Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO.2773/PW/2018
Filed on .. 09/10/2018
Registered on .. 09/10/2018
Delivered on .. 07/11/2019
Duration .. 01Y 00M 28D
CNR No. MHMM19-010340-2018
Exh. 17.
BEFORE 65th METROPOLITAN MAGISTRATE,
ANDHERI, MUMBAI.
(Presided over by S.C.Pathare)
(Judgment as per Sec. 355 of the Cr.P.C.)
(a) The serial number of the
case;
2773/PW/2018.
(b) The date of commission of
offence;
On 07.05.2018 from 23.00 hours till
23.30 hours.
(c) The name of the informant,
if any;
Through P.S.O. vileparle Police
Station(CR No.163/2018).
(d) The name of the accused
person, his parentage and
residence;
1. Kiran Hansappa Kamble.
Age : 25 years.
R/o. Room No.381,
Shastri Nagar, Vileparle East,
Mumbai.
2. Hiralal Apparao Shinde.
Age : 26 years.
R/o. As above.
3. Mangesh Vitthal Kamble.
Age : 24 years.
R/o. Room No.70,
Shastri Nagar, Vileparle East,
Mumbai.
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4. Jay @ Baban Namdeo Kamble.
Age : 25 years.
R/o. Room No.53,
Shastri Nagar, Vileparle East,
Mumbai.
5. Salman Rais Khan.
Age : 26 years.
R/o. Room No.138,
Shastri Nagar, Vileparle East,
Mumbai.
6. Santosh Apparao Shinde.
Age : 35 years.
R/o. Room No.381,
Shastri Nagar, Vileparle East,
Mumbai.
7. Dhananjay Vithal Kamble.
Age : 26 years.
R/o. Room No.70,
Shastri Nagar, Vileparle East,
Mumbai.
8. Shubham Arjun Bedarkar.
Age : 21 years.
R/o. Room No.138,
Shastri Nagar, Vileparle East,
Mumbai.
(e) The offence complained of
or proved;
U/Sec.143,144,145, 147, 148, 427,
324, 504 & 506(ii) r/w 149 of the
Indian Penal Code and 37(1)r/w
135 of the Bombay Police Act.
(f) The plea of the accused and
his examination, (if any);
Accused pleaded not guilty.
(g) The final order; As Per Final Order.
h) The date of such order; 07/11/2019.
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Appearance : Ld. APP. Shri. G.G. Khade for the State.
Ld. Adv. Shri. Rangnekar and Smt Gundal for all the
Accused.
JUDGMENT
(Delivered on 07.11.2019)
1. Accused have been charge-sheeted for the offences
punishable U/Sec.143,144,145, 147, 148, 427, 324, 504 & 506(ii) r/w
149 of the Indian Penal Code (for short “IPC”) and 37(1)r/w 135 of the
Bombay Police Act.
Factual Matrix :-
Informant Babu Gaikwad lodged report in the police station
contending that accused persons by forming unlawful assembly
assaulted informant and witnesses. In the said attack, accused beat
them by using instruments such as stumps, tommy, piece of floor &
sticks etc. Accused also abused and issued criminal intimidation during
the said incident.
2. On the basis of it, crime came to be registered. Police
prepared spot cum seizure panchnama. Injury certificates were
collected. Statements of witnesses were recorded and on completion of
the investigation, charge sheet came to be submitted in the court.
3. Charge has been framed vide Exh.2 to which accused pleaded
not guilty and claimed to be tried. Their defence is that of total denial
and false implication.
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4. Following points arose for my determination and I have
recorded findings thereon for the reasons discussed infra:-
SR.NO. POINTS FINDINGS
1 Whether prosecution proved that on
07.05.2018 from 23.00 hours till 23.30
hours, in front of Mahila Sangh school,
Hanuman road, vileparle East, Accused
in prosecution of common object were
found being members of unlawful
assembly ?
Not proved.
2 Whether prosecution proved that on the
above date, time & place, in the same
transaction, Accused were members of
unlawful assembly armed with deadly
weapons ? Not proved.
3 Whether prosecution proved that on the
above date, time & place, in the same
transaction, Accused were members of
unlawful assembly remained member of
the same knowing that it was
commanded to disburse ? Not proved.
4 Whether prosecution proved that on the
above date, time & place, in the same
transaction, Accused were members of
unlawful assembly committed offence of
rioting ?
Not proved.
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5 Whether prosecution proved that on
the above date, time & place, in the
same transaction, Accused were
members of unlawful assembly
committed rioting with deadly
weapons? Not proved.
6 Whether prosecution proved that on
the above date, time & place, in the
same transaction, Accused with intent
to cause harm/loss or damage to the
property ? Not proved.
7 Whether prosecution proved that on
the above date, time & place Accused
in the same transaction, voluntarily
caused hurt to the informant and
witness by stick, stump and tommy ?
Not proved.
8. Whether prosecution proved that on
the above date, time & place Accused
in the same transaction, intentionally
insulted by abusing the informant and
witnesses and thereby gave
provocation to them intending that
such provocation would cause them to
break the public peace ? Not proved.
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9 Whether prosecution proved that on
the above date, time & place, Accused
in the same transaction, threatened
the informant with intent to cause
alarm to the same ?
Not proved.
10 Whether prosecution proved that on
the above date, time & place, Accused
in the same transaction, violated the
order of the commissioner of police ?
Not proved.
11 What order ? As Per Final
Order.
R E A S O N S
As to point No. 1 to 10 :
5. In order to establish guilt of the accused the prosecution
examined total five witnesses. PW1 Babu Gaikwad (Informant) at
Exh.11, PW2 Ishwar Gaikwad (Eye witness/injured) at Exh.13, PW3
Sabling Gaikwad (Eye witness/injured) at Exh.14, PW4 Selvi Gaikwad
(Eye witness/injured) at Exh.15. Lastly prosecution examined PW5
Suresh Gaikwad (Eye witness/injured) at Exh. 16.
Complainant party submitted pursis dtd.07.11.2019 and
closed evidence.
6. Statements of accused U/Sec.313 of the Cr.P.C came to be
dispensed with.
7. In this case, testimonies of informant and other injured
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persons have been placed on the record as above. I have perused those
testimonies and found that PW1 to 5 are vaguely deposing that there
was some incident in the crowd. PW’s categorically admitted that
present accused neither attacked them nor they abused or threatened
them as alleged. It is true that the Ld APP with the permission of the
court took their searching cross examination, but they refused to depose
anything incriminating against the accused. When injured and
witnesses are silent on material aspects, in that event this court suo-
moto cannot presume or assume that accused were involved in the
alleged incident. In short there is absence of clear,cogent/reliable
evidence against the accused.
8. It is the settled position of law that prosecution has to
establish guilt of the accused beyond reasonable doubt. However, in
the present case, it has failed to do so. In view of the above peculiar
facts, circumstances and evidence, this accused are found entitled to the
benefit of doubt. Accordingly, I answered above points in the negative
and proceed to pass infra order :-
ORDER
i) Accused mentioned above are acquitted of the offences
punishable U/Sec.143,144,145, 147, 148, 427, 324, 504 & 506(ii) r/w
149 of the IPC (for short “IPC”) and 37(1)r/w 135 of the Bombay Police
Act vide the provisions of section 248(1) of the Cr.P.C.
ii) Their bail bonds (if any) are cancelled.
iii) The accused are directed to furnish P.B. of Rs.5,000/- each for
appearance before the Hon'ble Appellate Court towards compliance of
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Section 437(A) of the Cr.P.C.
iv) The seized articles (weapons)being worthless be destroyed
after period of appeal.
v) Dictated & declared in the open Court.
Date : 07.11.2019. (S.C. Pathare)
Metropolitan Magistrate,
65th Court, Andheri, Mumbai.
ask
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