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Presented on : 12.10.2015 Registered on : 07.10.2015 Decided on : 21.04.2017 Duration : Y M D 01 06 14 Exh.
No.
25 IN THE COURT OF SESSIONS FOR GR.
BOMBAY SESSIONS CASE NO.
816 OF 2015 The State of Maharashtra (At the instance of Matunga Police Station,Mumbai, C.R.No.
254/2015) .. Complainant.
Versus Saed Ulhaq Meharjan Shaikh Age 30 years, Occupation: Wadikam, Laxminarayan Lane footpath, Kabutarkhana, Matunga, Mumbai 19.
..
Accused.
APP Mr. More, for the State.
Advocate Anand Singh, for the Accused Coram : A.J.Patangankar, Addl.
Sessions Judge, (C.R.
No.30) Dated : 21.04.2017.
..2..
JUDGMENT ( Delivered on 21.04.2017 )
----------------------------------------------------------------------------------------------------1. Accused is prosecuted for the offences punishable u/s. 302 of IPC.
2. Brief facts of the case of the prosecution are as under : Nikhil Sunil Bonde PSI filed report that on 16.01.2015 at about 7.15 a.m. he received information from ASI Suryvanshi that a person is found lying on footpath who is unconscious. Immediately, Mr. Bonde intimated this fact to API Jadhav and visited the spot. The unconscious person was referred to Sion hospital and Doctor declared him as dead. Inquest panchnama, spot panchnama were prepared, statements of witnesses were recorded and the entry was taken as “Apamritu” no. 3/15 u/s. 174 of Cr.P.C. At the instance of statements of the witnesses, search of relatives of that deceased was taken and found that one Ramchandra Bhikaji Sawant was the father of deceased and name of deceased was Sachin @ Banti Ramchandra Sawant, age 32 years. Post Morten report dated 11.06.2015 received in which the cause of death is mentioned as “Shock following craniocerebral injury following blunt impact (unnatural)”. M.O. expressed opinion that “Injuries mentioned in PM reports can be caused by an assault from hard and blunt object”. Therefore, Mr. Bonde lodged report that due to blow of hard and blunt object given on the head of deceased, by unknown person caused his death of deceased.
3. Matunga police station registered the FIR bearing crime no. 254/2015, for the offences punishable us/ 302 of IPC. I.O. made investigation, drew spot panchnama and collected the blood found on ..3.. the spot and soil mixed with blood in two bottles, the blanket having blood stains, the plastic chappal and a big piece of cement, found on the spot. I.O. drew memorandum panchnama and also panchanama in respect of recovery of weapon, at the instance of accused. According to prosecution, accused handed over a bamboo which was seized in the presence of panchas, thereafter the identification parade was held and the witness identified the accused in the jail. After completion of investigation and receipt of report from Chemical Analysisor I.O. filed chargesheet in the Trial Court. The Ld. Metropolitan Magistrate committed the case to this Court.
4. Accused produced before the Court. My Ld. Predecessor framed the charge against the accused u/s. 302 of IPC below Ex. 3, read over and explained to the accused in vernacular to which he pleaded not guilty and claimed to be tried. His defence is of total denial.
5. Prosecution has examined total 6 witnesses and closed its evidence. I recorded 313 statement of the accused and heard both the sides.
6. Following points that arise for my determination and my findings thereon are as under, for the reasons given below: POINTS FINDINGS
1. Whether prosecution has proved that on In the negative. 15.01.2015 since 11.30 p.m. to 7.15 a.m. of 16.01.2016, near gate no. 3 Don Bosco School Nathalal Parekh Road, Matunga (East), Mumbai 19, ..4.. the accused assaulted to Sachin @ Banty Ramchandra Sawant by wooden stick on his head with the intention of causing his death and the bodily injury intended to inflicted was sufficient in the ordinary course of nature to cause his death as alleged ?
2. What Order ? As per final order. REASONS AS TO POINTS NO. 1 :
7. In order to bring home the guilt of the accused, prosecution has examined PW 1 Nikhil Sunil Bonde PSI. He deposed that on 16.01.2015 at about 7.15 a.m. ASI Suryavanshi intimated him that one injured was lying on the spot i.e. Don Bosco School, Gate No. 3 at a Pavement and blood was oozing from his nose. Thus, first informant narrated the incidence which he heard and saw, as mentioned in the FIR. According to him, he referred the injured to Sion Hospital and the concerned medical officer declared the injured as dead. Thereafter, he prepared inquest panchnama Ex. 9, made inquiry of his relatives. Thereafter, on 17.01.2015 father of deceased was found and PW1 Nikhil recorded statement of father of deceased and dead body was handed over to him and lodged report at Ex. 10. In the cross examination, he deposed that he did not mention the first information, in station diary. If his evidence is seen it appears that he came on the spot when he was informed that one person is lying and blood is oozing from his nose. His evidence is material to the extend of filing of first information report only. ..5..
8. Prosecution has examined PW 2 Dinesh Suresh Hirave Ex. 11. He deposed that he was called by Yadav police officer in the police station on 21.06.2015. Yadav took him to room where the accused was present, who disclosed his name as Rais Shaikh. According to this witness, accused told the panchas that he would disclose the bamboo and the place of incident. Accordingly, memorandum was made. As per his evidence, panchas went on the spot at the instance of accused. The accused pointed out place of incidence. He also shown place where the bamboo was kept. Thus, this witness proved the memorandum panchnama Ex. 12 and recovery panchnama Ex. 13. However in the cross examination, this witness says that on the date of recording of his evidence, police have explained him the said panchnama. It is further seen from the cross examination of this witness that no statement was recorded in his presence and no statement was recorded at the spot of incident. Thus, evidence of this witness is inconsistent, hence not helpful to prosecution.
9. Prosecution has examined PW 3 Pradeep Hari Chavarkar Ex.
14. He was Nayab Tahsildar. According to him, on 08.07.2015 he was informed that identification parade has to be made. Therefore, he reached at Arthur Road Jail on 13.07.2015. He gave all the details as to how he took steps regarding identification parade. According to him, witness told his name as Dilip Gangaram Chavare and Nayab Tahsildar told the witness to verify all the persons standing thereon and to identify the real accused by touching him. According to him, this witness verified the accused and touched on the shoulder of accused. Accordingly, Nayab Tahsildar proved the panchnama Ex. 15. ..6.. Weightage could have been given to the evidence of this witness if there would have been evidence of the concerned witness who actually identify the accused at the time of identification parade in the jail. But prosecution did not examine the said Dilip Gangaram Chavare, who was the eye witness of the incidence, as per prosecution story. According to the Ld. APP, there was only one eye witness namely Dilip Gangaram Chavare who is now nomore. Therefore, I find no propriety in giving weightage to the evidence of PW3 Pradeep.
10. Prosecution has examined PW 4 Dr. Rajesh Chandrakant Dere Ex. 16. According to him, he made PostMortem of the deceased. According to him, due to external and internal injuries the death is caused. As stated earlier there is no eye witness of the incidence nor any circumstantial evidence is there before the Court to complete the chain or to come to the conclusion that accused has committed the offence.
11. Prosecution has examined PW 5 Pradeepkumar Munshi Shah, who is Mechanic . According to him, on 16.01.2015 at 9.00 a.m. he was called at the place of incidence and he saw the blood was spread on the ground. According to him, one blanket and one cement brick was there and footwear also lying on the spot. According to this witness, police collected the blood and kept in the bottle. He proved the panchnama Ex. 19, but there is no other evidence to come to the conclusion that present accused has committed any offence.
12. Prosecution has examined PW 6 API Govind Jadhav. According to him, as per call from PSI Bonde at about 7.15 a.m. he came on the spot. ..7.. He narrated the same facts as told by PW 1 Nikhil Bonde. He tried to prove the memorandum panchnama Ex. 12 as well as seizure panchanam. It is pertinent to note here that in the cross examination this witness says that after about 6 months from the date of incident one witness told him and shown him the accused. On this background, so also there is nothing on record to connect that accused has committed any offence. There is no eye witness before the Court nor having circumstantial evidence to connect the accused with the crime. In such circumstances, I find no alternative except to say that prosecution has miserably failed to prove the guilt of the accused, beyond all reasonable doubts. Therefore, accused is not found guilty for the offence punishable u/s. 302 of IPC. Hence, I answer Point no. 1 in the negative and proceed to pass the following order : ORDER
1. Accused namely Saed Ulhaq Meharjan Shaikh is hereby acquitted for the offence punishable u/s. 302 of Indian Penal Code.
2. He is in jail, he be released forthwith and set at liberty, if not required in any other crime.
3. Muddemal property articles i.e. Cotton swob, one blanket, one slipper pair, one jeans pant, one full shirt, 2 plastic bottles and one wooden stick (Bamboo)being worthless be destroyed, after appeal period is over. ..8..
4. Accused to comply the provision of section 437A of the Code of Criminal Procedure, i.e. to furnish P.R.Bond of Rs. 25,000/ (Rupees Twenty Five Thousand only) with one or two sureties of like amount, within 4 weeks (four weeks) from the date of this order. ( Dictated and pronounced in open Court) ( A.J.Patangankar) Additional Sessions Judge, 21.04.2017 City Civil Court, Gr. Mumbai Date of Dictation : 21.04.2017 Date of Transcription : 26.04.2017 Date of signature : 03.05.2017 “Certified to be true and correct copy of the Original signed Judgment/Order.” Upload Date and Time : 04.05.2017 at 11.10 a.m. Name of Stenographer : Mrs. P.R.Vengurlekar Name of the Judge (with Court room No.): Shri A.J.Patangankar, C.R.No.30. Date of Pronouncement of judgment /Order: 21.04.2017 Judgment/Order signed by the P.O. on : 04.05.2017 Judgment/Order uploaded on : 04.05.2017
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Presented on : 12.10.2015 Registered on : 07.10.2015 Decided on : 21.04.2017 Duration : Y M D 01 06 14 Exh.
No.
25 IN THE COURT OF SESSIONS FOR GR.
BOMBAY SESSIONS CASE NO.
816 OF 2015 The State of Maharashtra (At the instance of Matunga Police Station,Mumbai, C.R.No.
254/2015) .. Complainant.
Versus Saed Ulhaq Meharjan Shaikh Age 30 years, Occupation: Wadikam, Laxminarayan Lane footpath, Kabutarkhana, Matunga, Mumbai 19.
..
Accused.
APP Mr. More, for the State.
Advocate Anand Singh, for the Accused Coram : A.J.Patangankar, Addl.
Sessions Judge, (C.R.
No.30) Dated : 21.04.2017.
..2..
JUDGMENT ( Delivered on 21.04.2017 )
----------------------------------------------------------------------------------------------------1. Accused is prosecuted for the offences punishable u/s. 302 of IPC.
2. Brief facts of the case of the prosecution are as under : Nikhil Sunil Bonde PSI filed report that on 16.01.2015 at about 7.15 a.m. he received information from ASI Suryvanshi that a person is found lying on footpath who is unconscious. Immediately, Mr. Bonde intimated this fact to API Jadhav and visited the spot. The unconscious person was referred to Sion hospital and Doctor declared him as dead. Inquest panchnama, spot panchnama were prepared, statements of witnesses were recorded and the entry was taken as “Apamritu” no. 3/15 u/s. 174 of Cr.P.C. At the instance of statements of the witnesses, search of relatives of that deceased was taken and found that one Ramchandra Bhikaji Sawant was the father of deceased and name of deceased was Sachin @ Banti Ramchandra Sawant, age 32 years. Post Morten report dated 11.06.2015 received in which the cause of death is mentioned as “Shock following craniocerebral injury following blunt impact (unnatural)”. M.O. expressed opinion that “Injuries mentioned in PM reports can be caused by an assault from hard and blunt object”. Therefore, Mr. Bonde lodged report that due to blow of hard and blunt object given on the head of deceased, by unknown person caused his death of deceased.
3. Matunga police station registered the FIR bearing crime no. 254/2015, for the offences punishable us/ 302 of IPC. I.O. made investigation, drew spot panchnama and collected the blood found on ..3.. the spot and soil mixed with blood in two bottles, the blanket having blood stains, the plastic chappal and a big piece of cement, found on the spot. I.O. drew memorandum panchnama and also panchanama in respect of recovery of weapon, at the instance of accused. According to prosecution, accused handed over a bamboo which was seized in the presence of panchas, thereafter the identification parade was held and the witness identified the accused in the jail. After completion of investigation and receipt of report from Chemical Analysisor I.O. filed chargesheet in the Trial Court. The Ld. Metropolitan Magistrate committed the case to this Court.
4. Accused produced before the Court. My Ld. Predecessor framed the charge against the accused u/s. 302 of IPC below Ex. 3, read over and explained to the accused in vernacular to which he pleaded not guilty and claimed to be tried. His defence is of total denial.
5. Prosecution has examined total 6 witnesses and closed its evidence. I recorded 313 statement of the accused and heard both the sides.
6. Following points that arise for my determination and my findings thereon are as under, for the reasons given below: POINTS FINDINGS
1. Whether prosecution has proved that on In the negative. 15.01.2015 since 11.30 p.m. to 7.15 a.m. of 16.01.2016, near gate no. 3 Don Bosco School Nathalal Parekh Road, Matunga (East), Mumbai 19, ..4.. the accused assaulted to Sachin @ Banty Ramchandra Sawant by wooden stick on his head with the intention of causing his death and the bodily injury intended to inflicted was sufficient in the ordinary course of nature to cause his death as alleged ?
2. What Order ? As per final order. REASONS AS TO POINTS NO. 1 :
7. In order to bring home the guilt of the accused, prosecution has examined PW 1 Nikhil Sunil Bonde PSI. He deposed that on 16.01.2015 at about 7.15 a.m. ASI Suryavanshi intimated him that one injured was lying on the spot i.e. Don Bosco School, Gate No. 3 at a Pavement and blood was oozing from his nose. Thus, first informant narrated the incidence which he heard and saw, as mentioned in the FIR. According to him, he referred the injured to Sion Hospital and the concerned medical officer declared the injured as dead. Thereafter, he prepared inquest panchnama Ex. 9, made inquiry of his relatives. Thereafter, on 17.01.2015 father of deceased was found and PW1 Nikhil recorded statement of father of deceased and dead body was handed over to him and lodged report at Ex. 10. In the cross examination, he deposed that he did not mention the first information, in station diary. If his evidence is seen it appears that he came on the spot when he was informed that one person is lying and blood is oozing from his nose. His evidence is material to the extend of filing of first information report only. ..5..
8. Prosecution has examined PW 2 Dinesh Suresh Hirave Ex. 11. He deposed that he was called by Yadav police officer in the police station on 21.06.2015. Yadav took him to room where the accused was present, who disclosed his name as Rais Shaikh. According to this witness, accused told the panchas that he would disclose the bamboo and the place of incident. Accordingly, memorandum was made. As per his evidence, panchas went on the spot at the instance of accused. The accused pointed out place of incidence. He also shown place where the bamboo was kept. Thus, this witness proved the memorandum panchnama Ex. 12 and recovery panchnama Ex. 13. However in the cross examination, this witness says that on the date of recording of his evidence, police have explained him the said panchnama. It is further seen from the cross examination of this witness that no statement was recorded in his presence and no statement was recorded at the spot of incident. Thus, evidence of this witness is inconsistent, hence not helpful to prosecution.
9. Prosecution has examined PW 3 Pradeep Hari Chavarkar Ex.
14. He was Nayab Tahsildar. According to him, on 08.07.2015 he was informed that identification parade has to be made. Therefore, he reached at Arthur Road Jail on 13.07.2015. He gave all the details as to how he took steps regarding identification parade. According to him, witness told his name as Dilip Gangaram Chavare and Nayab Tahsildar told the witness to verify all the persons standing thereon and to identify the real accused by touching him. According to him, this witness verified the accused and touched on the shoulder of accused. Accordingly, Nayab Tahsildar proved the panchnama Ex. 15. ..6.. Weightage could have been given to the evidence of this witness if there would have been evidence of the concerned witness who actually identify the accused at the time of identification parade in the jail. But prosecution did not examine the said Dilip Gangaram Chavare, who was the eye witness of the incidence, as per prosecution story. According to the Ld. APP, there was only one eye witness namely Dilip Gangaram Chavare who is now nomore. Therefore, I find no propriety in giving weightage to the evidence of PW3 Pradeep.
10. Prosecution has examined PW 4 Dr. Rajesh Chandrakant Dere Ex. 16. According to him, he made PostMortem of the deceased. According to him, due to external and internal injuries the death is caused. As stated earlier there is no eye witness of the incidence nor any circumstantial evidence is there before the Court to complete the chain or to come to the conclusion that accused has committed the offence.
11. Prosecution has examined PW 5 Pradeepkumar Munshi Shah, who is Mechanic . According to him, on 16.01.2015 at 9.00 a.m. he was called at the place of incidence and he saw the blood was spread on the ground. According to him, one blanket and one cement brick was there and footwear also lying on the spot. According to this witness, police collected the blood and kept in the bottle. He proved the panchnama Ex. 19, but there is no other evidence to come to the conclusion that present accused has committed any offence.
12. Prosecution has examined PW 6 API Govind Jadhav. According to him, as per call from PSI Bonde at about 7.15 a.m. he came on the spot. ..7.. He narrated the same facts as told by PW 1 Nikhil Bonde. He tried to prove the memorandum panchnama Ex. 12 as well as seizure panchanam. It is pertinent to note here that in the cross examination this witness says that after about 6 months from the date of incident one witness told him and shown him the accused. On this background, so also there is nothing on record to connect that accused has committed any offence. There is no eye witness before the Court nor having circumstantial evidence to connect the accused with the crime. In such circumstances, I find no alternative except to say that prosecution has miserably failed to prove the guilt of the accused, beyond all reasonable doubts. Therefore, accused is not found guilty for the offence punishable u/s. 302 of IPC. Hence, I answer Point no. 1 in the negative and proceed to pass the following order : ORDER
1. Accused namely Saed Ulhaq Meharjan Shaikh is hereby acquitted for the offence punishable u/s. 302 of Indian Penal Code.
2. He is in jail, he be released forthwith and set at liberty, if not required in any other crime.
3. Muddemal property articles i.e. Cotton swob, one blanket, one slipper pair, one jeans pant, one full shirt, 2 plastic bottles and one wooden stick (Bamboo)being worthless be destroyed, after appeal period is over. ..8..
4. Accused to comply the provision of section 437A of the Code of Criminal Procedure, i.e. to furnish P.R.Bond of Rs. 25,000/ (Rupees Twenty Five Thousand only) with one or two sureties of like amount, within 4 weeks (four weeks) from the date of this order. ( Dictated and pronounced in open Court) ( A.J.Patangankar) Additional Sessions Judge, 21.04.2017 City Civil Court, Gr. Mumbai Date of Dictation : 21.04.2017 Date of Transcription : 26.04.2017 Date of signature : 03.05.2017 “Certified to be true and correct copy of the Original signed Judgment/Order.” Upload Date and Time : 04.05.2017 at 11.10 a.m. Name of Stenographer : Mrs. P.R.Vengurlekar Name of the Judge (with Court room No.): Shri A.J.Patangankar, C.R.No.30. Date of Pronouncement of judgment /Order: 21.04.2017 Judgment/Order signed by the P.O. on : 04.05.2017 Judgment/Order uploaded on : 04.05.2017
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