Final Order 1

Order Details: Copy  of Judgment
Pdf Text: – 1 – C.C.NO1614/PS/2018
Received on : 18/05/2018
Registered on : 18/05/2018
Decided on : 12 /03/2021
Duration : 02 Y. 09 M. 24 D.
Exh. :
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.:MHMM190091902018
(a) The serial No. of the case; : C.C.No.1614/PS/2018
(b) The date of commission of
the offence;
: 13/10/2017
(c) The name of the complainant
(if any);
: The State (Varsova Police Station
in C. R. No. 369/2017)
(d) The name of the accused
person and his parentage and
residence;
: 1.Abhijit Vijay Mehta
Age 29 Yrs.
Occupation Nil
R/o. Indira Bhavan, Dwood
Baug, Municipal School,
Andheri(W), Mumbai
2. Ramzan Sultan Shaikh
Age – 40
Occupation Nil
R/o.R.No.91, Bharat Nagar,
Chaar Bunglow,Andheri(W),
Mumbai.
3. Sushil Raje Sawant
Age – 32 Years
Occupation – Nil
R/o.Bldg.No.02, A Wing, R. No.
..2/
-- 1 of 10 --
– 2 – C.C.NO1614/PS/2018
203, Kamgar Society, Navkiran
Marg, Chaar Bunglow,
Andheri(W), Mumbai.
4. Mahesh Ramprasad
Suryavanshi, Age 26 Yrs.
Occupation Nil
R/o.307, Bldg. No.2, Loknayak
Nagar, Andheri(W), Mumbai.
(e) The offence complained of
or proved ;
: Under Section 447, 323, 504,
506, 34 of the Indian Penal
Code.
(f) The plea of the accused and
his examination (if any);
: The accused No.1 to 4 pleaded
not guilty.
(g) The final order; : The accused No.1 to 4 are
acquitted.
(h) The date of such order; : 12/03/2021
Mr. Sanjay Gosavi, APP for the State.
Mr. Pradeep Shetty, Advocate for accused .
J U D G M E N T
( Delivered on 12/03/2021 )
1. The accused is prosecuted for the offences punishable
under Sections 447, 323, 504, 506, 34 of the Indian Penal Code.
2. In brief, it is the case of the prosecution that on
13/10/2017 at about 13.15 to 13.45 hrs. to 07.15 hrs. at the back side
gate compound of Jankidevi Public School, Old MHADA, Chaar
Bangala, Andheri(W), Mumbai the accused by threatening the
watchman of the school entered into the compound of the school.
Thereafter, they called the informant/driver of the school bus who was
..3/
-- 2 of 10 --
– 3 – C.C.NO1614/PS/2018
sat in the cabin and took him outside the gate and slapped him.
Accused also slapped the bus incharge. They abused the informant and
witness and also threatened the informant to see him. Hence, informant
lodged report of the incident against accused.
3. On the basis of the report given by the informant, crime
No. 369/2017 came to be registered against the accused. I.O. arrested
the accused. During further investigation I.O. recorded statement of
witnesses and after completion of investigation, I.O. filed chargesheet.
4. My learned predecessor framed charge against all the
accused for the above mentioned offences. The accused pleaded not
guilty and claimed to be tried. The prosecution has examined in all six
witnesses in this case. The statement of the accused under Section 313
of the Code of Criminal Procedure came to be recorded. The defence of
the accused is that of total denial.
5. The points for determination alongwith my findings
thereon as under :
POINTS FINDINGS
1. Does the prosecution prove that the all the
accused in furtherance of their common
intention committed criminal trespass by
entering into the compound of Jankidevi
Public School with intent to commit offence
of assault to the informant?
In the negative
2. Does the prosecution prove that all the
accused in furtherance of their common
intention voluntarily caused hurt to the
informant and witness by slapping them ?
In the negative
..4/
-- 3 of 10 --
– 4 – C.C.NO1614/PS/2018
3. Does the prosecution prove that all the
accused in furtherance of their common
intention intentionally insulted the
informant and witness by abusing them and
thereby gave provocation to them intending
or knowing it to be likely that such
provocation will cause them to break public
peace?
In the negative
4. Does the prosecution prove that all the
accused in furtherance of their common
intention committed criminal intimidation
by threatening to the informant and
witness?
In the negative
5. What order ? The accused No.1 to
4 are acquitted.
R E A S O N S
AS TO POINT NOS. 1 to 4 :
6. These points are interconnected with each other, therefore,
they are taken up together for consideration and determination.
7. Prosecution has examined in all six witnesses. P.W.No.1
Hanumant Mahadeo Koli, informant deposed that on the day of incident
he was driving the bus and when he was at the signal at that time he
started to drive the bus and his bus was touched the car and that car
was driven by the woman. The said woman started to scold him so he
requested to come to school. Thereafter, he further deposed that, that
lady followed the bus to the school. After he parked his bus that
woman also parked the car behind the bus so that bus could not go
away. Therefore, sat inside the gate of the school. Thereafter, three
persons came to the school. They took him out of the gate of the school
..5/
-- 4 of 10 --
– 5 – C.C.NO1614/PS/2018
and assaulted by the fist blows. When the accused Ramzan assaulted
him by slap remaining two other accused are also present at the spot.
When supervisor tried to pacify the accused, the accused Ramzan has
also assaulted him by slap. Thereafter, the accused went away. It was
school exams hence, he went to Police Station in the evening time and
lodged the report. He also identified his report Exh.08. Now whether
the prosecution proved the alleged incident was happened through the
other witnesses or by way of any other documentary evidence on
record. For that purpose we have to see the corroboration of other
witnesses to the testimony of P.W.No.1. Before that his cross
examination should be taken into consideration.
8. During his cross the P.W.No.1 has stated that he did not
file report about the accident of bus with car. He admitted that the
woman who was with car told him after the incident of accident that
she will make complaint to the school. He did not give written
intimation to the school about the accident. He further admitted that
there are residential houses around the area of the school and in the
school 50 to 60 employees are working. He did not undergone special
training of the driving of the school bus. He denied that the woman
had filed complaint against him in the school. He further admitted that
he did not state to police that four persons came and took him out of
the school. He further admitted that he did not know the accused and
their names therefore he did not state names of those three persons. He
also admitted that he has not stated to the police that accused Ramzan
slapped him but this fact is not mentioned in his report. He also
admitted that he stated to police that accused assaulted him by way of
kick and fist blows. He also admitted that Ramzan slapped to Baban is
..6/
-- 5 of 10 --
– 6 – C.C.NO1614/PS/2018
also not mentioned in his report and there was school exams and hence
he went to Police Station at evening time. This fact also missing in the
police report. He denied all the suggestions that accused never
assaulted him in the school.
9. To support the prosecution and the complainant, P.W.No.2
Sachin Jairam Munde was also bus conductor who is eye witness of the
incident has deposed that he alongwith P.W.No.1 were present at
school bus and at the signal of Jivan Nagar one car is at the right side
of the bus and slight dash was taken place to the car. The car driver
has come out and abused bus driver, P.W.No.1. They apologized her
and left towards the school. The two persons came to the school and
slapped to the driver of the bus. He did not identify the person who
slapped the P.W.No.1. He admitted that accused are not present at the
time of incident. He has deposed against the P.W.No.1 that accused
have not assaulted the complainant as they are not present at the spot
of incident.
10. P.W.No.3 Baban Vithoba Navale is also employee of
the school where the P.W.No.1 and 2 are employed. He deposed that at
the time of incident he was present at the school. Accused Abhijit Mehta
and his companions were come there and caught hold the driver i.e.
P.W.No.1 and they took him out of the compound of the school and
beaten him. Thereafter, they left the school. During the cross
examination he was suggested that he had not filed any document to
show that he was present at the spot of incident on his duty. He also
admitted that nobody will enter into the school compound without the
permission of the watchman. He had not known the person who
..7/
-- 6 of 10 --
– 7 – C.C.NO1614/PS/2018
entered the school. Even he has not given the details of the
identification of the person who entered into the school. He further
admitted that school is situated within the residential locality and at the
time when the alleged incident was shown at that time there was rush
at the school as first session of the school was completed and second
session was started.
11. P.W.No.4 Natwarlal Chimanlal Solanki is the pancha
witness who is also not supported to the prosecution case and stated in
his deposition that police have not seized any D.V.D. in his presence.
12. P.W.No.5 Raima Baburao Ramnoor who is bus conductor
and employee and colleague of P.W.No.1. She deposed that there was
dash between the bus and that car. The car driver has asked licence to
the driver of her bus and after some verbal exchange of words they left
the spot but the said car chased their bus and came to the school gate.
Four persons in the car caught hold P.W.No.1 and taken him out of the
school compound and beaten him. During the crossexamination she
admitted that she had not stated bus number to the police as well as car
number to the police. She further stated that after the incident she
went to Police Station for lodging FIR in the afternoon time. Again she
stated that she had not lodged report of the incident of the accident to
the police station. She further admitted that she has not seen those
persons prior to incident and even she has not stated their details and
names to the police. Even there is no identification parade carried out
by the police. She admitted that she has not stated to police that the
driver of the car is having companions of four persons and she had not
given any description of those four persons. Even she has not seen
..8/
-- 7 of 10 --
– 8 – C.C.NO1614/PS/2018
those four persons after the incident.
13. Prosecution examined P.W.No.6 Bharat Shivaji Demre who
is the Investigating Officer. He has deposed as per the version of the
P.W.No.1. He stated that investigation was transferred to another
Investigating Officer and after his transfer he has filed chargesheet in
the present case. During the crossexamination the advocate of the
accused has succeeded to bring on record omissions and contradictions
from the mouth of the Investigating Officer. He admitted that he has
conducted identification parade of the accused. Even the P.W.No.1 has
not stated about the happening of the incident of the accident to him.
He admitted that P.W.No.1 has not stated in his FIR that Ramzan had
slapped him and assaulted to witness Baban. The P.W.No.1 has not
stated in FIR about the incident. In the evening he came to the Police
Station. Even P.W.No.3 Baban has not given details of the person who
assaulted. Even he admitted that P.W.No.5 Raima has also not stated in
her police statement that car has followed school bus after the incident
and also not given the details of the persons who assaulted. He further
admitted that he had not found independent witness about the incident.
He again admitted that at the time of incident faculty of the school are
present in the school itself. He remains silent about Reena Mehta has
lodged report to the Police Station on 16th October 2017 about the
accident. He denied that he had filed false report against the brother
inlaw of Reena Mehta as per the recommendation of school trustee.
14. In the present case there are number of discrepancies in the
evidence of the prosecution witnesses. Even there are omissions and
contradictions which are material witnesses. P.W.No.1 has stated the
..9/
-- 8 of 10 --
– 9 – C.C.NO1614/PS/2018
name of the accused person Ramzan but he never knows his name as
accused Ramzan at the time of incident. Even he admitted that he
never met the accused person after the incident till the date of his
deposition. There is no any chance which can show that he identified
the accused while investigation is in progress. Even in this case there is
no identification parade is carried out. There is no record to show that
how the name of the accused persons are implicated in the present case
as accused. It is admitted position that there is four days delay for
filing FIR. Prosecution fails to explain the reason why the P.W.No.1
filed FIR after four days. It means the present FIR is filed after thought
and it cannot be ruled out that accused persons may be falsely
implicated in the present case. There is no any medical evidence or
documentary evidence, it is only on the oral evidence any person cannot
be planted as accused. From perusal of all the evidence on record,
prosecution failed to produce concocted or substantial evidence which
shows that accused persons have assaulted or committed the alleged
offence. In absence of the material and concocted evidence, I am of the
view that there is discrepancy in the evidence of the prosecution
witnesses and benefit of doubt should be given to the accused in the
present case. The prosecution failed to adduce any independent
evidence to prove its case. Hence, I hold that the prosecution failed to
prove guilt of the accused. Hence, I answer point No.1 to 4 in the
negative.
AS TO POINT NO.5 :
15. The prosecution failed to prove guilt of accused. Therefore,
the accused are liable to be acquitted. In the result, in answer to Point
No.5, I pass the following order.
..10/
-- 9 of 10 --
– 10 – C.C.NO1614/PS/2018
O R D E R
1 The accused No.1 Abhijit Vijay Mehta, accused No.2 Ramzan
Sultan Shaikh, accused No.3 Sushil Raje Sawant and
accused No.4 Mahesh Ramprasad Suryavanshi are acquitted
of the offence punishable under Section 447, 323, 504, 506
r.w.34 of the Indian Penal Code vide Section 248 (1) of the
Code of Criminal Procedure.
2 Bail bonds of the accused No.1 to 4 stands cancelled and they
be set at liberty.
3 The accused No.1 to 4 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 him for his
appearance in the matter in which present judgment is
challenged, if any.
4. Seized muddemal property i.e. iron rod being worthless be
destroyed after the appeal period is over.
The Judgment is transcribed directly on the computer and
pronounced in open Court.
Mumbai ( A. I. Shaikh )
Metropolitan Magistrate,
Date:12/03/2021 44 th Court, Andheri, Mumbai.
vnh
Dictated on: 15/03/2021
Typed on : 16/03/2021
Signed on :16/03/2021
../
-- 10 of 10 --