Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.2738/PW/2018
Received on : 04/10/2018
Registered on : 04/10/2018
Decided on : 05/08/2023
Duration : 04 Y. 10 M. 01 D.
Exh. : 07
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44TH COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY SUJITKUMAR C. TAYDE)
(JUDGMENT U/SEC. 355 OF CODE OF CRIMINAL PROCEDURE)
CNR NO.MHMM190099982018
(a) The serial No. of the case; : C.C.No.2738/PW/2018
(b) The date of commission of
the offence;
: 02/05/2017
(c) The name of the complainant
(if any);
: The State (Versova Police
Station in C. R. No. 138/2017).
(d) The name of the accused
person and his parentage and
residence;
: 1] Abdul Karim Musibat Ali
Shaikh,
Age – 31 Yrs.,
Occupation – Service,
R/o. Gilbert Hill Road,
Patkar Compound,
Andheri (W), Mumbai.
2] Shiraj Mehboob Abdul
Rehman,
Age – 49 yrs
Occupation – Tour and Travel,
R/o. 101, Nagina Bakery,
Bit Chowky No.3,
Gilbert Hill Road,
Andheri (W), Mumbai.
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3] Irfan Abdul Rehman Shaikh,
Age – 23 Yrs.
Occupation – Service,
R/o. New India Society,
Gaon Devi, Dongri,
Andheri (W), Mumbai.
4] Rukhsana Siraj Shaikh @
Papa,
Age – Nil,
Occupation Nil
R/o. 101, Nagina Bakery,
Bit Chowky No.3,
Gilbert Hill Road,
Andheri (W), Mumbai.
(e) The offence complained of
or proved ;
: Under Section 323, 324, 504
r/w. 34 of the Indian Penal
Code.
(f) The plea of the accused and
his examination (if any);
: The accused pleaded not guilty.
(g) The final order; : All the accused persons are
acquitted.
(h) The date of such order; : 05/08/2023
Learned APP for the State Ms. Seema Mokal,
Learned Advocate for all accused persons Mr. Shetty
J U D G M E N T
( Delivered on 05/08/2023. )
The accused no.1 to 4 have been chargesheeted for the
offence punishable under Sections 323, 324, 504 r/w. 34 of the Indian
Penal Code.
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The case of the prosecution in nutshell is as under :
2. On 01/05/2017 at about 19.00 hrs., an quarrel took place
between the wife of the informant and his neighbours and therefore,
the informant, Irfan Iqbal lodged the report in this regard in the police
station.
3. On 02/05/2017 at about 18.30 hrs. the accused Siraj called
the informant to discuss the facts of the quarrel. At about 19.00 hrs.
the informant came to his house. At that time accused no.2 and his
wife namely Ayba, accused no.1 and 2 were standing there. The
accused Siraj pushed the informant. The another accused beat him.
The accused sustained injury to the informant by means of wooden stick
and razer blade. Somehow the informant rescued himself from the
clutches of the accused persons and rushed to the police station to lodge
the report against the accused persons. His report was reduced into
writing and the offence punishable under Sections 323, 324, 504 r/w.
34 of the Indian Penal Cod came to be registered against the accused
persons vide crime no.138/2017. Further investigation was conducted
by the PoliceSub Inspector Shri Ganesh Ahire.
4. The investigating officer visited the spot of incident. He
recorded the statements of the witnesses. He seized the weapons used
in this crime and prepared the panchanama. He collected the relevant
medical certificates. Having completed the investigation, the charge
sheet came to be filed against the accused person under Section 173 of
Cr. P.C. against the accused no.1 to 4 for having committed the offence
punishable under Sections 323, 324, 504 r/w. 34 of the Indian Penal
Code.
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5. Having secured the presence of the accused, all the
documents filed alongwith the chargesheet were supplied to the
accused persons under Section 207 of Cr. P.C.
6. The charge for the offence punishable under Section 323,
324, 504 r/w. 34 of the Indian Penal Cod was read over to the accused
persons. They did not plead guilty. Hence, the trial was conducted.
7. 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.
POINTS FINDINGS
1] Does the prosecution prove that on
02.05.2017 at about 22.00 hrs. at Shastri
Nagar Chawl, Near Kavathe Khai, Andheri
(W), Mumbai, the accused no.1 to 4 in
furtherance of their common intention,
voluntarily caused hurt to the informant
Shri Irfan Iqbal Shaikh and thereby
committed an offence punishable under
section 323 r/w 34 of Indian Penal Code?
Disproved
2] Does the prosecution prove that on the
same date, place and time the accused no.1
to 4 in furtherance of their common
intention, voluntarily caused hurt to the
informant by means of bamboo on his head
and by means of blade on his chest which
were the instruments which used as an
instrument of an offence is likely to caused
death and there by committed offence
punishable u/s 324 r/w 34 of Indian Penal
Code?
Disproved
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3] Does the prosecution prove that on the
same date, place and time, the accused no.1
to 4 in furtherance of their common
intention, intentionally insulted the
informant by abusing him and gave
provocation to him to 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
Indian Penal Code?
Disproved
4] What order ? All the accused
persons are
acquitted as per
final order.
REASONS
AS TO POINTS NO. 1 TO 3:
8. These points are interconnected with each other.
Therefore, they are taken up together for consideration and
determination.
9. 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.
10. In this case, the prosecution has examined the informant,
Irfan Iqbal Shaikh, (P.W. No. 1) and Nasira Iqbal Shaikh (P.W. No. 2).
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The case is pending since last 4 years. But during this long period, the
prosecution examined only two witnesses. Hence, this case needs to be
disposed of on the basis of the evidence placed on record.
11. The informant/complainant namely Irfan Iqbal
Shaikh depsed that the accused are his neighbours. He further deposed
that on 02/05/2017, an quarrel took between him and the accused on
account of taking water. He testified that 10 to 15 persons gathered on
the spot but he does not know who beat him. Therefore, he lodged
report and FIR Exh.No.6 and Exh.No.7 against the accused persons.
12. In fact, though the informant/complainant admitted the
facts that the accused persons are known to him, yet he did not depose
a single word against the accused persons in respect of the incident
which is mentioned in the FIR. It is pertinent to note here that this
prime witness admitted his signature made on the FIR. But he denied its
contents. Moreover, he deposed that the police did not read over the
avernments made in the FIR. Thus, this star witness did not support the
prosecution and resiled from his statement made to be investigating
officer. Therefore, the complainant was cross examined at length. But
no incriminating material was brought on record against the accused
persons. In his crossexamination he admitted that the compromised
took place between them out of the Court and he does not want to
proceed further with this matter.
13. The eye witness Nasira Iqbal Shaikh (P.W.2) deposed that
an quarrel took between her and the accused on account of taking
water. She further deposed that 10 to 15 persons gathered on the spot
but she does not know who beat her. In her crossexamination she also
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admitted that the compromised took place between them out of the
Court and she does not want to proceed further with this matter.
14. At the outset, it is pertinent to note here that the statement
of the accused under Section 313 of Cr. P.C. is dispensed with since
there is no incriminating evidence against the accused persons placed
on record.
15. In the present case on hand, the prosecution did not
examine another eye witnesses. So also the prosecution did not prove
the spot of incident. There are material contradiction and omission in
the evidence adduced by the informant/complainant. The prosecution
did not examine the investigating officer to remove such contradiction
and omission. So also the prosecution did not examine the medical
officer who might have treated the informant. Thus, the evidence placed
on record falls short to prove the guilt of the accused persons beyond
reasonable doubt. In such circumstances, I have no hesitation to record
my finding in negative for points no. 1 to 3.
The logical corollary of my aforesaid findings leads me to
pass the following order:
ORDER
1] The accused No.1 Abdul Karim Musibat Ali Shaikh, accused
No.2 Shiraj Mehboob Abdul Rehman, accused No. 3 Irfan
Abdul Rehman Shaikh and accused No. 4 Rukhsana Siraj
Shaikh @ Papa are acquitted of the offences punishable under
Sections 323, 324, 504 r/w. 34 of the Indian Penal Code vide
Section 248 (1) of the Code of Criminal Procedure.
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2] Bail bonds of the accused No.1 to 4 stand cancelled.
3] In the chargesheet no article is shown to be seized in this
offence. Hence, there is no order in this regard.
3] The accused no.1 to 4 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.
5] The Judgment is pronounced in open Court.
(Sujitkumar C. Tayde)
Date : 05.08.2023 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
spj
Typed On: 05.08.2023
Signed On: 05.08.2023
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