1 SC690.17 Received on : 12/12/2017 Registered on : 12/12/2017 Decided on : 04/02/2019 Duration : Y M D 01 01 23 Exh.30 IN THE BOMBAY CITY CIVIL & SESSIONS COURT AT BOMBAY Sessions Case No.690 of 2017 The State of Maharashtra (At the instance of Bhoiwada Police Station, C.R.
No.149/17)) ..Prosecution V/s.
Kalidas @ Ajay Pravin Makwana age 32 years, residing at B.D.D.
Chawl no.5, room no.50, Dahiwalkarbua Marg, Naigaon, Mumbai14 ..Accused Coram : H.H.THE SESSIONS JUDGE Mrs.P.V.
GANEDIWALA Dated : 4th February,2019 (C.R.No.19) APP Mr.Ramesh Siroya for State.
Advocate Mr.R.
M. Patne (State appointed) for the accused.
O R A L
---------------------------------------------------------------------------------------------------- JUDGMENT The above named accused has faced the trial for the offence punishable under Sections 302 of the Indian Penal Code in C.R. No.149/17 at the instance of Bhoiwada Police Station. 2 SC690.17
2. The prosecution case in brief is as under: AccusedKalidas @ Ajay Makwana and deceased John @ Mukesh Makwana were real brothers. On 1st July,2017 Vinod Khillare (PW 1) alongwith John and Mahesh were sitting on the ground near the house of deceased John and drinking tadi. The accused came there and started arguing with his younger brother John @ Mukesh. Vinod (PW 1) gave him understanding and sent to his house. On the request of John, they all went to the house of John. They saw accused abusing and beating his mother. Vinod (PW 1) slapped Ajay as he was beating his mother. Thereafter, a fight started between Ajay and John in their house. Ajay took out a cricket bat which was kept behind the door and hit on the head of John. Ajay also hit with the bat on the leg of the Vinod (PW 1) and therefore, Vinod came out of their house. Ajay bolted door from inside. The scuffle between Ajay, John and their mother was going on inside the house. Vinod (PW 1) alongwith Mahesh came down and were standing on the ground floor of the building.
3. Thereafter, the mother of Ajay came running and she was suggested to go to police station. Accordingly, she went to the police station. PSI Deepali Bhosale (PW 4) immediately rushed to the spot and carried unconscious John to KEM Hospital. He was declared dead before admission. On the basis of information of Madhubai (PW 2), PSI Deepali Bhosale (PW 4) obtained crime no.149/17 and ADR No.52/17 from the police station. She prepared inquest panchanama (Exh.24) and took cloths of deceased (Art.2 colly.) into custody. The body was sent for postmortem. Thereafter, PSI Bhosale came back to the police 3 SC690.17 station and registered F.I.R. (Exh.16 colly.) Again she proceeded to the spot and prepared spot panchanama (Exh.17) and seized the cricket bat (Art.1)
4. Thereafter, the investigation was marked to API Sandip Gawai (PW 5) on 4th July,2017. He recorded statements of eyewitnesses. He also arranged for recording of statements under Section 164 of Code of Criminal Procedure. He arrested the accused vide arrest panchanama (Exh.27). After completion of investigation, he filed chargesheet before the court of Metropolitan Magistrate, 29th Court, Dadar, Mumbai..
5. As the offence punishable under Section 302 of Indian Penal Code, being exclusively triable by the Court of Sessions, the Court of Metropolitan Magistrate in its turn, committed the case to this court vide committal order dated 2nd December,2017.
6. The charge (Exh.3) was framed against the accused on 21st March,2018. The charge was read over and explained to the accused in his vernacular to which he pleaded not guilty and claimed to be tried. His plea was recorded vide Exh.4.
7. The prosecution has examined in all 5 witnesses PW 1Vinod Sajjan KhillareThe friend of the accused and John. PW 2Madhubhai Pravin MakwanaMother of deceased and accused who lodged the FIR (Exh.16 colly.) PW 3Dr.Vikrant Nandkishore Waghmare (attached to KEM Hospital at the relevant time) who examined the deceased Mukesh Makwana. 4 SC690.17 PW 4Deepali Mahesh Bhosale PSI (attached to Bhoiwada police station at the relevant time). PW 5Sandip Vishnuji GawaiInvestigating Officer.
8. I have recorded statement of the accused under Section 313 of Cr.P.C.(Exh.29). The defence of the accused is of total denial. As this case is not the case of no evidence against the accused, he was not acquitted under Section 232 of the Code of Criminal Procedure. He was called to enter upon his defence to which he denied.
9. I have heard ld.APP Mr.Siroya for State and ld.counsel Mr.Patne for the accused.
10. The following points arise for my consideration and my findings thereon are as under for the reasons to follow: POINTS FINDINGS 1) Does the prosecution prove that the death of John @ Mukesh is a homicidal death? ..In the negative 2) Does the prosecution prove that on 01/07/2017 at about 21.30 hours at New BDD Chawl no.5, room no.15, Dahiwalkarbua Marg, Naigaon, Dadar, Mumbai the accused committed murder of his brother Mukesh Makwana by means of ..In the negative cricket bat? 3) What order? ..As per final order 5 SC690.17 R E A S O N S
11. Point nos.1 and 2 At the outset, as per the evidence of medical officer Dr.Vikrant Waghmare (PW 3), the final cause of death of the deceased Mukesh is Cerebral Oedema due to consumption of ethly alcohol. He gave his opinion on the basis of histopathological report (Exh.20) and C.A. report (Exh.21) apart from autopsy performed by him on the dead body on the next day of the incident. In his crossexamination he has admitted that he did not find any internal or external injury which resulted into the death of the deceased.
12. PW 1Vinod Khillare claims to have witnessed the accused hitting his younger brother John @ Mukesh. However, thereafter he could not see the incident. In his crossexamination he has admitted that he did not see blood coming from the head of John. He also admitted that he himself and deceased John @ Mukesh used to drink tadi and were also smoking chilum.
13. PW 2Madhubai Pravin Makwana, the mother of the accused and the deceased deposed that accusedKalidas hit Mukesh with cricket bat. In her crossexamination she has admitted that her both sons were having habit of drinking tadimadi and deceased Mukesh was smoking ganja, charas etc. She also admitted that there were 34 persons in her house at the relevant time and there was scuffle between them. She has admitted that when she went to police station, Mukesh was lying alive and police reached late on the spot. Except this evidence, there is nothing on record to fix guilt on the accused. 6 SC690.17
14. PW 1Vinod Khillare only saw one blow by the accused on the head of his younger brother. PW 2Madhubai mother of the accused and deceased has admitted that when she went to police station, his son was alive and she alongwith police reached the spot late. There is nothing on record as to what happened during the period between she left the spot and came with police.
15. The doctor who examined the deceased did not see any injury internal or external on the dead body. The final cause of death is Cerebral Oedema due to consumption of ethly alcohol. The mother of the deceased admitted that the deceased was having habit of consuming liquor, charas, gamja etc. In the light of this evidence, the accused is entitled to get the benefit of doubt. The prosecution have failed to prove the homicidal death of the deceased and therefore the charge of the murder cannot be attributed to the accused.
16. PW 4PSI Deepali Bhosale and PW 5API Sandip Gawai are the investigation officers and their evidence is formal in nature. I answer both the points in the negative and pass the following order: O R D E R 1) Accused Kalidas @ Ajay Pravin Makwana is hereby acquitted of the offence punishable under Section 302 of the Indian Penal Code,1860. 2) The accused is in custody since 2nd July,2017. He shall be released forthwith if not required in any other case. 3 ) The accused to furnish personal bond of Rs.5,000/ and surety in the like amount vide compliance u/s.437A of the Code 7 SC690.17 of Criminal Procedure. 4) All the muddemal property being worthless, be destroyed after appeal period is over. 04/02/2019 (P.V.GANEDIWALA) Sessions Judge, Gr.Bombay. Dictated on : 04/02/2019 Transcribed on : 05/02/2019 Signed by HHJ on : 8 SC690.17 CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER Name of Stenographers: Mrs.Aruna S. Jayade Upload date and time: 07/02/2019 (At 4.00 p.m.) Name of the Judge H.H.THE PRINCIPAL JUDGE Mrs.P.V.GANEDIWALA(C.R.No.19) Date of Pronouncement of Order 4th February,2019 Order signed by P.O. on 7th February,2019 Order uploaded on 7th February,2019
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No.149/17)) ..Prosecution V/s.
Kalidas @ Ajay Pravin Makwana age 32 years, residing at B.D.D.
Chawl no.5, room no.50, Dahiwalkarbua Marg, Naigaon, Mumbai14 ..Accused Coram : H.H.THE SESSIONS JUDGE Mrs.P.V.
GANEDIWALA Dated : 4th February,2019 (C.R.No.19) APP Mr.Ramesh Siroya for State.
Advocate Mr.R.
M. Patne (State appointed) for the accused.
O R A L
---------------------------------------------------------------------------------------------------- JUDGMENT The above named accused has faced the trial for the offence punishable under Sections 302 of the Indian Penal Code in C.R. No.149/17 at the instance of Bhoiwada Police Station. 2 SC690.17
2. The prosecution case in brief is as under: AccusedKalidas @ Ajay Makwana and deceased John @ Mukesh Makwana were real brothers. On 1st July,2017 Vinod Khillare (PW 1) alongwith John and Mahesh were sitting on the ground near the house of deceased John and drinking tadi. The accused came there and started arguing with his younger brother John @ Mukesh. Vinod (PW 1) gave him understanding and sent to his house. On the request of John, they all went to the house of John. They saw accused abusing and beating his mother. Vinod (PW 1) slapped Ajay as he was beating his mother. Thereafter, a fight started between Ajay and John in their house. Ajay took out a cricket bat which was kept behind the door and hit on the head of John. Ajay also hit with the bat on the leg of the Vinod (PW 1) and therefore, Vinod came out of their house. Ajay bolted door from inside. The scuffle between Ajay, John and their mother was going on inside the house. Vinod (PW 1) alongwith Mahesh came down and were standing on the ground floor of the building.
3. Thereafter, the mother of Ajay came running and she was suggested to go to police station. Accordingly, she went to the police station. PSI Deepali Bhosale (PW 4) immediately rushed to the spot and carried unconscious John to KEM Hospital. He was declared dead before admission. On the basis of information of Madhubai (PW 2), PSI Deepali Bhosale (PW 4) obtained crime no.149/17 and ADR No.52/17 from the police station. She prepared inquest panchanama (Exh.24) and took cloths of deceased (Art.2 colly.) into custody. The body was sent for postmortem. Thereafter, PSI Bhosale came back to the police 3 SC690.17 station and registered F.I.R. (Exh.16 colly.) Again she proceeded to the spot and prepared spot panchanama (Exh.17) and seized the cricket bat (Art.1)
4. Thereafter, the investigation was marked to API Sandip Gawai (PW 5) on 4th July,2017. He recorded statements of eyewitnesses. He also arranged for recording of statements under Section 164 of Code of Criminal Procedure. He arrested the accused vide arrest panchanama (Exh.27). After completion of investigation, he filed chargesheet before the court of Metropolitan Magistrate, 29th Court, Dadar, Mumbai..
5. As the offence punishable under Section 302 of Indian Penal Code, being exclusively triable by the Court of Sessions, the Court of Metropolitan Magistrate in its turn, committed the case to this court vide committal order dated 2nd December,2017.
6. The charge (Exh.3) was framed against the accused on 21st March,2018. The charge was read over and explained to the accused in his vernacular to which he pleaded not guilty and claimed to be tried. His plea was recorded vide Exh.4.
7. The prosecution has examined in all 5 witnesses PW 1Vinod Sajjan KhillareThe friend of the accused and John. PW 2Madhubhai Pravin MakwanaMother of deceased and accused who lodged the FIR (Exh.16 colly.) PW 3Dr.Vikrant Nandkishore Waghmare (attached to KEM Hospital at the relevant time) who examined the deceased Mukesh Makwana. 4 SC690.17 PW 4Deepali Mahesh Bhosale PSI (attached to Bhoiwada police station at the relevant time). PW 5Sandip Vishnuji GawaiInvestigating Officer.
8. I have recorded statement of the accused under Section 313 of Cr.P.C.(Exh.29). The defence of the accused is of total denial. As this case is not the case of no evidence against the accused, he was not acquitted under Section 232 of the Code of Criminal Procedure. He was called to enter upon his defence to which he denied.
9. I have heard ld.APP Mr.Siroya for State and ld.counsel Mr.Patne for the accused.
10. The following points arise for my consideration and my findings thereon are as under for the reasons to follow: POINTS FINDINGS 1) Does the prosecution prove that the death of John @ Mukesh is a homicidal death? ..In the negative 2) Does the prosecution prove that on 01/07/2017 at about 21.30 hours at New BDD Chawl no.5, room no.15, Dahiwalkarbua Marg, Naigaon, Dadar, Mumbai the accused committed murder of his brother Mukesh Makwana by means of ..In the negative cricket bat? 3) What order? ..As per final order 5 SC690.17 R E A S O N S
11. Point nos.1 and 2 At the outset, as per the evidence of medical officer Dr.Vikrant Waghmare (PW 3), the final cause of death of the deceased Mukesh is Cerebral Oedema due to consumption of ethly alcohol. He gave his opinion on the basis of histopathological report (Exh.20) and C.A. report (Exh.21) apart from autopsy performed by him on the dead body on the next day of the incident. In his crossexamination he has admitted that he did not find any internal or external injury which resulted into the death of the deceased.
12. PW 1Vinod Khillare claims to have witnessed the accused hitting his younger brother John @ Mukesh. However, thereafter he could not see the incident. In his crossexamination he has admitted that he did not see blood coming from the head of John. He also admitted that he himself and deceased John @ Mukesh used to drink tadi and were also smoking chilum.
13. PW 2Madhubai Pravin Makwana, the mother of the accused and the deceased deposed that accusedKalidas hit Mukesh with cricket bat. In her crossexamination she has admitted that her both sons were having habit of drinking tadimadi and deceased Mukesh was smoking ganja, charas etc. She also admitted that there were 34 persons in her house at the relevant time and there was scuffle between them. She has admitted that when she went to police station, Mukesh was lying alive and police reached late on the spot. Except this evidence, there is nothing on record to fix guilt on the accused. 6 SC690.17
14. PW 1Vinod Khillare only saw one blow by the accused on the head of his younger brother. PW 2Madhubai mother of the accused and deceased has admitted that when she went to police station, his son was alive and she alongwith police reached the spot late. There is nothing on record as to what happened during the period between she left the spot and came with police.
15. The doctor who examined the deceased did not see any injury internal or external on the dead body. The final cause of death is Cerebral Oedema due to consumption of ethly alcohol. The mother of the deceased admitted that the deceased was having habit of consuming liquor, charas, gamja etc. In the light of this evidence, the accused is entitled to get the benefit of doubt. The prosecution have failed to prove the homicidal death of the deceased and therefore the charge of the murder cannot be attributed to the accused.
16. PW 4PSI Deepali Bhosale and PW 5API Sandip Gawai are the investigation officers and their evidence is formal in nature. I answer both the points in the negative and pass the following order: O R D E R 1) Accused Kalidas @ Ajay Pravin Makwana is hereby acquitted of the offence punishable under Section 302 of the Indian Penal Code,1860. 2) The accused is in custody since 2nd July,2017. He shall be released forthwith if not required in any other case. 3 ) The accused to furnish personal bond of Rs.5,000/ and surety in the like amount vide compliance u/s.437A of the Code 7 SC690.17 of Criminal Procedure. 4) All the muddemal property being worthless, be destroyed after appeal period is over. 04/02/2019 (P.V.GANEDIWALA) Sessions Judge, Gr.Bombay. Dictated on : 04/02/2019 Transcribed on : 05/02/2019 Signed by HHJ on : 8 SC690.17 CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER Name of Stenographers: Mrs.Aruna S. Jayade Upload date and time: 07/02/2019 (At 4.00 p.m.) Name of the Judge H.H.THE PRINCIPAL JUDGE Mrs.P.V.GANEDIWALA(C.R.No.19) Date of Pronouncement of Order 4th February,2019 Order signed by P.O. on 7th February,2019 Order uploaded on 7th February,2019
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