Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.1809/PS/2018
Filed on .. 22/06/2018
Registered on .. 22/06/2018
Delivered on .. 27/04/2022
Duration .. 03Y 10M 05D
CNR No.MHMM190064792018
Exh. 14
BEFORE 65th METROPOLITAN MAGISTRATE,
ANDHERI, MUMBAI.
(Presided over by C.P. Kashid)
(Judgment as per Sec. 355 of the Cr.P.C.)
1 The serial number of the
case
: C.C. No.1809/PS/2018
2 The date of commission of
offence
: On 31.03.2018 at about 12.30
p.m.
3 The name of the
informant, if any
: Through PSO Andheri Police
Station (CR.No.172/2018)
4 The name of the
accused,his parentage &
residence
: Rohan Chandrakant Rathod
Age : 27 years
Occupation : Interior
decoration
R/o. Room No.B4,
Jestaram Baug
Near Dadar TT circle,
Dadar East, Mumbai.
5 The offence complained of
or proved
: U/Sec.279, 338 of the Indian
Penal Code
6 The plea of the accused &
his examination, if any
: Accused pleaded not guilty
7 The final order : As per Final Order
8 The date of such order : 27/04/2022
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Appearance : Ld. APP. G. G. Khade for the State
Ld. Adv. D.V. Ballal for the accused
JUDGMENT
(Delivered on 27/04/2022)
1. Following points arise for my determination and I have
recorded findings thereon for the reasons discussed herein after :
SR.NO. POINTS FINDINGS
1 Does the prosecution prove that on
31.03.2018 at about 12.30 p.m., in
front of BIT chowky, N.S. Phadke Marg,
Andheri East, Mumbai, accused drove
motorcar bearing No. MH 12 JM 3147
on above public way in a manner so
rash or negligent as to endanger
human life or to be likely cause hurt or
injury to any other person ? Affirmative
2 Does the prosecution prove that on
above said date, time and place,
accused caused grievous hurt to
witness by driving above said vehicle so
rashly and negligently as to endanger
human life or personal safety of
others ? Affirmative
3 What order ? As per final
order
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R E A S O N S
As to point No 1 & 2 :
2. It is to be seen whether prosecution has proved the case
against the accused. The main ingredients of Sec.279 & 338 of IPC
are accused should drove motorcar on public way in a manner so
rash or negligent as to endanger human life or public safety of
others and caused grievous hurt. Therefore, I perused evidence
adduced by the prosecution. I gone through deposition of PW1
and PW2. It appears that both the witnesses have stated that the
incident took place on 31.03.2018 at about 12.30 p.m. when they
were going by Phadke road towards Star Bazar by walking. Both
the witnesses have deposed that when they reached at signal, at
that time signal was red and green for pedestrian and therefore
they were started walking from pedestrian road. PW1 has stated
that at that time one Swift car came and gave dash to them at their
right side of body and therefore both fall down and sustained
injury to their back and hip. PW2 more particular has stated that
at that time, one Maruti Suzuki Swift car of gray colour came from
front side, it was duty of driver of said car to stop or to slow his car
as there was red signal, but he could not stop his car and hit her
and her sister and they fall on the ground and thereby she
sustained injury on her hip and her sister sustained injury on her
back and thereby they sustained severe pain and they could not
stand.
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3. It appears that PW1 has deposed as per contents of FIR,
there is no any contradiction or omission or addition in her
deposition with regard to the contents of FIR. I perused the
contents of spot panchanama Exh. 12, which proves that there was
signal at Saiwadi junction on Western Express Highway and there
was zebra crossing on said road near signal. The sketch map
attached with spot panchanama shows that spot of incident is
exactly on zebra crossing (pedestrian) and the car involved in the
accident came from Saiwadi society near signal.
4. It shows that injury certificate of PW2 is admitted by the
accused. I perused injury certificate (Exh.14) of PW2 Aalu Marker,
which shows that she has sustained injury over the right hip, I.T.
fracture and it is grievous injury. The injury certificate also
contains history of injury which shows that injury over the right
hip due to hit by car.
5. I perused evidence of PW3 which also shows that it is
supported to the prosecution case as PW3 has recorded the FIR, he
prepared spot panchanama (Exh.12) at Saiwadi junction, he
attached sketch map of spot of incident, he collected injury
certificate, he arrested the accused, he collected information of
said vehicle from RTO and after completion of investigation, he
submitted chargesheet against the accused. During cross
examination, nothing came on record which will damage to the
prosecution case.
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6. During examination in chief of PW1, question was asked
to her that “Whether accused present in the Court was the driver
of said Swift car ?” and in reply to the question, she answered that
“I am not sure that said person was driver of Swift car because two
year are lapsed and I was under trauma at the time of incident”.
Considering to the above said statement of PW1, the Ld Advocate
for the accused vehemently argued that identification of accused is
not properly proved by the informant i.e. PW1 and therefore, it
proves that accused was not present at the time of incident and
therefore, he be entitled to be acquitted.
7. But after going through the whole deposition of PW1, it
transpires that it cannot be said that PW1 has failed to identify the
accused. Because she has given reason in her answer that because
of gap of two years and she was under trauma at the time of
incident she is not sure that accused was driver of Swift car at the
time of incident. Even during cross examination, she stated that I
am not sure and I do not remember that the accused was not
driving said car. She further denied that driver of car did not gave
dash to her. I perused the evidence of PW2 regarding
identification of accused which shows that PW2 has properly
identify the accused as she deposed that “the person who drive
said car namely Rohan (accused) is present before the Court. Even
she further deposed that “the driver of said car Rohan took her and
her sister in his car and went to Global Research Hospital,
Andheri”. Moreover, during cross examination, PW2 has denied
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the suggestion that accused was not driving said car at the time of
incident. Thus it shows that the prosecution has succeeded in
proving the identification of the accused and also proved that
accused was driving said car at the time of incident, therefore, I
have not accepted the argument advanced by the Ld Advocate for
the accused in respect of non proving of identification of accused
and presence of accused at the time of incident.
8. The Ld Advocate for the accused vehemently argued that
the prosecution has not examined any independent witness of the
incident and PW1 and PW2 are sisters of each other and therefore,
they are interested witnesses and therefore, their evidence cannot
be relied upon. But though PW1 and PW2 are sisters of each other,
they are eye witnesses of the incident and their evidence is so
natural, truthful and believable and which is corroborated with
each other and therefore, it cannot be said that those are
interested witness.
9. Thus evidence adduced by the prosecution and facts and
circumstances came before the Court proves that accused by
driving his car rashly and negligently gave dash to the informant
and witness and thereby PW2 sustained grievous injury. Thus the
prosecution has fulfilled all the necessary ingredients of Sec.279
and 338 of IPC. Thus prosecution has succeeded in proving the
case against the accused beyond reasonable doubt. Therefore I
answered point No.1 and 2 in the affirmative. Therefore accused
is liable to be punished. Therefore, I stopped here for hearing the
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accused on the quantum of sentence.
(C.P. Kashid)
Metropolitan Magistrate,
Date : 27.04.2022 65th Court, Andheri, Mumbai.
10. Heard the accused, Ld APP and Ld advocate for the
accused. The Ld advocate for the accused has submitted that the
accused is studying Architecture, it is his first offence. During his
life, except this incident, the accused has not committed any crime.
Therefore, he prayed to release the accused on bond of good
behaviour as per provision of Probation of Offenders Act. On the
contrary the Ld APP has submitted to grant maximum punishment
to the accused.
11. The entire record of case and rozanama shows that
accused continuously present in the Court of each date of hearing.
The accused has been held guilty for the offence which is not
punishable for death sentence or imprisonment for life. Previous
conviction of the accused has not been proved. Therefore, I wish to
give benefit of Probation of Offenders Act to the accused. In the
result in answer to point no. 3, I pass following order:
ORDER
1) Accused is convicted for the offences punishable under
U/Sec.279, 338 of the Indian Penal Code vide section 255(2) of
the Code of Criminal Procedure, 1973. Instead of sentencing him,
be released on his entering into a bond of Rs 10,000/ (Ten
thousand rupees only), to appear and to receive sentence when
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called upon during the period of one year from the date of
judgment and in the mean time to keep the peace and be of good
behavior as per section 4 (1) of the Probation of Offenders Act
1958.
2) The accused is directed to pay compensation of Rs.5,000/each
to the informant Pilu Pithawala, R/o. Building No.6, Room No.12,
Hari Govind Das Sanatorium Road, Andheri East, Mumbai and
injured namely Aalu Marker, R/o.Flat No.5, 1st Floor, Zorashtrian
colony, Taddeo road, Mumbai7 as per Sec.5 of Probation of
Offenders Act.
3) Accused to surrender to his previous bail bonds.
4) Copy of judgment be provided to the accused free of costs.
5) Dictated and declared in open Court.
Date : 27.04.2022 (C.P. Kashid)
Metropolitan Magistrate
Ask 65th Court, Andheri, Mumbai.
Dictated &
typed on : 27.04.2022
Signed on : 27.04.2022
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