Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.2701/PW/2018
Exh.08
MHMM190098562018
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS,
ANDHERI, MUMBAI.
(PRESIDED OVER BY SUJITKUMAR C. TAYDE)
(Date of Judgment: 3rd July, 2024)
Case No.2701/PW/2018
CNR No.MHMM190098562018
FIR/Crime No.382/2016
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 Mohsin Mubarak Sabri
Age – 23, Occ. Nil,
R/o. B/3, Aagakhan Baug,
Yari Road, Versova,
Andheri (W), Mumbai.
REPRESENTED BY Learned Advocate Shri Pradeep Shetty
Part 'B'
(Para 44(ii) off Chapter VI of Criminal Manual)
Date of offence 22/10/2016
Date of FIR 23/10/2016
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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Date of chargesheet 01/10/2018
Date of framing of charges 01/03/2021
Date of commencement of
evidence
24/01/2023
Date of which judgment is
reserved
03/07/2024
Date of the judgment 03/07/2024
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 Mohsin
Mubarak
Sabri
27/10/20
16
27/10/201
6
324, 323,
504 r/w. 34
of the
Indian
Penal Code
Acquitted 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 Informant – Zaid Taj
Mohd. Shaikh
Exh.No.04
PW 2 Investigating Officer – Atul
Somnath Sanap
Exh.No.06
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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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
WITNESS, PANCH WITNESS,
OTHER WITNESS)
Nil Nil Nil
LIST OF PROSECUTION EXHIBITS
Sr.
No.
Nature of Exhibit Exhibit No.
1 FIR 05
JUDGMENT
(Delivered on 03/07/2024)
The accused stands prosecuted for having committed the
offence punishable under Section 324, 323, 504 r/w. 34 of the Indian
Penal Code.
2. The wheel of the prosecution came into motion when the
informant, Zaid Tajmohammad Shaikh lodged the report against the
accused interalia alleging that on 22/10/2016, at about 21.00 hrs., he
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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and his friends namely Ahil, Isa, Masi and Maruf were playing football
on Yari Road, near Enlax Park Society, Versova. While playing the
game, the football passed to one Gilman and he kicked it. Therefore,
the informant asked said Gilman as to why he kicked that football.
Then said Gilman abused and beat the informant. Thereafter, the
accused came there and he also abused the informant. Then the accused
threw a stone towards the informant and caused injury to left shoulder
of the informant by means of that stone. The informant sustained
injury to his back. The informant got frightened and left the place of
incident. He narrated this incident to his mother. Thereafter, the
informant and his mother came to the Police Station Versova, Mumbai.
The police referred the informant to the Cooper Hospital for medical
examination. The informant and his mother went to said hospital. After
getting the relevant documents, the FIR was lodged against the accused
for the offence punishable under section 324, 323, 504 r/w. 34 of the
Indian Penal Code vide Crime No.382/2016 in the Police Station
Versova, Mumbai.
3. The further investigation was entrusted with PoliceSub
Inspector Shri Atul Sanap who recorded the statement of the informant.
The investigating officer prepared the spot panchanama. He seized the
weapon and carried out the panchanama thereof. Having completed the
investigation, the chargesheet came to be filed under Section 173 of Cr.
P.C. against the accused for having committed the offence punishable
under Section 324, 323, 504 r/w. 34 of the Indian Penal Code.
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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4. Having secured the presence of the accused, 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. He did not plead guilty and claimed to be tried.
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:
SR.NO. POINTS FINDINGS
1] Does the prosecution prove that on
22/10/2016 at about 21.00 hrs. on Yari
Road, near Enlax Park Society, Versova,
Andheri (W), Mumbai the accused in
furtherance of common intention with
juvenile delinquent voluntarily caused hurt
to the informant Zaid Tajmohammad
Shaikh by means of stones and thereby
committed an offence punishable under
Section 324 r/w. 34 of Indian Penal Code?
Disproved
2] Does the prosecution prove that on the
same date, place and time, the accused in
furtherance of common intention with
juvenile delinquent voluntarily caused hurt
to the informant and thereby committed
an offence punishable under Section 323
r/w. 34 of Indian Penal Code?
Disproved
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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3] Does the prosecution prove that on the
same date, place and time, the accused in
furtherance of common intention with
juvenile delinquent intentionally insulted
the informant by abusing him and thereby
gave provocation to him intending or
knowing it to be likely that such
provocation will cause him to break public
peace and thereby committed an offence
punishable under Section 504 r/w. 34 of
the Indian Penal Code?
Disproved
4] What order ? The accused is
acquitted as per
the final order.
REASONS
AS TO POINT 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, the
prosecution has examined the following witness:
Sr. No. Name of the witness Exhibit No.
PW 1 Informant – Zaid Taj Mohd. Shaikh Exh.No.4
PW 2 Investigating Officer – Atul
Somnath Sanap
Exh.No.6
9. In view of the incriminating evidence placed on record, the
statement of the accused under section 313 of the Code of Criminal
Procedure came to be recorded wherein the accused took the stand that
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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he has been falsely implicated in this matter. The accused neither
stepped into witness nor did he produce any evidence.
10. Having heard the learned advocates for both the sides, I
perused the record.
11. 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.
12. Since the accused is alleged to have intentionally insulted
the informant to provoke the breach of the peace, the following
essential ingredient of offence punishable under section 504 of Indian
Penal Code are required to be proved by the prosecution:
i] The accused intentionally insulted someone;
ii] He thereby intended to give him provocation;
iii] He knew that it was likely that such provocation would cause that
person to commit a breach of peace or to commit any other offence.
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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Keeping in mind the ingredient noted above, I proceed to
appreciate the evidence placed on record.
Evidence adduced by the prosecution witnesses
13. The informant, Zaid Tajmohammad Shaikh (P.W.No.1),
testified that on the date of incident, he was playing football with his
friends namely Ahil, Masi, Isa and Maruf and the accused was sitting
with his friend near the place of incident. As per the evidence of the
informant, when the football reached to Gilman, it was kicked back and
therefore, the informant asked said Gilman as to why he kicked it. The
informant further deposed on oath that said Gilman abused and pushed
him. In fact, the informant has stated on oath that he also pushed said
Gilman who started to assault him. The informant further testified that
the accused intervened into the quarrel and started to assault him.
According to evidence of the informant, the accused assaulted him with
stone and therefore, he sustained injury to his shoulder from back side.
The informant further testified that he narrated the incident to his
mother and they went to Cooper Hospital for medical treatment. The
informant acknowledged the fact of lodging FIR against the accused on
the day of incident.
14. In order to corroborate the testimony of the informant
(P.W.No.1), the prosecution examined Shri Atul Sanap (P.W. No.2),
who is investigating officer of this case. As per his evidence, the
informant and his mother had come to the police station and he
recorded FIR. He further deposed that he prepared the spot
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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panchanama and seized a stone which was used by the accused at the
time of committing the offence. He further testified that he arrested the
accused and filed the chargesheet after collecting the relevant
documents.
15. At the outset, it is pertinent to note here that the informant
mentioned the names of his friends who were playing football at the
time of incident with him. But the investigating officer did not record
statement of these persons who were the eye witness of the incident.
Moreover, the informant testified that he narrated the incident to his
mother and he went to police station alongwith his mother to lodge
report against the accused. As well as, as per the evidence of the
informant, his mother accompanied him to Cooper Hospital. But the
record shows that the investigating officer did not record the statement
of the mother of the informant. In short, though the names of the eye
witnesses are mentioned in the FIR and the statement of the informant,
yet the investigating officer did not record the statement of these
material witnesses. Thus, it appears that the entire case of the
prosecution is based upon the sole testimony of the informant.
16. As per the provision of Section 134 of the Indian
Evidence Act, no particular number of witnesses shall in any case be
required for proof of any fact. It is settled that the testimony of one
single witness, if wholly reliable, is sufficient to convict the accused. In
order to sustain a conviction under section 324 of Indian Penal Code,
the prosecution must prove that the accused voluntarily caused hurt
and such hurt was caused by means of an instrument referred to in this
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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section. Having regard to these settled principles, I turn to make the
scrutiny of the evidence of the informant (PW No.1).
17. The informant, Zaid Shaikh (PW No.1), categorically
deposed in his examinationinchief that he pushed Gilman who had
kicked the football. Thus, it appears that the informant himself
assaulted said Gilman. In such scenario, it can be inferred that the
informant has not come with clean hands. Apart from this, the
informant has testified that when the quarrel was going on between
him and said Gilman, the accused intervened the said quarrel. Thus,
from this piece of evidence, it can be inferred that the accused did not
voluntarily cause hurt to the informant as deposed by him and
therefore, it can be safely held that the prosecution has failed to prove
the first ingredient of section 324 of Indian Penal Code as noted above.
18. Having analyzed the evidence adduced by the informant, it
appears that there is no iota of evidence placed on record to show that
the accused intentionally insulted the informant and thereby committed
breach of peace. In short, the evidence placed on record falls short to
prove the offence punishable under section 504 of Indian Penal Code.
19. It is pertinent to note here that though the informant stated
on oath that the accused assaulted him with the stone, yet the said
stone was neither shown to the informant nor it was duly identified by
the prosecution witness. It would not be out of place to mention here
that the informant deposed that he sustained injury to his back. It is
needless to say here that the wound certificate or the opinion of medical
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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officer as to nature of an injury or how it can be caused, is relevant to
enable the Court to form its conclusion. But in the present case on
hand, the prosecution did not examine the medical officer who is said to
have medically examined the informant. In short, the medical
examination report filed on record is not proved by the prosecution and
therefore, it can be held that the testimony of the informant (P.W.No.1)
is not duly corroborated by the documentary evidence.
20. In fact, it is settled that the real onus is on the prosecution
to prove its case including the manner of occurrence beyond reasonable
doubts and the accused has only to raise a doubt in the mind of the
Court or to satisfy the Court that the defence version disclosed by the
accused was probable version of occurrence. In such scenario, it is
probable that the informant might have fallen on the ground during the
scuffle between him and said Gilman and thereby he might have
sustained injury.
21. In the present case on hand, the prosecution did not
examine any eye witness to corroborate the testimony of the informant
(P.W.No.1). Apart from this, the investigating officer has specifically
admitted in his crossexamination that though the FIR disclosed the
names of the witnesses who were present at the time of incident, yet he
did not record the statement of eye witness. In such scenario, in my
opinion, the testimony of the informant cannot be relied upon for want
of due corroboration.
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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22. It would not be out of place to mention here that the
investigating officer (P.W.No.2) deposed that he seized the stone which
is said to have been used by the accused at the time of committing the
offence. But the seizure panchanama of the said stone is not filed on
record. Moreover, the said stone was not shown to the informant
(P.W.No.1) during the course of his crossexamination. Thus, it appears
that the prosecution utterly failed to prove the seizure of the alleged
weapon i.e. the stone and therefore, in my opinion the evidence
adduced by the informant in this regard cannot be accepted. I am
fortified with my opinion in view of the ratio laid down by the Hon'ble
Bombay High Court in the case of Anil Kumare Vs State of
Maharashtra and Ors. (Cri. Revision No.61/2020 Nagpur Bench)
where in the Hon'ble Bombay High Court held as under
“No doubt even without a seizure, the conviction can be based
upon the testimony of eye witness if found credible as has been
indicated in Mrutunjoy Biswas Vs. Pranab @ Kuti Biswas and
anr., (2013) 12 SCC 796, however, in my considered opinion, the
same is not automatic, but the absence of seizure necessarily on
record is required to be explained away by a plausible reasoning
acceptable to the Court, otherwise it would create a situation that
in every case where the weapon is not seized, the same would
cease to be of any consequences and a conviction could be
recorded without seizure of the weapon used or for that matter
any explanation on record. In my considered opinion, this is not
what is contemplated by Mrutunjoy Biswas (supra), which merely
says that conviction can be based in case there is no recovery or
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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seizure, where clinching and direct evidence is acceptable. (Para
No.9)
23. The sum and substance of the aforesaid discussion is that
the prosecution has utterly failed to establish the material ingredients of
Section 324, 323, 504 r/w. 34 of Indian Penal Code beyond reasonable
doubt. Therefore, this Court is of humble opinion that the accused
might have been implicated in this matter on the ground that he had
supported said Gilman with whom the informant raised the dispute on
account of kicking the football. It is settled that if the two views are
possible, then the view favouring accused's innocence to be adopted. In
such scenario, I am of the opinion that the benefit of doubt goes in
favour of accused and therefore, he is entitled to be acquitted from the
alleged offence. Hence, 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 Mohasin Mubaraq Sabari is 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 The bail bond of the accused stands cancelled.
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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3 The seized muddemal property i.e. stone being worthless be
destroyed after the appeal period is over.
4 The accused is directed to execute Personal Bond of
Rs.5,000/ (Rupees Five Thousand Only) and furnish surety in
the like amount 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 or petition filed
against this judgment.
5 The Judgment is transcribed directly on the computer.
6 The Judgment is pronounced in open Court.
(Sujitkumar C. Tayde)
Date : 03/07/2024 Judicial Magistrate First Class,
Andheri, Mumbai.
Typed On: 03/07/2024
Signed On: 03/07/2024
spj
(Sujitkumar C. Tayde),
JMFC, Andheri, Mumbai.
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