Final Order 1

Order Details: Copy  of Judgment
Pdf Text: Judgment 1 C. C. No. 1138/PS/2018.
C/S filed on : 08/03/2018
Decided on : 27/03/2024
Duration : 06 Y 0 M 19 D
Exh. 12.
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
10TH COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY R. M. SHAIKH)
C. C. No. 1138/PS/2018 (C.R.No. 187/2017)
(C.N.R.No. MHMM19-003035-2018)
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. 1138/PS/2018.
(b) The date of the commission of
the offence.
: On 05/12/2017
(c) The name of the Informant. : The State (Jogeshwari Police
Station in C. R. No. 187/2017)
(Through Anita D’Souza)
(d) The name of the accused
person and their parentage
and residence;
: Salman Ajim Khan
Age : 25 years,
R/at:Premnagar,Jogeshwari (E),
Mumbai.
(e) The offence complained of : Under Section 279, 338 of the
Indian Penal Code r/w
134 (a)(b) of Motor Vehicles
Act.
(f) The plea of the accused and
their examination.
: Accused pleaded not guilty.
(g) The final order : Accused is acquitted.
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Judgment 2 C. C. No. 1138/PS/2018.
(h) The date of such order : 27/03/2024
(i) Brief statement of reasons : As recorded herein below.
Assistant Public Prosecutor : Shri. N.N. Sapkale.
Advocate for the accused : Shri. Sujay Namey
JUDGMENT
1. The accused is facing trial for the offences punishable
under Sections 279, 338 of the Indian Penal Code r/w.134 (a)(b) of
Motor Vehicles Act.
2. In order to prove the guilt of accused, prosecution has
examined in all three witnesses. The evidence of PW1 informant Anita
Julius D’Souza at Exh.4, PW2 Ashwin Mario Fernandis at Exh.7 and
PW3 IO API Prachiti Prabhakar Gadkari at Exh.9 came to be recorded.
The statement of accused u/Sec. 313 of Cr. P. C is recorded at Exh.11
wherein he took defence that, false case is filed against him. Heard, Ld.
APP for the State and Ld. Advocate for the accused. Perused the oral
and documentary evidence brought on record.
3. In this back ground PW1 informant informant Anita Julius
D’Souza deposed that, on 05/12/2017 at about 4.00 p.m. she was
waiting for auto-rickshaw near cycle and auto-rickshaw stand at
Jogeshwari Railway Station and she was showing her right hand in
order to stop auto-rickshaw. That time while she was looking towards
her right side, one auto-rickshaw came from reverse side and gave dash
to her due to which she fell down and sustained severe injury and she
became unconscious. Thereafter nearby people gathered on the spot
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Judgment 3 C. C. No. 1138/PS/2018.
and they took her to Kulkarni Hospital. She had not seen who was
driving auto rickshaw which gave dash to her because he ran away from
the spot. He had also not seen the vehicle number of auto-rickshaw
which gave dash to her. Thereafter, police came at Kulkarni Hospital
and they recorded her statement and lodged FIR which she proved at
Exh.5.
4. During her cross-examination conducted on behalf of
accused, it is brought on record that, she is not willing to proceed with
this case against the accused and she has filed pursis at Exh.6 to that
effect.
5. The next witness is examined by the prosecution PW2
Ashwin Mario Fernandis who deposed that, on 05/12/2017 he was
called by Jogeshwari Police station Road near Cycle Stand to act as a
panch for drawing panchnama and they went on the spot which was
shown by his wife Anne D’Souza. Accordingly, the panchnama was
drawn in the evening after 8.30 p.m. at Exh.8. During cross-
examination conducted on behalf of accused, it is brought on record
that, he has signed the panchnama in the police station.
6. The last witness is examined by the prosecution PW3 IO
API Prachiti Prabhakar Gadkari who deposed that, on 05/12/2017 she
registered crime vide C.R.No. 187/2017 on the basis of complaint
lodged by informant Anita D’Souza and she collected MLC from
Kulkarni Hospital, Jogeshwari. Thereafter, she carried investigation in
the matter wherein she went to Kulkarni Hospital and recorded
statement of informant at Exh.10. She went to the spot situated at
Barrister Paiknath Chowk, Jogeshwari(E), Mumbai and drew spot
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Judgment 4 C. C. No. 1138/PS/2018.
panchnama at Exh.8 and she also recorded supplementary statement of
informant on next day wherein informant has stated correct number of
auto-rickshaw of the accused who gave dash to her. Thereafter, she
recorded statement of two witnesses namely Anne Julius D’Souza and
Vinaya Vijay Surve, arrested the accused on 08/12/2017 and the RTO
inspection of vehicle of accused was also done. She also collected MLC
of informant from Kulkarni Hospital and after completion of
investigation, it was transpired that, the accused gave dash to informant
while driving his auto-rickshaw due to which informant sustained
fractured injury to her right hand and therefore she has filed
charge-sheet against the accused. During her cross-examination
conducted on behalf of accused, nothing fruitful has been brought on
record.
7. Now at this stage on perusal of entire evidence adduced by
the prosecution, it appears that, PW1 who is the injured informant, has
not identified the accused to be the person driving his auto-rickshaw on
public road in rash or negligent manner and gave dash to her. She is
unable to state the vehicle number of auto-rickshaw of accused also and
on the contrary she has filed pursis at Exh.6 wherein she contended
that, she is not willing to proceed with this case against the accused.
Apart from PW1 prosecution has not examined any other eye witnesses
present on the spot who had seen the accused driving his auto-rickshaw
in rash and negligent manner so as to caused hurt or endanger human
life and thereby gave dash to informant and caused grievous hurt to her.
8. Moreover, prosecution has not examined medical officer to
prove the injuries sustained by PW1. Further PW3 who is the
investigating officer has deposed formally about the investigation is
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Judgment 5 C. C. No. 1138/PS/2018.
carried out and even though there is mention of fractured injury to the
right hand of informant, however in absence of any medical evidence,
the testimony of PW3 is not helpful to the prosecution to prove the guilt
of accused for the offence p/u/s. 279, 338 of the Indian Penal Code r/w
134 (a)(b) of M.V. Act.
9. Therefore, considering all these facts, it appears that, the
evidence adduced by the prosecution is not sufficient to prove the guilt
of accused beyond all reasonable doubt. As such the accused is entitled
to be acquitted. In the result I proceed to pass following order:
ORDER
i Accused Salman Ajim Khan is acquitted of the
offences punishable under Sections 279, 338 of the
Indian Penal Code r/w Section 134(a)(b) of Motor
Vehicle Act vide Section 255 (1) of the Code of
Criminal Procedure.
ii Bail bonds of the accused stands cancelled.
iii The accused shall furnish bond of Rs.10,000/-
under section 437(A) of the Code of Criminal
Procedure.
Sd/-
(R. M. Shaikh)
Metropolitan Magistrate,
Date: 27/03/2024. 10th Court, Andheri, Mumbai.
Dictated on : 27/03/2024.
Transcribed on : 27/03/2024.
Signed on : 27/03/2024.: 19/10/2023
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