Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.2381/PW/2018
Received on : 29/08/2018
Registered on : 04/10/2018
Decided on : 19/05/2023
Duration : 04 Y. 08 M. 20 D.
Exh. : 15
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)
C.N.R NO.MHMM190099902018
(a) The serial No. of the case; : C.C.No.2381/PW/2018
(b) The date of commission of
the offence;
: 02/03/2018
(c) The name of the
complainant
(if any);
: The State (Versova Police
Station in C. R. No. 94/2018).
(d) The name of the accused
person and his parentage
and residence;
: 1] Rain Olyshish Disa,
Age – 27 Yrs.
Occupation – Nil,
R/o. Room No.31,
Yogsingh Society,
Firozshah Mehta Road,
Vileparle (W),
Mumbai.
2] Bhumesh Baboo Chapiyala,
Age – 32 Yrs.
Occupation – Nil,
R/o. Room No.38,
Patra Chawl, Lion Nagar,
Vile Parle (W),
Mumbai.
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3] Joshua Rio Sura,
Age – 23 Yrs.
Occupation – Ni,
R/o. Room No.189, A,
Semraj Road,
Vile Parle (W),
Mumbai.
4] Bhavik Ravindra Solanki,
Age – 30 Yrs.
Occupation – Nil,
R/o. Room No.602,
Godgift, Near Nanavati
Hospital, Vile Parle (W),
Mumbai.
5] Keano Ricky D'Souza,
Age – 28 Yrs.
Occupation – Nil,
R/o. Room No.208,
Maggie Inktar Villa,
Sarojini Road,
Vile Parle (W),
Mumbai.
6] Darshan Laxman Sakat,
Age – 35 Yrs.
Occupation – Nil,
R/o. Room No.304,
Godgift Tower,
S.R. Society, Nanavati
Hospital, Vile Parle (W),
Mumbai.
(e) The offence complained of
or proved ;
: Under Sections 141, 143, 147,
148, 323, 504, 506 (2) r/w.
149 of the Indian Penal Code
read with 37 of Maharashtra
Police Act.
(f) The plea of the accused and
his examination (if any);
: The accused are pleaded not
guilty.
(g) The final order; : All accused are acquitted.
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(h) The date of such order; : 19/05/2023
Ms.seema Mokal, Ld. APP for the State.
Mr.M. R. Rangnekar, Advocate for accused.
J U D G M E N T
( Delivered on 19/05/2023.)
1. The accused are prosecuted for the offences punishable
under Sections 141, 143, 147, 148, 323, 504, 506 (2) r/w. 149 of the
Indian Penal Code read with 37 of Maharashtra Police Act.
2. It is the case of the prosecution is that on 01/03/2018
informant there was birth day of informant's friend Natasha therefore
she went along with his friend Rakesh Karkera near D Mart, Versova,
Andheri (W), Mumbai at about 11.30 p.m. After finishing birthday
party at about 4.00 she went alongwith her friend from rickshaw to her
house. At that time two unknown persons came from motor cycle and
thrown water balloon on her mouth and went away. Informant and her
friend followed and caught them motorcyclist and asked them why they
are throw the balloon. 4 unknown persons also came there on
motorcyclist and scuffled was going on between them. They all
unknown persons beaten her friend the friend of informant Roshan
Karkera by hand and fist blow and threatened to kill him. In that
scuffle the pendents from golden chain of Roshan had misplaced.
Informant dialed 100 number and called the police. Police reached to
the spot and arrested the accused. Thereafter, she lodged report against
the accused persons.
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3. On the basis of the report given by the informant, crime
No. 94/2018 came to be registered against the accused persons. I.O.
arrested the accused. During further investigation I.O. prepared spot
panchanama, recorded statement of witnesses and after completion of
investigation filed chargesheet.
4. My learned predecessor framed charge against the accused
persons for the above mentioned offences. The accused are pleaded not
guilty and claimed to be tried. The prosecution has examined total four
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 accused
no.1 to 6 were the members of an
unlawful assembly, and, in prosecution of
the common object of such assembly, viz
to cause hurt or threaten or insult the
informant and her friend?
In the negative
2] Does the prosecution prove that accused
no.1 to 6 were the members of an
unlawful assembly that in prosecution of
their common object to caused hurt to
informant's friend Mr.Roshan by fist and
kick blows on his eye which offence you
In the negative
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knew to be likely to be committed in
prosecution of the common object of the
said assembly, and they, being a member
of such assembly at the time of
committing of that offence?
3] Does the prosecution prove that accused
no.1 to 6 were the members of an
unlawful assembly that in prosecution of
their common object to intentionally
insulted informant Poonam Khichi and her
friend and thereby gave provocation to
them intending or knowing it to be likely
that such provocation will cause them to
break public peace, which offence they
knew to be likely to be committed in
prosecution of the common object of the
said assembly, and they, being a member
of such assembly at the time of
committing of that offence?
In the negative
4] Does the prosecution prove that accused
no.1 to 6 were the members of an
unlawful assembly that in prosecution of
their common object to committed
criminal intimidation by threatening the
informant and her friend to kill, which
offence they knew to be likely to be
committed in prosecution of the common
object of the said assembly, and they,
being a member of such assembly at the
In the negative
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time of committing of that offence?
5] Does the prosecution prove that accused
no.1 to 6 disobeys an order lawfully made
or abets the disobedience thereof?
In the negative
6] What order ? All accused are
acquitted.
REASONS
AS TO POINTS NO. 1 TO 5:
6. These points are interconnected with each other, therefore,
they are taken up together for consideration and determination.
7. Kaluram Laxman Lohot, (P.W.1) deposes at Exh.3 that
police had taken his signature when they went to Lokhandwala. Police
had not prepared panchanama in his presence.
8. Poonam Devisingh Khinchi, Informant (P.W.2) deposes at
Exh.3A that she know all the accused. She was attending the birthday
party of Natasha's house. After finishing the party she returned to her
house via rickshaw. Someone thrown balloon on her face. She saw 3 to
4 motor cycles. Her rickshaw had followed them. She also called to the
police. She stopped rickshaw in front of motor cyclist. Along with her
her friend Roshan, now he was her husband was present. All motor
cyclist are coming there. They all attacked to Roshan and hited him.
They also hitted to rickshaw driver. One of them also snatched the
chain of Roshan. One of them has taken the big stone and trying to hit
to the Roshan's head. She pushed him back. Thereafter, 2 to 3 peoples
are gathered there. She do not remember who had pulled her from her
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back side. Thereafter, police came there. Police had brought her to the
police station alongwith some of the accused. She filed FIR Exh.4.
Police brought all the accused to the police station.
9. During her crossexamination she admitted that police had
caught hold only one of the accused and thereafter other accused are
brought. She denied that she and her friend Roshan are drunk in the
party. She further denied that nobody has hitted ballon and also
assaulted to her friend Roshan hence, she had not taken medical
treatment thereupon. She denied that accused never assaulted to her,
her friend Roshan and rickshaw driver. She also denied that nobody
had pushed her. She also denied that police had recorded her
statement after long time, hence, there is no any signature on the FIR.
She further denied that because of their misbehaviour under liquor the
case would be registered them, hence, she lodged this false complaint
against the accused.
10. Roshan Chandrashekhar Karkera, witness (P.W.3) deposes
at Exh.5 that incident occurred on 01/03/2018. He alongwith his wife
Poonam went to her friend's house for her birthday. After returning
somebody had thrown balloon on their rickshaw. They followed motor
cyclist and stopped one motor cycle at RTO Signal, in front of Vodafone
Showroom. They asked him. Thereafter, other motor cyclist was also
coming. They are very much aggressive on them. They have assaulted
them. Police also came there at the spot of incident. Police caught hold
two persons and brought to the police station. His wife has lodged FIR.
11. During his crossexamination he admitted that police never
recorded his statement after two months from the date of incident. He
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further admitted that in his friend's birthday party there are drinks. He
denied that he and his wife have taken drinks in the party. He further
denied that accused never thrown balloon and his wife has not get any
injury. He also denied that on the spot of incident there was
commotion between him and people and he dialed 100 numbers and
police had taken those peoples.
12. Sadanand Bharat Pote, Investigating Officer (P.W.4)
deposes at Exh.6 that in the year 2018 he was attached to Versova
police station and on 01.03.2018 he was on duty as station house
officer. Informant came to police. He registered her FIR Exh.7 as per
her version. Accused were brought to police station and he arrested
them. He prepared spot panchanama and recorded statement of
witnesses. Thereafter, he filed chargesheet against the accused
persons.
13. During his crossexamination he admitted that informant
and witness were brought to police station. He further admitted that
when injured come to police station police referred him for medical
treatment. He also admitted that informant and witness were not sent
for medical treatment. He admitted that they have not filed their
medical reports till filing of chargesheet. He denied that spot
panchanama was prepared at police station itself.
14. The advocate for accused has argued that there are grave
and material contradiction as well as omission in the evidence of
prosecution witness. The informant P.W.2 in her evidence has stated
that accused incident occurred on 02/03/2018 but as per P.W.3 and
P.W.4 incident occurred on 01/03/2018. The informant and his friend
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was under the influence of liquor that's why no medical certificate on
record. P.W.2 and P.W.3 were under the influence of liquor the case
would have been registered against them therefore they registered false
case against the accused persons. The rickshaw driver was not
examined by prosecution or no single eye witness. P.W.3 during his
crossexamination sated that on the same day of incident his statement
was recorded but as per the records his statement was recorded after
and half months.
15. I have carefully gone through the record. 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. The prosecution failed to prove the
charges levelled against the accused. Hence, I answer Points No. 1 to 5
in the negative.
AS TO POINT NO.6:
16. The prosecution failed to prove guilt of the accused
persons. Therefore, the accused are liable to be acquitted. In the result,
in answer to Point No.6, I pass the following order:
ORDER
1 The accused No.1 Rain Olyshish Disa, accused No.2 Bhumesh
Baboo Chapiyala, accused No.3 Joshua Rio Sura, accused
No.4 Bhavik Ravindra Solanki, accused No.5 Keano Ricky
D'Souza and accused No.6 Darshan Laxman Sakat are
acquitted of the offences punishable under Sections 141, 143,
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147, 148, 323, 504, 506 (2) r/w. 149 of the Indian Penal Code
read with 37 of Maharashtra Police Act vide Section 248 (1) of
the Code of Criminal Procedure.
2 Bail bonds of the accused stands cancelled.
3 The accused No. 1 to 6 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.
The Judgment is transcribed directly on the computer and
pronounced in open Court.
(A. I. Shaikh)
Date : 19/05/2023 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
spj
Typed on : 19.05.2023
Signed on : 19.05.2023
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