Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.2419/PW/2018
Exh.9
MHMM190093112018
Form No.XXXII
Part 'A'
(Para 44 (I) of Chapter VI of Criminal Manual)
J U D G M E N T
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44TH COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY SUJITKUMAR C. TAYDE)
(Date of Judgment: 14th February, 2024)
Case No.2419/PW/2018
CNR No.MHMM190093112018
FIR/Crime No.192/2018
Police Station: Versova, Mumbai.
COMPLAINANT The State of Maharashtra
through the Station Incharge of
Versova Police Station, Mumbai.
REPRESENTED BY Learned A.P.P. Smt. Seema Mokal
ACCUSED 1] Sushila Vijendra Got,
Age – 44 Yrs., Occ – Labour,
R/o. Siddharth Nagar Zopadpatti,
Char Bangala, Versova,
Andheri (W), Mumbai.
2] Sanjay Bandepal Kagada,
Age – 24 Yrs., Occ. Labour,
R/o. Ekvira Mata Nagar,
Siddharth Nagar Zopadpatti,
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 1 of 12 --
2 C.C.No.2419/PW/2018
Exh.9
Char Bangala, Versova,
Andheri (W), Mumbai.
3] Nirma @ Nilima Rajiv Gupta,
Age – 30 Yrs., Occu. Labour,
R/o. Siddharth Nagar Zopadpatti,
Char Bangala, Versova,
Andheri (W), Mumbai.
REPRESENTED BY Learned Advocate Shri D.D. Kerkar
Part 'B'
(Para 44(ii) off Chapter VI of Criminal Manual)
Date of offence 09/05/2018
Date of FIR 09/05/2018
Date of chargesheet 01/09/2018
Date of framing of charges 14/02/2020
Date of commencement of
evidence
13/07/2023
Date of which judgment is
reserved
14/02/2024
Date of the judgment 14/02/2024
Accused Details
Rank of
the
accused
Name of
Accused
Date of
Arrest
Date of
Release on
Bail
Offences
charged
with
Whether
acquitted or
convicted
Sentence
imposed
Period of
Detention
Undergone
during
Trial for
purpose of
Section
428 of
Cr.P.C.
1 Sushila
Vijendra
10/05/2
018
10/05/20
18
324, 323,
504 r/w.
Acquitted No No
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 2 of 12 --
3 C.C.No.2419/PW/2018
Exh.9
Got 34 of the
Indian
Penal
Code
2 Sanjay
Bandepal
Kagada
do do do do No No
3 Nirma @
Nilima
Rajiv
Gupta
do do do do No No
Part 'C'
LIST OF PROSECUTION/DEFENCE/COURT WITNESSES
A. Prosecution:
RANK NAME NATURE OF EVIDENCE (EYE
WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS,
OTHER WITNESS)
PW 1 Neelam Samsher
Chandaliya
Informant (Exh.No.05)
PW 2 Avinash Pandurang Jadhav Investigating Officer (Exh. No.08)
B. Defence witnesses, if any.
RANK NAME NATURE OF EVIDENCE (EYE
WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS,
OTHER WITNESS)
Nil Nil Nil
C. Court witnesses, if any.
RANK NAME NATURE OF EVIDENCE (EYE
WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 3 of 12 --
4 C.C.No.2419/PW/2018
Exh.9
WITNESS, PANCH WITNESS,
OTHER WITNESS)
Nil Nil Nil
LIST OF PROSECUTION EXHIBITS
Sr.
No.
Nature of Exhibit Exhibit No.
Nil FIR 06
Nil Printed FIR 07
JUDGMENT
(Delivered on 14/02/2024)
The accused No.1 to 3 stand prosecuted for having
committed the offence punishable under Sections 324, 323, 504 r/w. 34
of the Indian Penal Code.
The case of the prosecution in nutshell is as under :
2. On 09/05/2018, at about 12.30 hrs., the informant,
Neelam went to the house of the accused which is situated in Siddharth
Nagar Zopadpatti, Mhada, Versova, Andheri (W), Mumbai for asking
her the reason as to why the accused had beaten her daughters. At that
time when the informant was standing in front of the house of the
accused, the accused Sushila, Ganga and Nirma @ Nilima abused the
informant. The accused Nirma caught hold her heir. The accused
Sushila took a bit of finger of the informant's hand. Thus, the accused
persons voluntarily caused hurt to the informant and abused her.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 4 of 12 --
5 C.C.No.2419/PW/2018
Exh.9
Hence, the informant lodged the report against the accused person in
the police station Versova on 09/05/2018 at about 16.40 hrs., and
accordingly the offence was registered against the accused persons
punishable under section 324, 323, 504 r/w. 34 of the Indian Penal
Code vide Crime No.192/2018 in Police Station Versova. The
informant was referred to Cooper Hospital for medical treatment.
3. The further investigation of the said crime was handed over
to Mr. Avinash Jadhav, AssistantPoliceInspector who recorded the
statements of the witnesses. Having completed the investigation, the
chargesheet came to be filed under Section 173 of Cr. P.C. against the
accused persons for having committed the offence punishable under
Section 324, 323, 504 r/w. 34 of the Indian Penal Code.
4. Having secured the presence of the accused persons, all the
documents filed alongwith the chargesheet were supplied to the
accused under Section 207 of Cr. P.C.
5. The charge for the offence punishable under section 324,
323, 504 r/w. 34 of the Indian Penal Code was read over to the
accused No.1 to 3. They did not plead guilty. Hence, the trial was
conducted.
6. In the backdrop of the prosecution case and the evidence
placed on record, the following points are formulated for my
determination. I record my findings thereon in the light of the evidence
led by the prosecution as under:
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 5 of 12 --
6 C.C.No.2419/PW/2018
Exh.9
SR.NO. POINTS FINDINGS
1] Does the prosecution prove that on
09/05/2018 at about 12.30 a.m. at
Siddharth Nagar, Slum area, Char Bangala,
Andheri (W), Mumbai, all the accused in
furtherance of their common intention
voluntarily caused hurt to informant Smt.
Nilima Shamsher Chandaliya by means of
hands and accused no.1 by biting her finger,
which used as an instrument of offence is
likely to cause death and thereby committed
an offence punishable under section 324 of
Indian Penal Code?
Disproved
2] Does the prosecution prove that on the
same date, place and time, all the accused
in furtherance of their common intention
voluntarily caused hut to the informant and
thereby committed an offence punishable
under section 323 of Indian Penal Code?
Disproved
3] Does the prosecution prove that on the
same date, place and time, all the accused
in furtherance of their common intention
intentionally insulted the informant by
abusing her and thereby gave provocation
to her intending or knowing it to be likely
that such provocation will cause informant
to break public peace and thereby
committed an offence punishable under
section 504 of Indian Penal Code?
Disproved
4] What order ? The accused
No.1 to 3 are
acquitted as per
the final order.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 6 of 12 --
7 C.C.No.2419/PW/2018
Exh.9
REASONS
AS TO POINTS NO. 1 TO 3:
7. These points are interconnected with each other.
Therefore, they are taken up together for consideration and
determination.
8. In order to bring home the guilt of the accused for the
offence punishable under section 324 of Indian Penal Code, prosecution
has to prove the following ingredients
i] Accused voluntarily caused bodily pain, disease or infirmity to the
victim;
ii] Accused must commit and act with knowledge that there by he
was likely to caused hurt to the victim;
iii] It was caused by dangerous weapons or mean.
9. In order to bring home the guilt of the accused, the
prosecution has examined the informant Neelam Samsher Chandaliya
(P.W.No.1) and the investigating officer, Avinash Jadhav (P.W.No.2).
The case is pending since last about five years. In spite of having ample
opportunity, the prosecution did not examine another witnesses.
Hence, having regard to the pendency of the case and the status of the
accused persons, this case needs to be disposed of in the light of
evidence placed on record.
10. In view of the incriminating evidence placed on record, the
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 7 of 12 --
8 C.C.No.2419/PW/2018
Exh.9
statement of the accused persons under section 313 of the Code of
Criminal Procedure came to be recorded. It is the stand of the accused
that they have been falsely implicated due to enmity.
11. The informant, Neelam Samsher Chandaliya (P.W.1)
deposed that on 09/05/2018 she had been to the house of Ganga who
had beaten her younger daughter. The informant further deposed that
accused Sushila and Sanjay beat her. According to her evidence,
accused Sushila took bit of her hand and she caught hold of her hair.
She testified that the accused persons beat her daughter Mausami also
and they went to police station to lodged the report.
12. In fact, except the informant, the prosecution did not
examine any eye witness in this matter. The learned advocate for the
prosecution argued that sole testimony of the informant is sufficient to
book the accused persons for the offence punishable under section 324,
323, 504 r/w. 34 of Indian Penal Code. On the other hand, the learned
advocate for the accused persons, Shri D.D.Kerkar vehemently argued
that there was dispute between the accused persons and the informant
and therefore, the testimony of the informant cannot be relied upon in
the absence of corroboration.
13. It is settled that even testimony of a single witness can be
taken into consideration if it is reliable and cogent. But in the present
case on hand, while facing the crossexamination the informant has
specifically admitted that the quarrel used to take place between her
and the accused persons. Moreover, the investigating officer has also
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 8 of 12 --
9 C.C.No.2419/PW/2018
Exh.9
admitted in his crossexamination that there was dispute between the
accused persons and the informant. In such circumstances, in mu
opinion, unless and until the testimony of the informant is corroborated
by another eye witness, it will not be safe to rely on her testimony.
14. It is pertinent to note here that while facing the cross
examination the informant (P.W.No.1) deposed that accused Sushila
caught her hair and one Ganga abused her. However, this material part
of evidence is missing in the statement recorded by the police. The
learned advocate for the accused proved this contradiction by way of
examining the investigating officer. Thus, due to this contradiction and
omission which go to the root of the case, the testimony of the
informant becomes doubtful.
15. It is settled that whenever crime takes place, the
investigating officer is required to prepare the spot panchanama where
the crime occurs. But in the present case on hand the investigating
officer has not prepared the spot panchanama. In such circumstances,
the place of the incident cannot be ascertained. Thus, it appears that
the investigation carried out by the investigating officer (P.W.2) appears
to be faulty. In short, for want of proof of the spot panchanama, the
testimony of the informant and the investigating officer cannot be relied
upon.
16. It would not be out of place to mention here that though
the investigating officer admitted the fact that other persons were
residing near the spot of incident, yet he did not record the statement of
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 9 of 12 --
10 C.C.No.2419/PW/2018
Exh.9
any witness. Hence, in the absence of corroboration, the testimony of
the informant cannot be relied upon.
17. According to the evidence of the informant, she and her
daughter Mausami went to Cooper Hospital for medical treatment. But
the prosecution did not prove the medical certificate. Moreover, the
medical officer who might have treated the informant, has not been
examined in this matter. In short, for want of proof of medical
certificate, oral testimony of the informant cannot be taken into
consideration.
18. In the present the alleged incident took place on
09/05/2018 at about 12.30 hrs., but the FIR of the serious offence was
lodged after lapse of about four hours. In fact, the FIR shows that the
police station is situated within the distance of two kilometer from the
place of incident. However, the FIR was lodged at the belated stage
and the prosecution did not satisfactorily explain the delay in lodging
the FIR. In such circumstance, having regard to the prior enmity
between the accused and the informant, it can be inferred that the
accused persons might have been implicated after thought and thus, the
benefit of doubt goes in favour of the accused persons.
19. The sum and substance of the discussion is that the
testimony of the informant is not duly corroborated by any other
independent witness. The prosecution failed to file the spot
panchanama where the alleged incident is said to have been taken
place. The investigating officer did not record the statement of eye
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 10 of 12 --
11 C.C.No.2419/PW/2018
Exh.9
witnesses. The testimony of the informant is not corroborated by the
medical documents. There was enmity between the accused persons
and the informant prior to incident and there is delay in lodging the
FIR. Hence, considering all these facts, I have come to the conclusion
that this case is nothing but the upshot of prior enmity. Hence, it can be
held that the prosecution failed to prove the case beyond reasonable
doubt. Resultantly, I record my finding in negative for point No.1 to 3.
The logical corollary of my aforesaid findings leads me to
pass the following order:
ORDER
1 The accused No.1 Sushila Vijendra Got, accused No.2 Sanjay
Bandepal Kagada and accused No.3 Nirma @ Nilima Rajiv
Gupta are acquitted of the offence punishable under Section
324, 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 No.1 to 3 stand cancelled.
3 The accused no.1 to 3 are directed to execute P.R. Bond of
Rs.5,000/ (Rupees Five Thousand Only) each vide Section
437–A of the Code of Criminal Procedure to appear before the
higher Court as and when such Court issues notice in respect
of appeal are petition filed against this judgment.
4 The Judgment is transcribed directly on the computer.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 11 of 12 --
12 C.C.No.2419/PW/2018
Exh.9
5 The Judgment is pronounced in open Court.
Sd/
(Sujitkumar C. Tayde)
Date : 14/02/2024 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
spj
Typed On: 14/02/2024
Signed On: 14/02/2024
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
-- 12 of 12 --