Final Order 1

Order Details: Copy  of Judgment
Pdf Text: – 1 – C.C.NO.952/PW/2018
Received on 02/04/2018
Registered on : 09/04/2018
Decided on : 19/05/2023
Duration : 05 Y. 01 M. 17 D.
Exh. : 12
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44th COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY A. I. SHAIKH)
(JUDGMENT U/SEC. 355 OF CODE OF CRIMINAL PROCEDURE)
(CNR NO.:MHMM190044002018)
(a) The serial No. of the case; : C.C.NO.952/PW/2018
(b) The date of commission of
the offence;
: 09/07/2017
(c) The name of the
complainant
(if any);
: The State (Versova Police Station
in C. R. No. 219/2017).
(d) The name of the accused
persons and their
parentage and residence;
: 1] Sameer Mohindarkumar
Barar,
Age 54 Yrs.
Occupation Business,
2] Uday Sameer Barar,
Age – 28 Yrs.
Occupation Service,
Both R/o. Ratankunj Bangala,
701 A, Saat Bangala,
Andheri (W), Mumbai.
(e) The offences complained of
or proved ;
: Under Sections 325, 323, 504
r/w. 34 of the Indian Penal Code.
-- 1 of 9 --
– 2 – C.C.NO.952/PW/2018
(f) The plea of the accused
and their examination (if
any);
: The accused pleaded not guilty
(g) The final order; : The accused are acquitted.
(h) The date of such order; : 19/05/2023
Ms. Seema Mokal, APP for the State.
Mr. M. K. Nayak, Advocate for the accused.
J U D G M E N T
(Delivered on 19/05/2023. )
1. The accused is prosecuted for the offence punishable under
Sections 325, 323, 504 r/w. 34 of the Indian Penal Code.
2. It is the case of the prosecution that, on 09/07/2017 at
about 13.00 hrs. both accused came in front of the house of informant.
Accused no.2 came in front of his mother. Accused were pushed his
father. Therefore, he alongwith his brother Vedant went there. They
saw there was verbal exchanged between his father and accused
persons and accused were pushed his father. Therefore, the informant
asked them why they pushed his father. Therefore, accused no.1
started to beat him by hand and kick. Accused no.1 caught hold him
with hand and accused no.2 beat him with fist and kick blows. Accused
no.2 gave blow on his cheek and also pulled her right hand. Therefore,
he sustained injury on his cheek and hand. He also gave kick on his
private part. He also assaulted his brother Vedant and abused him. Due
to injury they went to Patel Nursing Home for medical treatment.
Doctor told his right hand shoulder was dislocated. Hence, he lodged
-- 2 of 9 --
– 3 – C.C.NO.952/PW/2018
report against the accused persons.
3. On the basis of the report given by the informant, crime no.
219/2017 came to be registered against the accused persons. He
arrested the accused persons. During further investigation I.O. drawn
spot panchanama in presence of panch witnesses, recorded statement of
witnesses. After completion of investigation filed chargesheet.
4. The charge is framed against the accused persons for the
above mentioned offence. The accused pleaded not guilty and claimed
to be tried. The prosecution has examined total five witnesses in this
case. Statement of the accused under Section 313 of the Code of
Criminal Procedure is recorded. The defence of the accused is of total
denial.
5. The points for determination alongwith my findings
thereon as under :
POINTS FINDINGS
1] Does the prosecution prove that both
accused in furtherance of their common
intention, voluntarily caused grievous
hurt to the informant Dhruv Rahul
Barar i.e. dislocate his right hand
shoulder?
In the negative
2] Does the prosecution prove that both
accused in furtherance of their common
intention, voluntarily caused hurt to the
informant and witness?
In the negative
-- 3 of 9 --
– 4 – C.C.NO.952/PW/2018
3] Does the prosecution prove that both
accused in furtherance of their common
intention, intentionally insulted the
informant and witness by abusing
them?
In the negative
4] What order ? The accused are
acquitted.
R E A S O N S
AS TO POINTS NO. 1 TO 3 :
6. These points are interconnected with each other, therefore,
they are taken up together for consideration and determination.
7. Druv Rahul Barar, informant (P.W.1) deposes at Exh. 04
that he was residing with his family including father, mother, brother
and grand mother. In the year 2017 he was working with Hult Business
Consulting as Associate Director. There was security watchmen.
Accused are from the family of his great grand father's second wife.
Incident occurred on 09/07/2017 between 12.00 p.m. to 2.00 p.m.
Because of Sunday he was in his house at the relevant time. His mother
came to him and told him that both the accused are hitting to his father.
He came running and saw in the corridor, accused are pushing and
hitting of his father. He went to stop and told them to talk peacefully.
Both the accused twisted his hand. He could not defend himself. They
also started to abuse him and his father. Both the accused are hit him
and kick him. One of them had given him punch on his face, he might
be the accused Sameer. They told him they did not let him to leave
there. His mother and brother had taken him to Patel Nursing Home.
he sustained injury on his both the shoulders. Dr. Patel called the police
as he sustained grievous injuries. Thereafter, he went to the police
-- 4 of 9 --
– 5 – C.C.NO.952/PW/2018
station and then Cooper Hospital. He lodged report Exh.5.
8. During crossexamination he admitted that accused are
conducting pesticides work in the bungalow and his father resisted to
stop the said work. He denied that they resisted to their work and
when they are not stopped they are pushing and hitting them. He
further denied that he instigate the quarrel. He denied that accused are
assaulted on his private part, cheek and shoulder. He further denied
that he lodged false complaint against the accused because of enmity.
9. Rahul Kulpdeep Barar, (P.W.2) deposes at Exh.6 that Druv
Barar is his son. Accused are his great grand father's steps grand
children. In the house there are four families. He was residing at
ground floor. Accused are residing at different building Tower E on 7th
Floor. Incident occurred on 09/07/1917 at about 1.30 p.m. He was at
home along with his wife and children. HIs wife was going to kitchen.
She saw the accused Uday Barar who is coming to house and he
blocked and trying to stop his wife. He asked accused Uday why he had
entering into his house. He also saw that one person from window was
sitting in the room which was locked from 4 to 5 years. Thereafter, he
opened the door. He saw it was accused Sameer. Sameer Barar gave
him hurdle pushed therefore he fell down. His wife immediately
screamed and called the children. Both his son landed up. They asked
Sameer why he and his son assaulted to him. Thereafter, both the
accused also started beaten to his both sons. They are started hitting
and punching to his sons. His son Druv's both the shoulders are
hanging and dislocated. He also sustained injuries on his face and
head. He taken his son Druv to the Patel Nursing Home. Thereafter,
they went to police station. Druv has filed the FIR. Thereafter, police
-- 5 of 9 --
– 6 – C.C.NO.952/PW/2018
referred to his son Druv to Cooper hospital.
10. During his crossexamination he facing criminal case filed
by under Section 332 of IPC at Dindoshi Court as alleged that he had
asaulted to the police officer. He admitted that accused Sameer is one
of the witness in that case. He denied that he have grudged against the
accused family on the reason that they have share of two rooms in
bungalow. He further denied that he filed this false case against the
accused persons.
11. Shalu Rahul Barar, (P.W.3) deposes at Exh.7 that Rahul
Barar is her husband. She resided with her family including motherin
law, husband and two sons at Seven Bungalow. The incident occurred
on 09/07/2017 at about 1.00 p.m. in their bungalow. At that time she
was going to kitchen. She saw accused Uday Barar in the passage
adjacent to the kitchen. She also saw accused Sameer Barar. She
immediately informed to her husband. He is in hall. Her husband told
her that he will inquire why they are coming. When her husband asked
to them they started assault to her husband. She also informed to her
son Druv and Vedant that the accused have beaten to her husband. Her
son Druv asked to the accused why they are beaten to his father.
Accused Uday had forcefully pushed and punch to her son on his face.
Accused Uday had twisted his hand. He fell down. Even though
accused Sameer beaten to her son. Accused Uday also caught hold the
collar of Vedant. She immediately informed to the police who are
present in the van outside her house. Police came to her house and
they rescued her husband. The accused has left the place. Thereafter,
they went to hospital Patel for treatment of her son. They went to police
station and thereafter to the Cooper Hospital.
-- 6 of 9 --
– 7 – C.C.NO.952/PW/2018
12. During his crossexamination she admitted that there was
criminal case against her and her husband for assaulting the police. She
further admitted that accused Sameer is a witness in that case. She
denied that they have grudged against the accused on that reason. She
further denied that there was enmity between her family and family of
accused on the reason of property dispute. She also denied that they
have filed false case against the accused due to grudge.
13. Vedant Rahul Barar, (P.W.4) deposes at Exh.8 that at the
time of incident he, his mother and father were present in the house.
Her mother told that the accused Sameer and Uday came to their house
and they conducting the pesticides work in their illegal house. His
father went to asked them. His mother came to him and told the
accused were assaulted his father. Therefore, he and his brother went
there. His brother intervened the quarrel. Therefore, accused Sameer
caught hold his collar and accused Uday caught hold his hand and
started to beat him. Accused Uday also caught hold his collar and
assaulted him therefore, he fell down. Accused Sameer also gave hand
blow of the eye of his brother. Her mother called the police and police
reached to the spot of incident. His brother's hand was dislocated. They
took him to Cooper Hospital.
14. During his crossexamination he denied that there was old
dispute with accused. He further denied that to support his family he
had deposing false. He also denied that accused person never assaulted
him and his family.
15. Vijay Gangadhar Raskar, Investigating officer (P.W.5)
deposes at Exh.09 that on 09/07/2017 he was attached to Versova
-- 7 of 9 --
– 8 – C.C.NO.952/PW/2018
police station as a API. He was handed over this crime for investigation.
He had recorded the statement of witnesses and receive medical
certificate of injured from Cooper Hospital and from private hospital.
Thereafter, he filed chargesheet against the accused. During the
investigation he found accused had assaulted the injured and thereby
injured had sustained injury on hand i.e. dislocation of hand.
16. During his crossexamination he admitted that at the time
of registration of FIR there was no certificate of Cooper hospital. He
further admitted that medical certificate was issued by the private
hospital on 16/11/2017 after four months. He denied that he filed false
chargesheet against the accused
17. I have carefully gone through the record. The prosecution
has examined total five witnesses in this case. The prosecution failed to
produce any concrete evidence against the accused persons. The
evidence adduced by prosecution is not beyond doubt. There are
material contradiction and omission. So also there family dispute about
property. Hence, false case has been filed against accused persons can
not be ruled out. Hence, I hold that the prosecution failed to prove
guilt of the accused. Hence, I answer points no.1 to 3 in the negative.
AS TO POINT NO.4:
18. The prosecution failed to prove guilt of the accused persons
beyond reasonable doubt. Therefore, the accused are liable to be
acquitted. In the result, in answer to Point No.4, I pass the following
order.
-- 8 of 9 --
– 9 – C.C.NO.952/PW/2018
O R D E R
1 The accused No.1 Sameer Mohindarkumar Barar and accused
No.2 Uday Sameer Barar are hereby acquitted of the offence
punishable under Sections 325, 323, 504 r/w. 34 of the Indian
Penal Code vide Section 248 (1) of the Code of Criminal
Procedure.
2 Bail bonds of the accused stands cancelled.
3 The accused No.1 and 2 to execute P.R. Bond of Rs.15,000/
(Rupees Fifteen Thousand only) each vide Section 437–A of the
Code of Criminal Procedure for appearance before the higher
court, if said court issues notice to them for their appearance in
the matter in which present judgment is challenged, if any.
The Judgment is transcribed directly on the computer and
pronounced in open Court.
Mumbai ( A. I. Shaikh )
Metropolitan Magistrate,
Date:19/05/2023 44 th Court, Andheri, Mumbai.
spj
Typed on : 19/05/2023
Signed on : 19/05/2023
-- 9 of 9 --