Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C. No.583/PW/2019
Judgment
Received on : 12 02 2019
Registered On : 12 02 2019
Decided on : 11 07 2023
Duration : D M Y
29 04 04
Exhibit : 37
IN THE COURT OF THE METROPOLITAN
MAGISTRATE,
63rd COURT, ANDHERI, MUMBAI.
(Judgment U/sec. 355 of Cr. P.C.)
(Presided over by R. D. Dange)
Delivered on : 11/07/2023
a) The Serial number of the
case
: 583/PW/2019.
(CNR No. MHMM19-002488-
2019)
b) The date of the
commission
of offence
: 03/11/2017
c) The name of the
complainant
if any
: State (D.N.Nagar Police-Station,
C.R.No.628/2017)
d) The name of the accused
person his parentage and
residence
: 1. Hemendra Prannath Jain
Age: 37 yrs, Occu.:- Nil
R/o. : Building No.47/G/108,
Manish Nagar Society, Char
Bunglow, Andheri, Mumbai.
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2. Dhiraj Sadhu Shetty
Age: 36 yrs, Occu.: Service
R/o. : Room No.401, Fourth
Floor, Avnish Apartment,
Jogeshwari, Mumbai-60.
3. Babu Shankar Bandela
Age: 31 yrs, Occu.: Service
R/o. : Gate No.3, Shivaji Nagar,
Madgaon, Malvan, Malad (W),
Mumbai.
e) The offence complained
of or proved
: Offence punishable under
Sections 326, 324, 504, 506 read
with 34 of I.P.C.
f) The plea of the accused
and his examination if any
: Accused pleaded not guilty.
g) Final order : Accused are acquitted.
h) The date of such order : 11/07/2023
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 prove that accused
in furtherance of their common
intention, voluntarily caused grievous
hurt by dangerous means i.e. wooden
stick and belt to the informant on his left
No
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shoulder and nose and thereby
committed an offence punishable u/s.326
read with 34 of IPC ?
2] Whether prosecution prove that accused
in furtherance of their common
intention, voluntarily caused hurt to the
informant by means i.e. wooden stick
and belt and thereby committed an
offence punishable u/s.324 read with 34
of IPC ?
No
3] Whether prosecution prove that accused
in furtherance of their common
intention, intentionally insulted
informant by hurling abuses and thereby
gave provocation to him intending and
knowing it to be likely that such
provocation will cause him to break the
public peace or commit any other
offence and thereby committed an
offence punishable u/s.504 read with 34
of IPC ?
No
4] Whether prosecution prove that accused
in furtherance of their common
intention, committed criminal
intimidation by threatening informant
and thereby committed an offence
punishable u/s.506 read with 34 of IPC ?
No
5] What order? Accused are
acquitted
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R E A S O N S
AS TO POINT NOs.1 AND 2:
2] Prosecution has examined in all four witnesses to
prove the guilt of accused. It has relied upon first report
(Exh.16), photographs and injury certificate (article-A), spot
panchnama (Exh.23), memorandum statement (Exh.24),
seizure panchnama (Exh.25), Wooden stick (article-B) belt
(article-C) and medical certificate issued by M.O. (Exh.29)
to support it’s case.
3] Point Nos.1 and 2 are interlinked to each other.
In order to avoid repetition of evidence and for the sake of
convenience, they are discussed together.
4] Following points are necessary to be proved by
the prosecution to held accused guilty for the offence under
Section 326 of IPC :
(i) Accused voluntarily caused grievous hurt to
someone.
(ii) He used dangerous weapons or means while
doing said act.
5] Following points are necessary to be proved by
the prosecution to held accused guilty for the offence under
Section 324 of IPC :
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(i) Accused voluntarily caused hurt to the
informant.
(ii) He used dangerous weapons or means while
doing said act.
6] Sudhir (P.W.1) is an informant and alleged
injured of the case. He has given evidence that incident
occurred on 03/11/2017 at 12.30 a.m. before Joyos Pizza
Shop at D.N. Nagar. He says that he had been to said shop
alongwith his friends by name Karan Lad and Jay Parekh.
They were smoking cigarette outside the shop. He says that
accused Nos.1 and 2 had sat in said shop. He was not
acquainted with accused previously. According to him,
accused No.2 came out and prevented him from smoking
cigarette by abusing him. He states that thereafter, accused
No.3 came there. He states that accused No.1 gave a blow of
belt on his eyes and accused No.2 gave blow of wooden stick
on his forearm. He says that accused No.3 also beat him with
stick. He sustained grievous hurt around the eyes. He then
went to D.N. Nagar police station from where he was
referred to Cooper hospital for treatment. He deposes that his
nose bone was broken and there was hole in his right eye. He
had also sustained mute injury on other parts of body. He
says that he is acquainted with Ashfaq and he gave him name
of accused persons. As per his evidence, Ashfaq was with
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accused persons from that day. He has identified first report
(Exh.16) lodged at police station. He could not identify the
weapon of offence before the Court. However, he had
identified the accused before the Court as assailant.
7] Kiran (P.W.2) is a friend of P.W.1. He has given
evidence on the line of P.W.1. According to him, P.W.1 and
his friend Jay Parekh were smoking cigarette outside Pizza
shop and accused Nos.2 and 3 having Pizza in the said shop.
He states that as accused were having problem due to
smoking, they asked his friend to stand at some distance. He
says that accused had drunk liquor. He states that accused
started to manhandle P.W.1. He deposes that there was a
beating between accused No.2 and P.W.1. He states that they
tried to pacify their wrangle, but accused gave threat to them
and they went away. As per his evidence, thereafter accused
came there in two auto rickshaw by taking some boys.
Accused No.1 was having wooden stick. He restrained
accused from proceeding further by holding the stick. He
says that remaining boys beat informant with hands and
stick. According to him, P.W.1 sustained bleeding and
grievous injury on mouth. He says that accused No.3 beat
P.W.3 with waist belt below eyes, so he sustained bleeding
injury there. According to him, thereafter accused went
away. He deposes that they took P.W.1 to Versova police
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station, but police referred them to D.N. police station.
According to him, they were referred to Cooper hospital for
treatment. He has identified weapon of offence i.e. waist belt
(article-B) and wooden stick (article-C) before the Court.
8] Soge (P.W.3) is an investigation officer of the
case. He has given evidence that he recorded first report
statement of informant. He carried out investigation of the
crime. According to him he prepared spot panchanama
(Exh.23) by visiting the spot of incident. He says that he
recorded supplementary statement of informant. According
to him, initially informant had mentioned name of one
Ashfaq Shah as assailant and after that in supplementary
statement he mentioned that Ashfaq Shah gave him name of
other accused. According to him, accused No.2 gave
memorandum statement to produce wooden stick and belt
used in the crime. He recorded memorandum statement
(Exh.24) before the panchas. He says that accused took them
to B.M.C. School at D. N. Nagar and asked to stop at one
open space. He deposes that thereafter, said accused
produced before them wooden stick (article-B) and belt
(article-C). He says that he seized said weapon vide seizure
panchanama (Exh.25) before panchas.
9] Dr. Shirale (P.W.4) is a medical officer attached
to Cooper hospital. He says that on 03/11/2017 at around
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02.30 a.m. informant came to his hospital and Dr. Danish
Jamal examined him. He states that Dr. Jamal found three
C.L.W. injuries on the person of said patient. Out of those
injuries one was below right eyebrow, second below right
jaw, and third on nose right side at the roof of nose. He says
that informant was given primary medical aid and was
advised for X-ray and advised to ENT surgery. He has
proved medical certificate (Exh.29) of the patient. He has
opined that injury found on person of patient can be caused
by belt and wooden stick (article-B and C) shown to him.
10] Heard A.P.P. He has submitted that prosecution
has brought sufficient and cogent material on record to
support it’s case. He has also submitted that evidence of
prosecution witnesses are cogent and reliable. They
corroborated testimony of one another. It was further
submitted by him that injured is not expected to concentrate
on the weapon used by the accused while assaulting him and
therefore, non identification of weapon of offence by P.W.1
is not fatal to the case of prosecution. It was next submitted
by him that injury caused to P.W.1 is proved by medical
evidence of P.W.4. He also submits that charge of Sections
326 and 324 read with 34 of IPC against accused is proved
by the prosecution beyond reasonable doubt through
evidence of P.W.1 to 4. He prays to convict accused.
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11] P.W.1 in his cross-examination admits that he
had lodged first report against Ashfaq Shah and other three
unknown persons. He also admits that he had narrated to the
doctor that ten to fifteen unknown persons beat him. He
concedes that smoke was entering in the shop from the place
where he was smoking the cigarette. He says that he had
narrated the police that Ashfaq Shah beat him on his hand
with wooden stick and on his eyes. He has acknowledged
that the shop is located at a rush place and the place of
incident was situated at a public place.
12] P.W.2 in his cross-examination says that there
was dark outside the pizza shop and the place of incident
was located at a rush place. He admits that the weapon of
offence like (article B and C) are easily available in the
market.
13] P.W.3 in his cross-examination has brought on
record omission in the statement of P.W.2 that accused had
drunk liquor, they brought boys in auto rickshaw, accused
No.1 was having wooden stick, he restrained him by hand,
the boys beat informant with hand and wooden stick,
informant sustained injury on his face, accused took out
waist belt and gave blow of it on the eye of informant and
informant sustained bleeding injury below eye. He admits
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that informant while lodging first report has mentioned name
of Ashfaq Shah, Pappu and their two friends as assailants. He
also acknowledges that informant while giving
supplementary statement stated that Ashfaq Shah told him,
the name of other accused. He admits that he did not record
statement of any independent witness. He also admits that
weapon like (article B and C) can be easily available in the
market. He has also admitted that he did not conduct T.I.
parade of accused before the informant.
14] P.W.4 in his cross-examination admits that
medical certificate (Exh.29) does not bear his signature and
he did not examine the informant.
15] Heard advocate for accused. He has submitted
that there is contradiction in the FIR and testimony of P.W.1
regarding the person who made assault on him. He has also
submitted that prosecution has not examined memorandum,
seizure and spot panch. He has next submitted that injury
certificate is not issued by P.W.4 and therefore, the certificate
cannot be considered. He has next submitted that prosecution
has failed to prove it's case against accused. He prays to
acquit the accused.
16] It appears from admission given by P.W.1 in his
cross-examination that initially he had lodged first report
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against Ashfaq Shaikh and other three unknown persons. It
reflect that he was acquainted with Ashfaq Shaikh since prior
to incident. According to his evidence, Ashfaq Shaikh gave
name of real assailant. He does not states that on the basis of
information given by Ashfaq, he gave supplementary
statement to the police correcting the name of assailant.
Evidence of this witness that accused No.1 beat him with
belt on his eyes, accused Nos.2 and 3 beat him with wooden
stick on his forearm does not get support from his recital in
first report (Exh.16). It does not appear that P.W.1 gave
description about three unknown accused in the first report.
Identification of accused in court is substantive evidence
whereas test identification has corroborative value. The
identification of person whose identity is relevant is
necessary under Section 9 of Indian Evidence Act, if the
person is unknown to the witness. Test identification parade
is not necessary in each incident. It is necessary when the
assailant are unknown to the victim. It transpires from the
evidence of P.W.1 that alleged incident took place at
midnight. Evidence of P.W.2 shows that there was dark at the
place of incident. It transpires from the evidence of P.W.1
that other three accused were unknown to him. Considering
the time of incident, lack of light at the place of incident and
evidence of P.W.1, test identification parade of accused
before P.W.1 was necessary to establish the identity of
assailant. It is a matter of record that no test identification
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parade of accused is conducted during investigation in this
case. Alleged incident is occurred in the year 2017 and
evidence of P.W.1 is recorded in the year 2022. There is no
reference of accused in the initial F.I.R. There is also no test
identification parade to corroborate evidence of P.W.1.
Considering the time gap between date of incident and
recording evidence of P.W.1 and above aspect, identification
of accused by P.W.1 as assailant does not appear to be
reliable.
17] There are many omissions in the evidence of
P.W.2 which are material one and goes to the root of the
case. As the evidence of P.W.2 is full of omissions, it does
not appear to be reliable and trustworthy.
18] Alleged incident is of midnight 03/11/2017. As
per evidence of P.W.3, accused No.2 had given
memorandum statement (Exh.24) on 06/11/2017. As per his
evidence, he seized weapon (article-B and C) at the instance
of said accused from one bush. P.W.1 has not identified said
weapon before the Court. Therefore, doubt casts on the
aspect of use of said weapon in the offence.
19] It reflects from witness summons report (Exh.20)
that the medical officer who examined P.W.1 and issued
injury certificate has shifted to Uttar Pradesh and is not
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working with Cooper Hospital. It appears that P.W.4 did not
personally examined P.W.1 nor issued medical certificate
(Exh.29). It transpires that he had no personal knowledge
about the so called injury suffered by P.W.1. He is not
author of injury certificate (Exh.29). Evidence of medical
officer who examined and issued the injury certificate was
necessary in the matter. Non examination of said witness is
fatal to the prosecution. Therefore, evidence of P.W.4
coupled with injury certificate (Ex.h.29) cannot be relied and
acted upon.
20] Evidence of P.W.1 to 4 does not inspire the
confidence about the commission of offence under Sections
326 and 324 read with 34 of IPC by accused persons. There
is no cogent and reliable evidence on record to show that
accused persons caused grievous or simple injury to P.W.1
by dangerous weapon or mean. I find that prosecution has
unsuccessful to prove the charge of Sections 326 and 324
read with 34 of IPC against accused. Therefore, I answer
point Nos.1 and 2 as “No”.
AS TO POINT NO.3 AND 4 :
21] P.W.1 states that accused No.2 abused him at the
time of incident. He does not state that accused persons gave
any kind of threat to him or his friend. He has not described
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the words uttered by the accused while abusing him. His
evidence is vague and absurd. As such his evidence on said
aspect is not reliable. In view of these discussions, I find
that there is no sufficient material produced on record by the
prosecution to prove the guilt of accused for the offence
punishable under Sections 504 and 506 read with 34 of IPC.
It has failed to prove the charge of said offences against
accused. As such, I find that prosecution has unsuccessful to
prove point Nos.3 and 4 against accused. Therefore, I
answer the same as “No”.
AS TO POINT NO.5 :
22] In view of finding recorded against point Nos.1
to 4, accused are entitled to acquittal. The muddemal i.e.
wooden stick and one old waist belt being worthless will
have to be destroyed after appeal period. In view of all these
discussions, I proceed to pass following order :
ORDER
A] Accused Nos.1 to 3 are acquitted as per section
248(1) of Code of Criminal Procedure of the offence
punishable under Sections 326, 324, 504 and 506 read
with 34 of I.P.C.
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B] Their bail bonds stand cancelled.
C] They are directed to furnish P.B. and S.B. of
Rs.7,500/- (Rupees Seven Thousand Five Hundred
Only) each as per Section 437-A of Cr. P.C.
D] Muddemal property i.e wooden stick and waist belt
be destroyed after appeal period is over.
(Judgment dictated and pronounced in the open court)
Date : 11/07/2023
Shri. R.D.Dange
Metropolitan Magistrate,
63rd Court, Andheri, Mumbai.
pkk
Dictated on : 11/07/2023
Transcribed on : 11/07/2023
Signed on : 17/07/2023
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