
with P.W.2 but failed to attach her statement with the charge-
sheet. He says that there was ample evidence against accused, so
he charge-sheeted him.
8] Heard A.P.P. He has submitted that P.W.1 has given
evidence in the line of his first report. His evidence is
corroborated by evidence of P.W.2 to P.W.4. He submits that
evidence of P.W.1 to P.W.4 are consistent with each other. He
further submits that their evidence is trustworthy. He has
canvassed submission that prosecution has succeeded to prove
it's case against accused. He has prays to convict the accused.
9] P.W.1 in his cross-examination says that he had
narrated to the police that incident occurred at 11.00 a.m. He
further says that he had also narrated to the police that accused
abused his wife. He could not assign any reason as to why said
statements are not appearing in his first report. He states that
there were many shops surrounding the place of incident. He
denies suggestion that he fell down by slipping in a mud. He
also denies suggestion that he filed false complaint against
accused as he did not hand over marriage invitation card of his
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relative to him. He also denies suggestion that accused was not
present at the time of incident at the place of occurrence.
10] P.W.2 in her cross-examination says that she had
narrated to the police that incident occurred at 11.00 a.m. She
could not assign any reason as to why police did not record her
written statement. She further says that she had narrated to the
doctor that her hand was twisted in the incident however, she
was not treated by doctor in Cooper hospital. She deposes that
there are many houses near the place of incident. She states that
near about seven to eight people had gathered at the place of
incident. She says that they saw the incident. She denies
suggestion that she deposed falsely on the say of her husband.
11] P.W.3 in his cross-examination admits that injury
found on the person of P.W.1 can be caused by falling on a
surface while walking fast. He could not state the name of
person who was accompanying P.W.1 when he was brought for
medical examination and treatment in the hospital. He denies
suggestion that he did not examine P.W.1.
12] P.W.5 in his cross-examination says that he did not
find any independent witness so, he did not record their
statement. He denies suggestion that he did not visit place of
incident and made false investigation.
13] Heard advocate for accused. He has submitted that
no independent witness has been examined by the prosecution
to support it's case. He next submits that there are lots of
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improvement in the testimony of prosecution witnesses. He says
that informant has filed false case against accused. He submits
that I.O. has not given the reason for not recording statement
under Section 161 of Cr. P.C. of P.W.2. He has further contended
that prosecution has failed to prove the case against accused
beyond reasonable doubt. He prays to acquit the accused.
14] Evidence of P.W.1 that accused give fist blow on his
forehead and lip is corroborated by his recital in first report
(Exh.13). His evidence on said aspect also stands supported by
evidence of P.W.2. His version on the point of receiving injury by
him on a lip is substantiated by evidence of P.W.3. It appears
from evidence of P.W.3 that injury suffered by P.W.1 was simple
in nature. In order to attract Section 325 of I.P.C., it is required
to be proved that the victim suffered grievous injury. One of the
essential ingredient of Section 325 of I.P.C. is not established.
Therefore, accused cannot be convicted under Section 325 of
I.P.C. So I held that prosecution has failed to prove point No.1
against accused. As such, I answer it as “No”.
AS TO POINT NO.2 :
15] P.W.1 nowhere states that accused insulted him by
giving any kind of abuses. He says that abused his wife. P.W.2
states that accused abused her on the name of her mother.
There is no recital in the first report (Exh.13) to the effect that
accused abused wife of informant. Evidence of P.W.2 is vague
and absurd. None of the witness states the words used by
accused while abusing P.W.2. As such their evidence is not
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reliable and trustworthy. Therefore, I find that prosecution has
unsuccessful to prove offence under Section 504 of I.P.C. against
accused. As such, I answer point No.2 as “No”.
AS TO POINT NO.3 :
16] Testimony of P.W.1 on the point that accused caused
him hurt by fist blow on his lip is not shaken in his cross-
examination. F.I.R. can be used for the purpose of corroboration
or contradiction. In a first report (Exh.13) time of incident is
shown as 01.30 p.m. It is not mentioned in it that accused
abused wife of informant. Human memory has some limitation.
Stereo type of evidence is not expected from the witness. Some
omission and contradiction are bound to occur, if the witness is
deposing after some years of the incident. The contradiction in
the evidence of P.W.1 regarding time of incident and abusing
made by accused to his wife does not go to the root of the case
and discredit his version. Therefore, the contradiction are not
fatal to the case of prosecution.
17] There is no statement under Section 161 of Cr.P.C.
of P.W.2 recorded in the matter by the I.O. Prosecution has
called the witness by moving an application under Section 311
of Cr.P.C. P.W.2 has deposed that police had made inquiry with
her. P.W.4 also deposes that he had made inquiry with P.W.2, but
by mistake he failed to annex her statement with the charge-
sheet. The law neither mandates recording of statement of every
such person who is proposed to be examined as a prosecution
witnesses nor bars examination of any person as a witness,
whose statement has not been recorded under Section 161 of
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Cr.P.C. There is reference regarding presence of P.W.2 at the time
of incident in F.I.R. P.W.1 has also pointed out that P.W.2 was
present at the time of incident. So, it becomes clear that P.W.2 is
not a got up witness. She seems to be natural witness.
Therefore, non filing statement under Section 161 of Cr.P.C. of
P.W.2 on record by the prosecution is not fatal to it’s case.
18] P.W.2 has given evidence on the line of P.W.1. Her
evidence corroborates version of P.W.1 on the point that accused
caused hurt to him by fist. Though there is reference of presence
of some person at the time of incident, has come in her
evidence, non examination of them is not fatal to prosecution as
P.W.4 has deposed that he did not find any independent witness.
As per section 134 of the Evidence Act no particular number of
witnesses are required to prove any fact. It means the quality
that matter and not quantity of the witnesses. Conviction can be
based on the sole testimony of the witness, if it is found fully
reliable and trustworthy. Nothing is elucidated from the cross-
examination of P.W.4 which would give benefit of doubt to
accused.
19] Though prosecution has unsuccessful to prove that
accused caused grievous hurt to P.W.1 however, evidence of PW-
1 is cogent and reliable on the aspect of causing simple injury by
accused to him. His evidence is corroborated by evidence of
P.W.2. It is settled position of law that testimony of injured
witness stands on higher pedestal than testimony of any other
witness. His evidence on said aspect is corroborated by medical
evidence of P.W.3 and medical certificate (Exh.19). His evidence
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is not shattered in cross-examination on said point. I see no
reason to disbelieve testimony of P.W.1 on the aspect of causing
hurt to him by accused voluntarily. In order to convict accused
under Section 323 of I.P.C. prosecution has to prove that accused
voluntarily caused hurt to the victim. In present case,
prosecution has proved said offence against accused.
Therefore, I hold that prosecution has proved an offence u/s.323
of I.P.C. as per Section 222(2) of Cr. P.C. against accused.
Therefore, I hold him guilty for said offence and stop here my
judgment to hear him on the point of quantum of sentence.
Date : 21/12/2024
Shri. R.D. Dange
Judicial Magistrate, First Class
63rd Court, Andheri, Mumbai.
20] Accused does not submit anything. His advocate
submits that accused is sole breadwinner of his family. His
family depends only on him. He next submits that there are no
other pending cases against him. He also submits that there are
no previous allegations against accused and it is his first offence.
He prays to show leniency to the accused and release him.
21] Heard Ld.APP. He submits that offence committed is
against body. He submits that accused was having knowledge of
consequence of his act. He prayed to sentence accused to severe
punishment and compensation may be awarded to the
informant/ victim.
22] It is trite that nobody can claim the benefit of
section 3 and section 4 of the Probation Offenders Act as a
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matter of right and the court has to pass appropriate orders in
the facts and circumstances of each case having regard to the
nature of offence, it’s general effects on the society and the
character of the offender etc. There are no allegation of previous
conviction against accused. It appears that informant and
accused are resident of same locality. Punishment upto
imprisonment for one year or with fine extending to Rs.1,000/-
or with both is provided for offence punishable under Section
323 of I.P.C.
23] Considering nature of offence, punishment provided
for the same, character of the offendor, the circumstances in
which offence is committed and above discussion, accused is
entitled to benefit of Probation of Offender’s Act.
24] In view of all these discussions, I proceed to pass
following order :
ORDER
A] Accused is convicted as per section 222(2) of Code of
Criminal Procedure of the offence punishable u/s. 323 of
I.P.C. and is released u/s.3 of Probation of Offenders Act
on admonition that he shall not commit offence
hereinafter.
B] He is directed to deposit an amount of Rs.3,000/-
(Rupees Three Thousand Only) to be payable to the
informant as a compensation u/s.5 of Probation of
Offenders Act within a week. If he fails to pay the
compensation, it may be recovered as a fine.
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C] He is acquitted as per section 248(1) of Code of
Criminal Procedure of the offence punishable u/s. 325
and 504 of I.P.C.
D] He shall surrender his bail bonds.
E] Compensation amount if deposited by accused, same
be paid to the informant after appeal period is over.
F] Copy of order be given to the accused free of cost.
(Judgment dictated and pronounced in the open court)
Date : 21/12/2024
Shri. R.D.Dange
Judicial Magistrate, First Class
63rd Court, Andheri, Mumbai.
Dictated on : 21/12/2024
Transcribed on : 21/12/2024
Signed on : 21/12/2024
pkk
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