Presented on 12.12.2015 Registered on 12.12.2015 Decided on 23.09.2019 Duration Yrs.
M. Days 03 09 11 CNR No.
MHCC02-017474-2015 Exh.
IN THE COURT OF SESSIONS FOR GR.BOMBAY AT MUMBAI.
SESSIONS CASE NO.961 OF 2015 The State (at the instance of Vikhroli Police Station, C.R.No.256 of 2015,CC.No.896/PW/2015) ...Complainant V/s.
1. Sani Suresh Kedare Age : 29 years Occp : Service. R/O : Babu Kukute Compound, Chawl No.5/01, Hairyali Village, Tagore Nagar, Group No.02, Vikhroli (E), Mumbai400
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2. Roshan Ulhas Kanchan Age : 31 years. Occp : Service. R/O : Sonawane Chawl, Ganesh Marg, Hariyali Village, Tagore Nagar, Group No.2, Vikhroli (E), Mumbai400 083.
3. Mayur Bhawanishankar Oza Age : 27 years. Occp : Service. R/O : Jaywant Complex, C Wing, 4th floor, Plot No.403, Sai Bab Temple, Sabe Road, Diva (E), Mumbai. .. j/2.. Sessions Case No.961/2015
4. Nikhil Bapu Waghmare Age : 30 years. Occp : Service. R/O : Bolkesh Babu, Chawl Room No.2, Ganesh Marg, Hariyali Village, Tagore Nagar, Behind B.T. Bakery, Group No.2, Vikhroli (E), Mumbai 400 083.
5. Sandip Bastiram Karad Age : 31 years. Occp : Service. R/O : 4/4 Kurkute Compound, Ganesh Marg, Hariyali Village, Tagore Nagar, Group No.2, Vikhroli (E), Mumbai 400 083. ...Accused Appearances: Ld.A.P.P. Mr. D.M. Lade for the State. Ld. Adv. Mr. Nitin Sejpal for the accused No.1. Ld. Adv. Mr. Nitin Kamble for the accused Nos.2 to 5. CORAM : HIS HONOUR ADDL.SESSIONS JUDGE SHRI ABHIJEET A. NANDGAONKAR (C.R.No.30) DATED : 23rd September,2019
JUDGMENT (Pronounced in Open Court) Accused Nos.1 to 5 before the Court are charged for the offence punishable under Section 302 r/w 34 of Indian Penal Code.
2. In short, it is the case of prosecution that informant Sachin Baliram Shetey and Sachin Dandade were friend. Sachin Dandade introduced victim Shivanand Dudhbhate to the informant. On 06.08.2015 informant and Sachin Shetey decided to drink the liquor. Accordingly, at about 08.00 hours informant reached at Shraddha Bar, .. j/3.. Sessions Case No.961/2015 Vikhroli. He saw that Sachin Dandade and Shivanand Dudhbhat were already seating there and consumed liquor. Informant joined them. At about 09.55 hours Shivanand Dudhbhate went outside bar for taking cigarette. After some time waiter of the bar informed them that some persons beat their friend Shivanand. When informant and his friend Sachin came out of the bar they saw one assailant caught Shivanand's neck from behind and other four assailants beat Shivanand by fist and kick blows. When informant and his friend Sachin forwarded to rescue Shivanand, the assailants ran away. At that time Shivanand was unconscious. He was shifted to Mahatma Phue Hospital, Vikhroli. However, after examination Shivanand declared dead by the doctor. Therefore, informant lodged report with Vikhroli Police Station against unknown persons vide C.R.No.256 of 2015 for the offence punishable under Section 302 t/w 34 of IPC.
3. After registration of crime, police machinery came into motion. They arrested the accused, prepared spot panchanama and arrest panchanama. Police have also recorded the statements of witnesses. After completion of investigation charge sheeted the accused learned Metropolitan Magistrate, 50th Court, Vikhroli, Mumbai. As the offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions, learned Metropolitan Magistrate committed the case to the Court of Sessions vide its order dt.01.12.2015.
4. After receipt of charge sheet it has been numbered as Sessions Case No.961 of 2015. Accused appeared before this Court. My erstwhile Learned Predecessor of this Court on 05.10.2016 framed charge at Exh.23 against accused Nos.1 to 5. The contents of the charge were read over and explained to the accused. Their plea were .. j/4.. Sessions Case No.961/2015 recorded at Exh.24 to 28. Accused pleaded not guilty and claimed to be tried. The defence of the accused is total denial and false implication in the crime.
5. After completing formalities under Section 294 of Cr PC, prosecution examined eight witnesses. They were crossexamined by the witnesses. Learned A.P.P filed pursis at Exh.94 and closed their evidence. Thereafter, statements of the accused were recorded under Section 313 of Cr PC. All incriminating circumstances were put to them. None of the accused have examined witness in their defence and claimed to be acquitted.
6. From the case of prosecution and defence of the accused, following points arise for my determination. I have record my findings against each of them for the reasons as to follow : POINTS FINDINGS 1 Whether prosecution proves that IN NEGATIVE accused Nos.1 to 5 on 06.08.2015 at about 21.55 to 22.05 hours at Shraddha Bar, near Vikhroli railway station, Vikhroli (E), Mumbai400 083, in furtherance of their common intention, deceased Shivanand pushed one of them, committed murder of Shivanand Tukaram Dudhbhate, by strangulating his neck and beat him with fist and kick blows on his person and thereby committed an offfence punishable under Section 302 r/w 34 of Indian Penal Code ? .. j/5.. Sessions Case No.961/2015 2 What Order ? Accused no. 1 to 5 acquitted. REASONS AS TO POINT NOS.1 TO 2 :
7. In order to prove the case, prosecution has examined in all eight witnesses. PW1 Sachin Shetey examined at Exh.32. He is the informant and was with deceased in Shraddha Bar. He deposed that he received call on 06.08.2015 from Sachin. When he reached at bar in front of Vikhroli station, he saw that Sachin and Shivanand, were there. After taking drink Shivanand went out of hotel for cigarette and within five minutes waiter told them that there was quarrel of Shivanand with somebody out of hotel. Sachin paid the bill and came out of the hotel. He saw quarrel of three persons was going on with Shivanand. There was mob. They went near Shivanand. He has pacified the mob. He saw Shivanand was in unconscious condition and thereafter, with the help of persons they shifted Shivanand to the hospital.
8. Informant has not seen personally the scene of assault. He resiles his earlier statement, therefore, he was declared hostile and subjected to crossexamination by the learned A.P.P. But nothing was brought in his crossexamination. He admitted that police have shown the accused by disclosing their names as assailants. Portion marked A and B came to be put forth to him. But he denied that was stated by him to the police. Therefore, his testimony is not reliable and acceptable.
9. PW2 Sachin Bapu Dandade examined at Exh.34. He deposed that he has phoned Shivanand to call him for consuming liquor. He alone went to Shraddha Bar and at 07.00 p.m. Shivanand came there. Shivanand went out of bar for smoking cigarette. They were inside the .. j/6.. Sessions Case No.961/2015 hotel. He did not know what happened out side. When he came out of hotel he found Shivanand was lying in injured condition. They shifted Shivanand to the hospital, where he was declared dead.
10. Also prosecution examine PW4 Nagraj Rajanna Nayak at Exh.44 and PW5 Devraj Basraj Nadgeir at Exh.45. Prosecution examined them as daily drinker at Shraddha Bar. But both were unable to state in respect of the incident. They were also declared hostile and unable to connect the accused with the crime. PW7 Mr.Satish Shetty examined at Exh.48. He is Manager of Shraddha Bar. He has also not supported the case of prosecution. Therefore, he was declared hostile. Even he was denied the portion marked in his statement. He only stated that incident was happened outside the bar. He only deposed that some dispute took place out of the bar, about which police recorded his statement.
11. All these witnesses have not supported the prosecution and also declared hostile. But nothing was brought in his crossexamination. He also denied the portion marked A and B in their statement. Therefore, testimony of these witnesses are not reliable and trustworthy and acceptable.
12. PW3 Dr.Shivaji Vishnu Kachare examined at Exh.42. He deposed that he was attached to Rajawadi Hospital. On 07.08.2015 dead body of Shivanand Dudhbhate was brought to the hospital by police. He noticed internal injury in the brain. He reported cause of death was subarachnoid hemorrhage with multiple injuries with alcohol consumption (unnatural). He prepared postmortem report at Exh.43. There is no crossexamination offered by the defence, which .. j/7.. Sessions Case No.961/2015 ultimately prove that Shivanand died due to subarachnoid hemorrhage with multiple injuries and alcohol consumption.
13. PW6 Mrs. Sanjivani Rupnawar, PSI deposed that on 06.08.2015 she was working as night duty Station House Officer. She received the information about one dead person admitted in the hospital. She registered ADR No.63 of 2015. Thereafter, she visited the hospital, prepared inquest panchanama vide Exh.36 and report of informant at Exh.33 and registered C.R.No.256 of 2015 She sent dead body for postmortem. She also proved the portion marked in the statement of informant at Exh.47. She also visited the spot and drew spot panchanama at Exh.35. She seized clothes of deceased under panchanama at Exh.37 and forwarded the clothes to C.A. For analysis. Thereafter, she handed over the case diary and papers to PI Mr.Thanage for further investigation.
14. The only suggestion was put in her crossexamination that FIR was not recorded as per the information of the informant. But this is just a formal question, as informant himself not supported the case of prosecution and was declared hostile. Hence, testimony of Station House Officer Mrs. Sanjivani Rupnawar cannot be accepted being formal in nature.
15. PW8 Mr.Mahadev Govind Jadhav, PI was the Investigating Officer. After transfer of investigation to him he formed two teams for arrest of the accused. He arrested the accused Nos.1 to 5 under arrest panchanams. He obtained CCTV footage from Shraddha Bar in pendrive. He proved the forwarding letter addressed to C.A. for examination at Exh.83,84 and C.A. report placed on record at Exh.85 to 93. .. j/8.. Sessions Case No.961/2015
16. In crossexamination PW8 except denial nothing is brought in his testimony in respect of investigation. However, investigation of this Investigating Officer pertaining to obtaining CCTV footage from Shraddha Bar not corroborated by the other witnesses. There is no other witness examined by prosecution to … the claim of accused.
17. While appreciating the above evidence adduced by the prosecution, it is clear that prosecution has miserably failed to bring home guilt of the accused Nos.1 to 5. None of the witnesses have stated that they had seen the accused Nos.1 to 5 while assaulting the deceased Shivanand. Hence, prosecution has failed to adduce direct evidence about the incident when the incident of assault took place in front of Shraddha bar at public place. The place at the said incident was happened at about 21.55 to 22.05 hours in front of Shraddha Bar and near Vikhroli local railway station. Therefore, it is highly probable many pedestrian or passerby have seen the incident. But prosecution have failed to examine such independent witness to prove their case and to throw light on the actual incident.
18. Initially FIR was lodged against the unknown persons. Therefore, it is the duty of Investigating Officer to conduct test identification parade after arresting the accused Nos.1 to 5. On the contrary it has come in the crossexamination of informant conducted by learned A.P.P that he identified the accused as police have shown him by disclosing their names being the assailants. The test identification parade is not the substantive piece of evidence. But the purpose of conducting identification parade is to strengthen the prosecution case and to satisfy the Investigating agency that their investigation is progress in the right direction. Therefore, not showing the accused to the witness before test identification parade vitiate the case of prosecution. .. j/9.. Sessions Case No.961/2015
19. The PW3, Medical Officer has examined by the prosecution to prove nexus of the injuries to the accused Nos.1 to 5. This witness has stated cause of death was subarachnoid hemorrhage with multiple injuries with alcohol consumption (unnautral). However, prosecution has failed to link these injuries with the alleged assault committed by the accused Nos.1 to 5. The learned counsel for the accused Nos.1 to 5 have submitted that admittedly deceased had consumed liquor, therefore, he might have fallen down on road or footpath in an inebriate condition and cause the injuries to his brain which succumbed to his death. This theory can be acceptable as no conclusive evidence is brought by the prosecution to prove the case of homicidal death against the accused Nos.1 to 5 or their inaction to commit murder of deceased Shivanand.
20. In the form of corroborative evidence Investigating Officer has collected CCTV footage of the incident. However, he has not taken care while retrieving the said footage from the electronic device by adopting the proper procedure as laid down in I.T. Act. The prosecution has also failed to procure the certificate under Section 65B of IT Act to prove such electronic evidence. Therefore, this CCTV footage is also not helpful to the prosecution to prove its case in the absence of proper procedure and to test and accept the authenticity of the electronic evidence i.e CCTV footage.
21. As per case of the prosecution on only point of giving dash the said incident happened which resulted in death of Shivanand. When such incident was happened on trifle issue, in which life of the man lost, it shows sensibility of the society is lost and it is really cause alarm to the health of the entire society. .. j/10.. Sessions Case No.961/2015
22. From the above discussion, I hold that prosecution has miserably failed to prove that accused Nos.1 to 5 have committed murder of the deceased Shivanand either by direct act or from circumstantial evidence which can be gathered the intentional act of the accused Nos.1 to 5. Therefore, I answer point No.1 in the negative and acquit all the accused from the charges levelled against them in C.R.No.256 of 2015 registered with Vikhroli Police Station by giving answer to point No.2 accordingly. Hence, the order : O R D E R
1. Accused No.1. Sani Suresh Kedare, No.2. Roshan Ulhas Kanchan, No.3. Mayur Bhawanishankar Oza, No.4. Nikhil Bapu Waghmare and No.5. Sandip Bastiram Karad are hereby acquitted under Section 235 (1) of Code of Criminal Procedure for the offence punishable under Sections 302 r/w 34 of Indian Penal Code.
2. Bail bonds of accused Nos.1 to 5 stand cancelled.
3. i) Mudemaal articles – ArtA to Art.Z, except Art.K : Pen Drive; being worthless, be destroyed as per rules, after appeal period is over. ii) Art.K : Pen Drive be returned to Vikhroli Police Station as per rules, after appeal period is over.
4. Accused No.1. Sani Suresh Kedare, No.2. Roshan Ulhas Kanchan, No.3. Mayur Bhawanishankar Oza, No.4. Nikhil Bapu Waghmare and No.5. Sandip Bastiram Karad are directed to execute fresh PR bond of Rs.10,000/ each with old sureties in like amount each .. j/11.. Sessions Case No.961/2015 for the period of six months, as mandated under Section 437A of Code of Criminal Procedure. ( ABHIJEET A. NANDGAONKAR ) Additional Sessions Judge, (C.R.No.30) Dt.: 23/09/2019 Gr.Bombay, at Mumbai. Dictated on : 23.09.2019 Transcribed on : 25.09.2019 Signed on : 25.09.2019 kps/ .. j/12.. Sessions Case No.961/2015 “CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER” 26.09.2019 at 05.45 p.m (KISHOR PRAKASH SHERWADE) UPLOAD DATE AND TIME NAME OF STENOGRAPHER Name of the Judge HHJ SHRI A.A. NANDGAONKAR (COURT ROOM NO.30) Date of pronouncement of judgment/order 23.09.2019 Judgment/order signed by P.O. on 26.09.2019 Judgment/order uploaded on 26.09.2019
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M. Days 03 09 11 CNR No.
MHCC02-017474-2015 Exh.
IN THE COURT OF SESSIONS FOR GR.BOMBAY AT MUMBAI.
SESSIONS CASE NO.961 OF 2015 The State (at the instance of Vikhroli Police Station, C.R.No.256 of 2015,CC.No.896/PW/2015) ...Complainant V/s.
1. Sani Suresh Kedare Age : 29 years Occp : Service. R/O : Babu Kukute Compound, Chawl No.5/01, Hairyali Village, Tagore Nagar, Group No.02, Vikhroli (E), Mumbai400
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2. Roshan Ulhas Kanchan Age : 31 years. Occp : Service. R/O : Sonawane Chawl, Ganesh Marg, Hariyali Village, Tagore Nagar, Group No.2, Vikhroli (E), Mumbai400 083.
3. Mayur Bhawanishankar Oza Age : 27 years. Occp : Service. R/O : Jaywant Complex, C Wing, 4th floor, Plot No.403, Sai Bab Temple, Sabe Road, Diva (E), Mumbai. .. j/2.. Sessions Case No.961/2015
4. Nikhil Bapu Waghmare Age : 30 years. Occp : Service. R/O : Bolkesh Babu, Chawl Room No.2, Ganesh Marg, Hariyali Village, Tagore Nagar, Behind B.T. Bakery, Group No.2, Vikhroli (E), Mumbai 400 083.
5. Sandip Bastiram Karad Age : 31 years. Occp : Service. R/O : 4/4 Kurkute Compound, Ganesh Marg, Hariyali Village, Tagore Nagar, Group No.2, Vikhroli (E), Mumbai 400 083. ...Accused Appearances: Ld.A.P.P. Mr. D.M. Lade for the State. Ld. Adv. Mr. Nitin Sejpal for the accused No.1. Ld. Adv. Mr. Nitin Kamble for the accused Nos.2 to 5. CORAM : HIS HONOUR ADDL.SESSIONS JUDGE SHRI ABHIJEET A. NANDGAONKAR (C.R.No.30) DATED : 23rd September,2019
JUDGMENT (Pronounced in Open Court) Accused Nos.1 to 5 before the Court are charged for the offence punishable under Section 302 r/w 34 of Indian Penal Code.
2. In short, it is the case of prosecution that informant Sachin Baliram Shetey and Sachin Dandade were friend. Sachin Dandade introduced victim Shivanand Dudhbhate to the informant. On 06.08.2015 informant and Sachin Shetey decided to drink the liquor. Accordingly, at about 08.00 hours informant reached at Shraddha Bar, .. j/3.. Sessions Case No.961/2015 Vikhroli. He saw that Sachin Dandade and Shivanand Dudhbhat were already seating there and consumed liquor. Informant joined them. At about 09.55 hours Shivanand Dudhbhate went outside bar for taking cigarette. After some time waiter of the bar informed them that some persons beat their friend Shivanand. When informant and his friend Sachin came out of the bar they saw one assailant caught Shivanand's neck from behind and other four assailants beat Shivanand by fist and kick blows. When informant and his friend Sachin forwarded to rescue Shivanand, the assailants ran away. At that time Shivanand was unconscious. He was shifted to Mahatma Phue Hospital, Vikhroli. However, after examination Shivanand declared dead by the doctor. Therefore, informant lodged report with Vikhroli Police Station against unknown persons vide C.R.No.256 of 2015 for the offence punishable under Section 302 t/w 34 of IPC.
3. After registration of crime, police machinery came into motion. They arrested the accused, prepared spot panchanama and arrest panchanama. Police have also recorded the statements of witnesses. After completion of investigation charge sheeted the accused learned Metropolitan Magistrate, 50th Court, Vikhroli, Mumbai. As the offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions, learned Metropolitan Magistrate committed the case to the Court of Sessions vide its order dt.01.12.2015.
4. After receipt of charge sheet it has been numbered as Sessions Case No.961 of 2015. Accused appeared before this Court. My erstwhile Learned Predecessor of this Court on 05.10.2016 framed charge at Exh.23 against accused Nos.1 to 5. The contents of the charge were read over and explained to the accused. Their plea were .. j/4.. Sessions Case No.961/2015 recorded at Exh.24 to 28. Accused pleaded not guilty and claimed to be tried. The defence of the accused is total denial and false implication in the crime.
5. After completing formalities under Section 294 of Cr PC, prosecution examined eight witnesses. They were crossexamined by the witnesses. Learned A.P.P filed pursis at Exh.94 and closed their evidence. Thereafter, statements of the accused were recorded under Section 313 of Cr PC. All incriminating circumstances were put to them. None of the accused have examined witness in their defence and claimed to be acquitted.
6. From the case of prosecution and defence of the accused, following points arise for my determination. I have record my findings against each of them for the reasons as to follow : POINTS FINDINGS 1 Whether prosecution proves that IN NEGATIVE accused Nos.1 to 5 on 06.08.2015 at about 21.55 to 22.05 hours at Shraddha Bar, near Vikhroli railway station, Vikhroli (E), Mumbai400 083, in furtherance of their common intention, deceased Shivanand pushed one of them, committed murder of Shivanand Tukaram Dudhbhate, by strangulating his neck and beat him with fist and kick blows on his person and thereby committed an offfence punishable under Section 302 r/w 34 of Indian Penal Code ? .. j/5.. Sessions Case No.961/2015 2 What Order ? Accused no. 1 to 5 acquitted. REASONS AS TO POINT NOS.1 TO 2 :
7. In order to prove the case, prosecution has examined in all eight witnesses. PW1 Sachin Shetey examined at Exh.32. He is the informant and was with deceased in Shraddha Bar. He deposed that he received call on 06.08.2015 from Sachin. When he reached at bar in front of Vikhroli station, he saw that Sachin and Shivanand, were there. After taking drink Shivanand went out of hotel for cigarette and within five minutes waiter told them that there was quarrel of Shivanand with somebody out of hotel. Sachin paid the bill and came out of the hotel. He saw quarrel of three persons was going on with Shivanand. There was mob. They went near Shivanand. He has pacified the mob. He saw Shivanand was in unconscious condition and thereafter, with the help of persons they shifted Shivanand to the hospital.
8. Informant has not seen personally the scene of assault. He resiles his earlier statement, therefore, he was declared hostile and subjected to crossexamination by the learned A.P.P. But nothing was brought in his crossexamination. He admitted that police have shown the accused by disclosing their names as assailants. Portion marked A and B came to be put forth to him. But he denied that was stated by him to the police. Therefore, his testimony is not reliable and acceptable.
9. PW2 Sachin Bapu Dandade examined at Exh.34. He deposed that he has phoned Shivanand to call him for consuming liquor. He alone went to Shraddha Bar and at 07.00 p.m. Shivanand came there. Shivanand went out of bar for smoking cigarette. They were inside the .. j/6.. Sessions Case No.961/2015 hotel. He did not know what happened out side. When he came out of hotel he found Shivanand was lying in injured condition. They shifted Shivanand to the hospital, where he was declared dead.
10. Also prosecution examine PW4 Nagraj Rajanna Nayak at Exh.44 and PW5 Devraj Basraj Nadgeir at Exh.45. Prosecution examined them as daily drinker at Shraddha Bar. But both were unable to state in respect of the incident. They were also declared hostile and unable to connect the accused with the crime. PW7 Mr.Satish Shetty examined at Exh.48. He is Manager of Shraddha Bar. He has also not supported the case of prosecution. Therefore, he was declared hostile. Even he was denied the portion marked in his statement. He only stated that incident was happened outside the bar. He only deposed that some dispute took place out of the bar, about which police recorded his statement.
11. All these witnesses have not supported the prosecution and also declared hostile. But nothing was brought in his crossexamination. He also denied the portion marked A and B in their statement. Therefore, testimony of these witnesses are not reliable and trustworthy and acceptable.
12. PW3 Dr.Shivaji Vishnu Kachare examined at Exh.42. He deposed that he was attached to Rajawadi Hospital. On 07.08.2015 dead body of Shivanand Dudhbhate was brought to the hospital by police. He noticed internal injury in the brain. He reported cause of death was subarachnoid hemorrhage with multiple injuries with alcohol consumption (unnatural). He prepared postmortem report at Exh.43. There is no crossexamination offered by the defence, which .. j/7.. Sessions Case No.961/2015 ultimately prove that Shivanand died due to subarachnoid hemorrhage with multiple injuries and alcohol consumption.
13. PW6 Mrs. Sanjivani Rupnawar, PSI deposed that on 06.08.2015 she was working as night duty Station House Officer. She received the information about one dead person admitted in the hospital. She registered ADR No.63 of 2015. Thereafter, she visited the hospital, prepared inquest panchanama vide Exh.36 and report of informant at Exh.33 and registered C.R.No.256 of 2015 She sent dead body for postmortem. She also proved the portion marked in the statement of informant at Exh.47. She also visited the spot and drew spot panchanama at Exh.35. She seized clothes of deceased under panchanama at Exh.37 and forwarded the clothes to C.A. For analysis. Thereafter, she handed over the case diary and papers to PI Mr.Thanage for further investigation.
14. The only suggestion was put in her crossexamination that FIR was not recorded as per the information of the informant. But this is just a formal question, as informant himself not supported the case of prosecution and was declared hostile. Hence, testimony of Station House Officer Mrs. Sanjivani Rupnawar cannot be accepted being formal in nature.
15. PW8 Mr.Mahadev Govind Jadhav, PI was the Investigating Officer. After transfer of investigation to him he formed two teams for arrest of the accused. He arrested the accused Nos.1 to 5 under arrest panchanams. He obtained CCTV footage from Shraddha Bar in pendrive. He proved the forwarding letter addressed to C.A. for examination at Exh.83,84 and C.A. report placed on record at Exh.85 to 93. .. j/8.. Sessions Case No.961/2015
16. In crossexamination PW8 except denial nothing is brought in his testimony in respect of investigation. However, investigation of this Investigating Officer pertaining to obtaining CCTV footage from Shraddha Bar not corroborated by the other witnesses. There is no other witness examined by prosecution to … the claim of accused.
17. While appreciating the above evidence adduced by the prosecution, it is clear that prosecution has miserably failed to bring home guilt of the accused Nos.1 to 5. None of the witnesses have stated that they had seen the accused Nos.1 to 5 while assaulting the deceased Shivanand. Hence, prosecution has failed to adduce direct evidence about the incident when the incident of assault took place in front of Shraddha bar at public place. The place at the said incident was happened at about 21.55 to 22.05 hours in front of Shraddha Bar and near Vikhroli local railway station. Therefore, it is highly probable many pedestrian or passerby have seen the incident. But prosecution have failed to examine such independent witness to prove their case and to throw light on the actual incident.
18. Initially FIR was lodged against the unknown persons. Therefore, it is the duty of Investigating Officer to conduct test identification parade after arresting the accused Nos.1 to 5. On the contrary it has come in the crossexamination of informant conducted by learned A.P.P that he identified the accused as police have shown him by disclosing their names being the assailants. The test identification parade is not the substantive piece of evidence. But the purpose of conducting identification parade is to strengthen the prosecution case and to satisfy the Investigating agency that their investigation is progress in the right direction. Therefore, not showing the accused to the witness before test identification parade vitiate the case of prosecution. .. j/9.. Sessions Case No.961/2015
19. The PW3, Medical Officer has examined by the prosecution to prove nexus of the injuries to the accused Nos.1 to 5. This witness has stated cause of death was subarachnoid hemorrhage with multiple injuries with alcohol consumption (unnautral). However, prosecution has failed to link these injuries with the alleged assault committed by the accused Nos.1 to 5. The learned counsel for the accused Nos.1 to 5 have submitted that admittedly deceased had consumed liquor, therefore, he might have fallen down on road or footpath in an inebriate condition and cause the injuries to his brain which succumbed to his death. This theory can be acceptable as no conclusive evidence is brought by the prosecution to prove the case of homicidal death against the accused Nos.1 to 5 or their inaction to commit murder of deceased Shivanand.
20. In the form of corroborative evidence Investigating Officer has collected CCTV footage of the incident. However, he has not taken care while retrieving the said footage from the electronic device by adopting the proper procedure as laid down in I.T. Act. The prosecution has also failed to procure the certificate under Section 65B of IT Act to prove such electronic evidence. Therefore, this CCTV footage is also not helpful to the prosecution to prove its case in the absence of proper procedure and to test and accept the authenticity of the electronic evidence i.e CCTV footage.
21. As per case of the prosecution on only point of giving dash the said incident happened which resulted in death of Shivanand. When such incident was happened on trifle issue, in which life of the man lost, it shows sensibility of the society is lost and it is really cause alarm to the health of the entire society. .. j/10.. Sessions Case No.961/2015
22. From the above discussion, I hold that prosecution has miserably failed to prove that accused Nos.1 to 5 have committed murder of the deceased Shivanand either by direct act or from circumstantial evidence which can be gathered the intentional act of the accused Nos.1 to 5. Therefore, I answer point No.1 in the negative and acquit all the accused from the charges levelled against them in C.R.No.256 of 2015 registered with Vikhroli Police Station by giving answer to point No.2 accordingly. Hence, the order : O R D E R
1. Accused No.1. Sani Suresh Kedare, No.2. Roshan Ulhas Kanchan, No.3. Mayur Bhawanishankar Oza, No.4. Nikhil Bapu Waghmare and No.5. Sandip Bastiram Karad are hereby acquitted under Section 235 (1) of Code of Criminal Procedure for the offence punishable under Sections 302 r/w 34 of Indian Penal Code.
2. Bail bonds of accused Nos.1 to 5 stand cancelled.
3. i) Mudemaal articles – ArtA to Art.Z, except Art.K : Pen Drive; being worthless, be destroyed as per rules, after appeal period is over. ii) Art.K : Pen Drive be returned to Vikhroli Police Station as per rules, after appeal period is over.
4. Accused No.1. Sani Suresh Kedare, No.2. Roshan Ulhas Kanchan, No.3. Mayur Bhawanishankar Oza, No.4. Nikhil Bapu Waghmare and No.5. Sandip Bastiram Karad are directed to execute fresh PR bond of Rs.10,000/ each with old sureties in like amount each .. j/11.. Sessions Case No.961/2015 for the period of six months, as mandated under Section 437A of Code of Criminal Procedure. ( ABHIJEET A. NANDGAONKAR ) Additional Sessions Judge, (C.R.No.30) Dt.: 23/09/2019 Gr.Bombay, at Mumbai. Dictated on : 23.09.2019 Transcribed on : 25.09.2019 Signed on : 25.09.2019 kps/ .. j/12.. Sessions Case No.961/2015 “CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER” 26.09.2019 at 05.45 p.m (KISHOR PRAKASH SHERWADE) UPLOAD DATE AND TIME NAME OF STENOGRAPHER Name of the Judge HHJ SHRI A.A. NANDGAONKAR (COURT ROOM NO.30) Date of pronouncement of judgment/order 23.09.2019 Judgment/order signed by P.O. on 26.09.2019 Judgment/order uploaded on 26.09.2019
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