Final Order 1

Order Details: Copy  of Judgment
Pdf Text: Judgment 1 C. C. No. 505/PS/2019
C/S filed on : 22/01/2019
Registered on: 22/01/2019
Decided on : 02/01/2026
Duration : 06 Y 11 M 11 D
Exh. 27.
IN THE COURT OF THE JUDICIAL MAGISTRATE (F.C.)
10TH COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY S.G.AGRAWAL)
C. C. No. 505/PS/2019
(C.N.R.No. MHMM19-001193-2019)
J U D G M E N T
(u/Sec. 355 of Cr.P.C.)
(a) The serial number of the case. : C. C. No. 505/PS/2019
(b) The date of the commission of
the offence.
: On 26/05/2018
(c) The name of the Informant. : The State (D.N.Nagar Police
Station in C. R. No. 468/2018)
(d) The name of the accused
person and his parentage and
residence;
: Rizwana Khozema Nalwala,
Age : 49 Yrs,
R/o. A/11, Anand Apt.,
Santacruz, Mumbai.
(e) The offence complained of : Under Sections 279, 338 of the
Indian Penal Code.
(f) The plea of the accused and
his examination.
: Accused pleaded not guilty.
(g) The final order : Accused is convicted for the
offence p/u/s. 279, 338 of the
Indian Penal Code.
(h) The date of such order : 02/01/2026
(i) Brief statement of reasons : As recorded herein below.
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Judgment 2 C. C. No. 505/PS/2019
Assistant Public Prosecutor : Shri. Shaikh.
Advocate for the accused : Shri. P.A. Shetty.
JUDGMENT
(Delivered on 02/01/2026)
Accused is facing trial for the offence punishable under
Sections 279, 338 of the Indian Penal Code.
2. In order to prove the guilt of accused, prosecution has
examined in all six witnesses including the victim Vinod Dhanwani, the
traffic wardens present on the spot Umesh Salunkhe (PW2) and Ali
Ahmed Shaikh (PW3), panch witness to spot panchanama Abdul Shaikh
(PW4), the medical officer Dr. Prakash Doshi and the Investigating
Officer PSI Rahul Lad (PW6). The accused came with the defence of
total denial and false implication. According to her, she was present on
the spot with her vehicle i.e. car bearing No. MH-09-CL-3555 and she
saw the informant with injuries and took her to hospital for treatment
as responsible citizen.
3. In the present matter the Ld. APP for State has submitted
that there is evidence about rash and negligent driving and delay is
properly explained. He also submitted that Section 114 of Indian
Evidence Act requires the accused to prove the facts in her specific
knowledge considering the fact of her admission of being present on the
spot accompanied to injured in hospital. However, the accused has
failed to dislodge the truthfulness the FIR about her rash and negligent
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Judgment 3 C. C. No. 505/PS/2019
driving and therefore, she could be convicted. As against this the Ld.
Advocate for the accused has submitted that she has been implicated
only under suspicion as she helped the victim. The evidence of the
prosecution is inconsistent and rather there is negligent on the part of
victim. Thus, accused be acquitted for absence of strong evidence
against her.
4. Upon going through testimonies on record it is undisputed
fact that the informant Vinod Dhanwani was present on the spot as he
was returning home on his bike MH-02-EM-3519. It is also undisputed
that the accused was present there with her car bearing No. MH-09-CL-
3555 and was driving the same. It is also admitted fact that the accident
took place at a square. It is also admitted fact that the informant Vinod
Dhanwani was injured in road accident at that time.
5. The informant has stated that while he was waiting for
green signal below the D.N.Nagar Metro Station, the accused came at
high speed from behind, in the car driven by her and the wheel of the
car ran over his foot. He has also stated that suddenly, the accused took
the vehicle back and his left leg toe was dislocated and it fell at a
distance. Police came there and caught the vehicle driven by accused.
6. Umesh Salunkhe (PW2) and Ali Shaikh (PW5) have stated
that they were present at D.N.Nagar Metro Station as Traffic Wardens
and they have heard shouts. They saw that a motorcycle rider was
shouting loudly and knocking door of the car and he had injury at his
foot. They have also stated that the driver of the car shouted “ikxy
vkneh D;q fpYyk jgk gSA”, that time when accused was asked to take the
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Judgment 4 C. C. No. 505/PS/2019
car out from above the informant’s feet, she moved the steering of the
car but, the toe of the informant got separated.
7. The cross-examination of victim/informant has brought on
record some obvious circumstances like presence of the crowd. It was
suggested to him that he was trying to cross vehicles on the spot and
therefore he got injured at his left toe but, he refused to admit the
suggestion. He also refused to admit that the car of the accused reached
the signal before he reached there. He has stated that accused was
talking on mobile phone but, the said fact is not appearing in his FIR.
He has also stated that initially accused was agreed to compensate him
and therefore, he did not report the matter to police station but, the
said fact also not appearing in his FIR. He refused to admit that the
accused helped him to reach hospital out of courtesy and false report
was lodged to get compensation. However, he admitted that he received
compensation of Rs. 25,000/- in MACT claim.
8. Umesh Salunkhe (PW2) in his cross-examination has stated
obvious circumstances like presence of crowd and his attention towards
the traffic coming from Andheri side. He was cross-examined about the
informant’s position to the car of accused i.e. whether the informant
was at the right side or at the left side of the car. To that, he did not
comment initially but, later on said that the informant was standing
towards left side and four-wheeler was standing on the right side.
Further his statement that accused was talking on mobile phone has
come on record as an improvement. He has stated that he went to
Cooper Hospital with informant but, did not went to Nanavati Hospital
with him and disowned portion ‘A’ in his police statement which states
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Judgment 5 C. C. No. 505/PS/2019
that he took the victim to Nanavati Hospital. He admitted that he asked
the name of accused at Cooper Hospital.
9. Cross-examination of Ali Shaikh (PW5) also reflect that the
D.N.Nagar Metro Station has junction of three lane and it has heavy
traffic. He has admitted that due to the Metro pillars traffic from the
opposite side could not be seen. He has further stated that Salunkhe
(PW2) was 40-50 feet away from him. His statement about the
conversation of accused in words “ikxy vkneh D;q fpYyk jgk gSA” has
come as an improvement on record. Further his statement that he asked
the accused to take the vehicle away and as soon as accused moved
steering of vehicle informant’s toe was broken has also come on record
as an improvement.
10. The Investigating officer has given an account of his
investigation in his examination-in-chief and he stated that he has
moved the Court to add Section 134(b) of Motor Vehicle Act for not
giving the information of accident vide letter Exh.24. In his cross-
examination, he has admitted that there is delay of around 5 months in
lodging the report. He has also admitted that Salunkhe (PW2) or Ali
Shaikh (PW4) has not lodged any report with police station. He has
collected the injury report but, he was unable to comment on its
overwriting.
11. Dr. Prakash Doshi (PW3) attached to Nanavati Hospital has
stated that on 26/05/2018 he treated the informant who came with
history of road accident and had crushed feet injury with amputation of
distal part of great toe with disarticulation on second toe PIP joint with
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Judgment 6 C. C. No. 505/PS/2019
digloving injury of fore foot. Dr. Shirkant who was assisting him has
issued certificate of injury on 05/06/2018 and he also brought the case
papers about his admission to hospital. He has refused to admit that
there is overwriting in the date of injury certificate Exh.15. He was
unable to comment whether the patient was discharged on
26/05/2018. He stated that injury certificate Exh.15 was prepared by
Dr. Shrikant and the date of discharge of patient is not mentioned
therein.
12. The fact that accident occurred at the square of D.N.Nagar
Metro Station signal is undisputed. The spot panchanama has been
admitted into evidence through the testimony of investigating officer
and the panch witnesses to it has not supported the prosecution. As the
accident took place while the victim was waiting for green signal and
the accused came from behind, the spot panchanama is not of much
significance.
13. Whether the prosecution has been successful in proving the
guilt of accused has to be seen on the basis of evidence on record. As
such there is no material on record to show that either Umesh Salunkhe
(PW2) or Ali Shaikh (PW5) has any reason to depose false in the matter.
As stated above in this case, it is proved through the testimonies of
witnesses that the traffic warden Ali Shaikh (PW5) and Umesh
Salunkhe (PW2) were deputed at D.N.Nagar Metro Station signal and
they have gone to the location upon hearing shouts of the informant.
Therefore, the improvements/exaggerations in the testimonies does not
diminish the value of the testimony of the informant. Also, the
statement of Umesh Salunkhe (PW-2) about the right-left position of
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Judgment 7 C. C. No. 505/PS/2019
informant and the car of accused do not render the whole prosecution
evidence unbelievable. Correctness/incorrectness of statement of Umesh
Salunkhe (PW-2) as regards position of informant vis-avis the vehicle of
accused does not render his testimony as contradictory to informant.
14. So far as the defence as regards their failure in reporting
the accident to police station D.N.Nagar is concerned, it could not be
accepted as the injured was taken to Cooper Hospital first and then to
Nanavati Hospital. As the informant has stated that accused agreed to
compensate him and therefore, she did not report the matter could be a
valid reason for both Umesh Salunkhe (PW-2) and Ali Shaikh (PW-5)
from refraining to lodge the report. Also, the conduct of accused in
accompanying the victim to hospital is a reason to believe the
informant’s explanation for delay in lodging FIR. For the same reason,
despite letter of investigating officer to charge the accused under
section 134(b) of the Motor Vehicles Act, she was not charged to it.
15. The testimony of Dr. Doshi (PW-3) with injury certificate
issued by his assistant Exh.15 clearly shows grievous hurt was caused to
the victim. Now the only question remains about the evidence as to rash
and negligent driving. In this regard, I have closely scrutinized the
informant’s testimony. The facts stated by him clearly shows the rash or
negligent act on the part of accused while driving the car. As the
informant was resting at signal while waiting for turning it into green
colour, no contributory negligence can be attributed to him. He has
stated that accused came from his left side from behind and her car
vehicle ran over his feet and the vehicle came backwards by which his
left leg toe was dislocated and it fell at some distance. The driver of the
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Judgment 8 C. C. No. 505/PS/2019
vehicle on the road should drive it in the manner that the vehicle does
not touch another person’s body or vehicle. In this case the tyre of the
car of the accused ran over the feet of the informant while he was not in
motion. This itself shows the act of driving was rash. So also, it reflects
negligence to take proper precaution to prevent the mishappening as
accused ought to have kept safe distance from the vehicles and persons
moving or standing to her side while she was driving. Informant’s cross-
examination has not impeached the credibility of his testimony.
16. The defence of accused that she helped the informant out
of courtesy and is falsely implicated just to file a MACT claim does not
seem probable. The testimonies of Salunkhe (PW2) and Ali Shaikh
(PW5) shows that the injured was taken in an auto-rickshaw to the
hospital and not in the vehicle of accused. They have further stated that
the informant was knocking the window of the car of accused and was
shouting. This conduct itself shows that none other than the accused
before the Court was the offender. Therefore, I do not find any reason to
disbelieve the testimony of the informant. Consequently, I hold that the
prosecution has proved the guilt of accused in respect of the offence
p/u/s. 279, 338 of IPC. As such he is liable to be punished and I take a
pause here to hear the accused on the point of sentence.
17. Heard accused and Ld. Advocate for accused who prayed
for showing leniency as the accused is a woman with no criminal
antecedents and considering the age of the matter. He also prayed to
impart the benefit of the provisions of Probation of Offenders Act to the
accused. However, the Ld. APP for the State has submitted that the
manner of commission of offence and conduct of accused should be
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Judgment 9 C. C. No. 505/PS/2019
taken into consideration. He also prayed to compensate the victim who
is present before the Court.
18. Indeed, the offence p/u/s. 279 of IPC is punishable with
imprisonment which may extend to six months or fine which may
extend to Rs. 1,000/- rupees or both. So also, the offence p/u/s. 338 of
IPC is punishable with imprisonment which may extend to two years or
fine which may extend to Rs. 1,000/- rupees or both. The prayer to
release the accused on bond of good behaviour giving benefit of Section
3 of Probation of Offenders Act does not seems to be convincing me as
the offence committed by accused is against public at large. The injured
victim is also present before the Court. He lost his toe and has suffered
crust injury in the accident. Admittedly, he has been compensated with
compensation of Rs.25,000/- in MACT claim. I am convinced that
considering the fact that the accused has no criminal antecedents and is
a woman, sentencing her behind the bars would be little harsh.
Imposing the prescribed fine will also not be justiciable as it is not
sufficient amount to compensate the informant. The compensation
already received by the informant needs to be considered. Imputation
of toe cannot be ever adequately compensated in terms of money but,
through MACT proceedings an attempt is always made to give relief of
victims. Granting of compensation instead of imposing fine, shall ne to
taken as an assumption to believe that the compensation granted by the
MACT tribunal was inadequate. Said monetary compensation is granted
by the tribunal on the basis of the calculations and guidelines meant for
it. Thus, to meet the ends of justice in my opinion, imposing sentence
till the rising of the court with granting of compensation under section
353(3) of Cr.P.C. instead of imposing fine would be in the interest of
justice. Considering the compensation already received by the
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Judgment 10 C. C. No. 505/PS/2019
informant, in my opinion, the accused can be directed to pay
compensation of Rs.20,000/-. This compensation shall be in addition to
the compensation received by victim under MACT claim. Thus, I
proceed to pass following order :
ORDER
1. Accused Rizwana Khozema Nalwala is convicted for the
offence punishable under Section 279 of the Indian Penal Code vide
Section 255(2) of the Criminal Procedure Code and sentenced to suffer
imprisonment till rising of the Court and to pay compensation of
Rs.5,000/- (Rupees Five Thousand Only) to the victim Vinod Benjamin
Dhanwani within two months and in default the accused to suffer
simple imprisonment of 1 (One) month.
2. She is also convicted of the offence punishable under
Section 338 of the Indian Penal Code vide Section 255 (2) of the Code
of Criminal Procedure and sentenced to suffer imprisonment till rising
of the Court and to pay compensation of Rs.15,000/- (Rupees Fifteen
Thousands Only) to the victim Vinod Benjamin Dhanwani within two
months and in default the accused to suffer simple imprisonment of 1
(One) month.
3. Accused to surrender her bail bonds.
4. Copy of judgment be given to accused free of costs.
(S.G.Agrawal)
Judicial Magistrate (F.C.)
Date: 02/01/2026. 10th Court, Andheri, Mumbai.
Dictated on : 02/01/2026.
Transcribed on : 02/01/2026.
Signed on : 02/01/2026.
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