Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.3280/PW/2018
Received on : 07/12/2018
Registered on : 07/12/2018
Decided on : 16/03/2023
Duration : 04 Y. 03 M. 08 D.
Exh. : 11
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.MHMM190134592018
(a) The serial No. of the case; : C.C.No.3280/PW/2018
(b) The date of commission of
the offence;
: 29/05/2018
(c) The name of the
complainant
(if any);
: The State (Amboli Police Station
in C. R. No. 256/2018).
(d) The name of the accused
person and his parentage
and residence;
: 1] Ajaj Hussain Patel,
Age – 26 Yrs.
Occupation – Nil,
R/o. Rehab Building,
CWing, Room No.229,
Veera Desai Road,
In front of Prathamesh park,
Andheri (W), Mumbai – 53.
2] Abbas Wajidali Saudagar,
Age – 24 Yrs.
Occupation – Nil,
R/o. Rehab Building,
CWing, Room No.628,
Veera Desai Road,
In front of Prathamesh park,
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Andheri (W), Mumbai – 53.
3] Mubarak @ Farid Kalim
Mirza,
Age – 27 Yrs.
Occupation – Service,
R/o. Rehab Building,
BWing, Room No.418,
Veera Desai Road,
In front of Prathamesh park,
Andheri (W), Mumbai – 53.
4] Aadam Ali Rehman Shaikh,
Age – 30 Yrs.
Occupation – Nil,
R/o. Rehab Building,
CWing, Room No.428,
Veera Desai Road,
In front of Prathamesh park,
Andheri (W), Mumbai – 53.
5] Mansoor Ismail Momin,
Age – 30 Yrs.
Occupation – Nil,
R/o. Rehab Building,
BWing, Room No.421,
Veera Desai Road,
In front of Prathamesh park,
Andheri (W), Mumbai – 53.
6] Kasim Maula Shaikh,
Age – 22 Yrs.
Occupation – Nil,
R/o. Rehab Building,
CWing, Room No.728,
Veera Desai Road,
In front of Prathamesh park,
Andheri (W), Mumbai – 53.
(e) The offence complained of
or proved ;
: Under Sections 326, 323, 143,
147, 148, 149 of Indian Penal
Code read with 37 (1) (A) read
with 135 of Mumbai Police Act.
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(f) The plea of the accused and
his examination (if any);
: Accused are pleaded not guilty.
(g) The final order; : All the accused are acquitted.
(h) The date of such order; : 16/03/2023
Ms.seema Mokal, Ld. APP for the State.
Mr.D.D. Kerkar, Advocate for all accused.
J U D G M E N T
( Delivered on 16/03/2023. )
1. The accused are prosecuted for the offences punishable
under Sections 326, 323, 143, 147, 148, 149 of Indian Penal Code read
with 37 (1) (A) read with 135 of Mumbai Police Act.
2. It is the case of the prosecution is that on 29/05/2018 at
about 17.15 hrs. informant sitting in the rickshaw near Billa Masjid
alongwith his friends. At that time his friend Ashish Gupta had called
him and told accused no. 1 had made quarrel with him. He met Ashish
Gupta and going to Prathamesh Park. Accused no.1 along with his
friends came there for Namaz. Informant asked the friend of accused
no.1 for what reason quarrel had happened. Therefore, accused no.1
caught hold his collar and told him “Tum Log Jahan Rahete Ho,
Wahanse Ukhad Dalunga”. His friends pulled him back. Thereafter
they all went from the spot. Thereafter, at about 19.30 hrs. scuffled
was going on between them. The brother of informant Anil intervened
them. Accused no.1 came alongwith his friends and other 15 to 20
friends. They assaulted Anil by fist and kick blows. Accused no.1
assaulted his brother Anil by means of sharp edged knife on his left
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thigh. Therefore, blood was oozing from his thigh and he became
unconscious. Therefore, he alongwith his brother and friend took Anil
to Cooper hospital for medical treatment. Hence, he lodged report
against the accused persons.
3. On the basis of the report given by the informant, crime
No. 256/2018 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. The charge is framed against the accused for the above
mentioned offence. The accused are pleaded not guilty and claimed to
be tried. The prosecution has examined only two witnesses in this case.
As no incriminating evidence came on record in the evidence of the
prosecution, the statement of the accused under Section 313 of the
Code of Criminal Procedure came to be dispensed with.
5. The points for determination alongwith my findings
thereon as under :
POINTS FINDINGS
1] Does the prosecution prove that the
accused no.1 to 6 along with 15 to 20
unknown persons were the members of an
unlawful assembly that in prosecution of
their common object voluntarily caused
grievous hurt to the brother of informant
In the negative
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Anil Kushalkar by means of knife?
2] Does the prosecution prove that the
accused no.1 to 6 along with 15 to 20
unknown persons were the members of an
unlawful assembly that in prosecution of
their common object voluntarily caused
hurt to the brother of informant by hand?
In the negative
3] Does the prosecution prove that the
accused no.1 to 6 along with 15 to 20
unknown persons were the members of an
unlawful assembly having common object
to commit offence?
In the negative
4] Does the prosecution prove that the
accused no.1 to 6 along with 15 to 20
unknown persons were a members of an
unlawful assembly and in prosecution of
their common object of the said assembly,
to committed offence of rioting?
In the negative
5] Does the prosecution prove that the
accused no.1 to 6 along with 15 to 20
unknown persons were a member of an
unlawful assembly and were at the time
armed deadly weapon namely knife?
In the negative
6] Does the prosecution prove that accused
no.1 to 6 alongwith 15 to 20 unknown
persons, gathered unlawful assembly in
contravention of the order issued by
Deputy Commissioner of Police Operation,
Gr. Bombay?
In the negative
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7] What order ? All the accused
are acquitted.
REASONS
AS TO POINTS NO. 1 TO 6:
6. These points are interconnected with each other, therefore,
they are taken up together for consideration and determination.
7. Swapnil Babu Kushalkar, informant (P.W.1) deposes at
Exh.9 that incident occurred in the year 2018. sombody has assaulted
his brother with knife. His friend has stated him about the incident.
Thereafter, he had taken him to the hospital and lodged the report. He
lodged report against the accused as they are standing at the spot of
incident.
8. Anil Babu Kushalkar, (P.W.2) deposes at Exh.10 that he do
not know who has assaulted him. He know the accused, they are his
friends. Both the witnesses are not supporting to the prosecution case.
9. I have carefully gone through the record. The prosecution
has examined only two witnesses in this case i.e. Swapnil Babu
Kushalkar, informant (P.W. 1) and Anil Babu Kushalkar (P.W.2). They
are hostile witnesses. They are not supporting to the prosecution case.
The prosecution failed to prove the charges levelled against the accused.
Hence, I answer Points No. 1 to 6 in the negative.
AS TO POINT NO.7:
10. The prosecution failed to prove guilt of the accused
persons. Therefore, the accused are liable to be acquitted. In the result,
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in answer to Point No.7, I pass the following order:
ORDER
1 The accused No.1 Ajaj Hussain Patel, accused No.2 Abbas
Wajidali Saudagar, accused No.3 Mubarak @ Farid Kalim
Mirza, accused No.4 Aadam Ali Rehman Shaikh, accused
No.5 Mansoor Ismail Momin and accused No.6 Kasim Maula
Shaikh are acquitted of the offences punishable under Sections
326, 323, 143, 147, 148, 149 of Indian Penal Code read with
37 (1) (A) read with 135 of Mumbai 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 : 16/03/2023 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
spj
Typed on : 16.03.2023
Signed on : 16.03.2023
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