Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.4403952/PS/2018
Received on : 20/12/2018
Registered on : 20/12/2018
Decided on : 08/03/2022
Duration : 03 Y. 02 M. 16 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)
CNR NO.:MHMM190139032018
(a) The serial No. of the case; : C.C.No.4403952/PS/2018
(b) The date of commission of
the offence;
: 13/04/2018
(c) The name of the complainant
(if any);
: The State (Versova Police
Station in C. R. No. 156/2018)
(d) The name of the accused
person and his parentage and
residence;
: Divakar Shobharaj Chandani,
Age 36 Years,
Occupation Service,
R/o. 1101/B5,
New Mhada Tower,
Lokhandwala Back Road,
Versova, Andheri (W),
Mumbai.
(e) The offence complained of
or proved ;
: Under Section 279, 429, 201 of
the Indian Penal Code r/w. 11, 1
(a), (I) of Wildlife Protection
Act.
(f) The plea of the accused and
his examination (if any);
: The accused pleaded not guilty.
(g) The final order; : The accused is acquitted.
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(h) The date of such order; : 08/03/2022
Mr. A. M. Shah, APP for the State.
Mr. Harish Shetty, Advocate for accused.
J U D G M E N T
( Delivered on 08th March, 2022 )
1. The accused is prosecuted for the offences punishable
under Sections 279, 429, 201 of the Indian Penal Code r/w. 11, 1 (a),
(I) of Wildlife Protection Act.
2. In brief, it is the case of the prosecution that on
14/04/2018 at about 21.00 hrs. when complainant present in her
hoouse. One person namely Bharat Hari Sharma made a call to her on
her mobile and told that on 13/04/2018 at about 11.45 hours at New
Mhada Society, Lokhandwala Back Road, gate of Versova Heights
Society one person had driven his vehicle bearing no.MH02DS9672
on the dog and he died. The said person had taken the dog in bed sheet
and throw the said dog to unknown place. On 15/04/2018
complainant went to the spot and inquired about the incident. On
inquiry she knows about the incident from one watchman and Anita
D'Souza that the driver of the said motor car is Divakar Chandani.
Complainant with the help of Bharat Sharma checked the C.C. T.V.
Footage and found that the accused was the driver of the said motor
car. Hence, informant lodged report of the incident against accused.
3. On the basis of the report given by the informant, crime
No. 156/2018 came to be registered against the accused. I.O. arrested
the accused. During further investigation I.O. recorded statement of
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witnesses and after completion of investigation, I.O. filed chargesheet.
4. My learned predecessor framed charge against the accused
for the above mentioned offences. The accused pleaded not guilty and
claimed to be tried. The prosecution has examined four witnesses. The
statement of the accused under Section 313 of the Code of Criminal
Procedure came to be recorded. The defence of the accused is that of
total denial.
5. The points for determination alongwith my findings
thereon as under :
POINTS FINDINGS
1] Does the prosecution prove that the accused
drove his Motor Car bearing no.MH02DS
9672, on a public road, in a manner so rash or
negligent as to endanger human life, or to be
likely to cause hurt or injury to any other
person ?
In the negative
2] Does the prosecution prove that the accused
committed mischief of giving dash thereby
maiming the dog valued above Rs.50/? In the negative
3] Does the prosecution prove that the accused
knowing that the offence namely of negligent
driving punishable with imprisonment has
been committed caused certain evidence
connected with the said offence namely by
leaving the maiming dog by wrapping in bed
sheet to the unknown place with intention to
screen the offender/himself from legal
punishment?
In the negative
4] Does the prosecution prove that the accused
caused injury to the dog by rash and negligent
driving of aforesaid motor car? In the negative
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5] What order ? The accused is
acquitted.
R E A S O N S
AS TO POINT NOS. 1 to 4 :
6. Prosecution has examined in all four witnesses. The
informant Bimlesh Govindram Navani (P.W.1) deposes at Exh.04 that
incident had happened three years back. Incident occurred at Versova
in Mhada Society at evening time. At the time of incident she was in
her house and he received call of Aarti Sharma. She told her that one
dog had died. She has shown her a video clip about the accident. She
also saw her the video that he picked the dog and went away from the
spot. She filed complaint against the person as per the information of
Aarti at Exh.5.
7. During the crossexamination she deposed that she never
seen the actual incident. The accident taken place in the building's
compound. There are many dogs in building. She further stated that
she cannot say name of the building of Mhada. She filed many cases of
such kind. She stated to police that she received the call of Aarti Sharma
and she told her that one dog had died because of car accident. She also
saw her a video that accused picked the dog and went away from the
spot. She further stated that she have not personally seen who was
actually driving the vehicle.
8. Bharat Hari Sharma (P.W.2) deposes at Exh.06 that
incident occurred in the year 2018 at Versova height compound at
about 11.15 p.m. At that time he was present in his house. He have
received call of watchman that one person had driven his vehicle on the
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dog. He inquired. He found that said person residing in the same
building in a 'B' Wing. He sent the watchman to the house of that
person. Thereafter, watchman again told him that the said person had
taken the dog and throw the said dog to unknown place.
9. During the crossexamination he deposed that he know the
complainant. He had received call of watchman. He told that one
person had drive his vehicle on the dog. He inquired. He found that
person residing in the same building in a 'B' Wing. He sent the
watchman to the house of that person who committed an accident.
Thereafter, watchman again told him that the said person had taken the
dog and throw the said dog to unknown place. He first time stated in
evidence all the fact. He further stated that he had not seen actual
incident and he have no personal knowledge about the incident. He
had not admitted that he received phone call of the watchman.
10. Pradeep Karansingh Sharma, pancha (P.W.3) deposes at
Exh.07 that police had called him to act as pancha at Versova Heights
Society in the year 2018. He had seen one four wheeler car. Police
recorded panchanama in his presence. After that police had taken his
signature on panchanama.
11. During the crossexamination he deposed that he know the
complainant Bimlesh Madam. She was his neighbourer. Bimlesh
Madam had called him to act as a pancha. Police had taken his
signature in the police station. He had not admitted that he do not
know anything and on the say of Bimlesh Madam he had signed it.
12. Maya Gulab Gawade, Investigating Officer (P.W.4) deposes
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at Exh.09 that incident occurred on 13/04/2018. She was attached to
Versova Police Station as a PSI. Informant Bimlesh Navani has lodged
the report to police station. She lodged report that person from Versova
Height Society, Mhada has driving rashly and dashed to the dog. She
investigated this present crime. She has recorded the statement of
witnesses. In the investigation she found the accused has driven his
vehicle rashly and given dashed to the dog in the society. Thereafter,
he put the body of the dog in his car and thrown the dog at unknown
place.
13. During the cross examination she is stated that informant is
not eye witness of the incident. Alleged incident had taken place within
the compound wall and in front of gate of the society.
14. I have carefully gone through the evidence. I found that in
the present case PW no.1 and PW no.2 are hearsay witnesses. PW no.4
is investigating officer and her evidence is formal in nature. So far as
evidence of PW no.3 are considered. He is the pancha witness. There is
no incriminating substance found against the accused. The prosecution
failed to adduce any evidence to prove the case of prosecution. Hence, I
hold that the prosecution failed to prove guilt of the accused. Hence, I
answer point No.1 to 4 in the negative.
AS TO POINT NO.5 :
15. The prosecution failed to prove guilt of accused. Therefore,
the accused is liable to be acquitted. In the result, in answer to Point
No.5, I pass the following order:
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ORDER
1. The accused Divakar Shobharaj Chandani is acquitted of the
offences punishable under Sections 279, 429, 201 of the Indian
Penal Code r/w. 11, 1 (a), (I) of Wildlife Protection Act vide
Section 255 (1) of the Code of Criminal Procedure.
2. Bail bond of the accused stand cancelled.
3. The accused to execute P.R. Bond of Rs.15,000/ (Rupees
Fifteen Thousand only) vide Section 437–A of the Code of
Criminal Procedure for appearance before the higher court, if
said court issues notice to him for his appearance.
The Judgment is transcribed directly on the computer and
pronounced in open Court.
(A. I. Shaikh)
Date : 08.03.2022 Metropolitan Magistrate,
44th Court, Andheri, Mumbai
spj
Typed on : 08.03.2022
Signed on : 08.03.2022
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