Professional Documents
Culture Documents
RCC No. 125/2014
RECEIVED ON : 11/04/2014
REGISTERED ON : 17/04/2014
DECIDED ON : 23/11/2018
DURATION ON : Y M D
04 07 12
IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS
BARAMATI, DIST PUNE
(PRESIDED OVER BY A.J. BACHULKAR)
(CNR NO. MHPU160017122014)
Regular Criminal Case No.125/2014
Exhibit No. 43
State of Maharashtra, ]
Through, ]
Police Station Officer, ]
Baramati City Police Station ]
Tal. Baramati, Dist Pune ] .… Prosecution.
Versus
1. Vikas Hanumant Londhe ]
Age 25 years, Occ Business ]
R/o Prabudh Nagar, Aamrai, ]
Tal Baramati, Dist Pune ]
2
RCC No. 125/2014
2. Yuvraj Salim Gaikawad ]
Age 21 years, Occ Labour ]
R/o Prabudh Nagar, Aamrai, ]
Tal Baramati, Dist Pune. ] …. Accused.
Charge : Offence punishable Under Section 326, 323, 427,504
and 506 r/w 34 of Indian Penal Code.
Shri.S.S.Shaikh : APP for the State
Shri.A.M.Kale : Advocate for Accused
J U D G M E N T
(Delivered on )
The accused are facing trial for offences punishable
under sections 323, 326, 427, 504 and 506 r/w sec 34 of the
Indian Penal Code, 1860 (In short 'I.P.C.').
2. The Case of prosecution in brief is as under:
It is the case of prosecution that, on 05/10/2013 at about
8.00 pm, the informant Chandrkant Laxman Dhanrale was doing his
business of selling peanuts on his handcart in front of Sharad Pawar
Udyog Bhavan. At that time Vikas Shinde and Yuvraj came at his
handcart and they purchased peanuts of five rupees. The informant
asked for its price. At that time Vikas Shinde and Yuvraj started to
3
RCC No. 125/2014
abuse and intimidate him. The informant told them not to abuse him.
At that time they both hit him by bamboo stick on his left hand,
shoulder, metacarpal finger and his head. Thereafter they overturned
the hand cart of the informant and caused the loss of his peanuts. And
they intimidate the informant if he will park his handcart there again
they will kill him. Therefore the informant lodged FIR against the
accused.
3. On the basis of said report, crime No.302/2013 was
registered against the accused. The investigation conducted by
P.V.Darade of Baramati City Police Station. He proceeded towards the
place of incident and prepared spot panchnama. He recorded
statements of witnesses and seized the weapons used in the crime.
After completion of investigation he submitted final report under
section 173 of Code of Criminal Procedure against the accused.
4. Charge was framed against accused vide (Exh. 36) for
offences punishable under section 323, 326, 427, 504 and 506 r/w sec
34 of the Indian Penal Code to which they pleaded not guilty
(Exh.10) and claimed to be tried.
5) Amol Ganpat Pawar(PW5), Pancha witness (Exh.27).
6)P.V. Darade (PW 6), Investigating officer (Exh 31).
7) Dr. Gokul Kale (PW7), Medical Officer(Exh.37)
6. In documentary evidence prosecution has relied upon
1. F.I.R. at Exh.17 dated 06/10/2013,
2. Spot Panchnama at Exh 33
3. Medical certificate of the informant at Exh.20 and 38
4. Seizure Panchnama at Exh 33
informant by means of stick ? No.
2. Is it proved that, the accused on abovesaid
date, time and place accused No. 1 and 2 in
furtherance of their common intention
voluntary caused hurt to the informant? No.
3. Is it further proved by the prosecution that,
the accused intentionally insulted the
informant by abusing and thereby gave him
provocation which would likely to cause
breach of public peace? No.
4. Is it proved by the prosecution accused No.
1 and 2 committed the offence of criminal
intimidation by threatening the informant
No.
with intent to cause alarm to them?
5. Is it proved by the prosecution that accused
No. 1 And 2 overturned the handcart of the
informant and caused loss to the informant
and thereby committed an offence
punishable under section 427 of the indian
Penal Code ? No.
6. What order ? Accused are
acquitted.
REASONS
9. It is argued by the learned APP that the the prosecution
has proved its case. The informant has stated about the incident. The
evidence of informant is corroborated by evidence of witnesses.
Further the spot of the incident is proved. Hence, accused deserves to
be convicted. Whereas it is argued by the learned advocate for the
6
RCC No. 125/2014
As to point no. 1 to 2 :
10. Both of these offences are alleged to be committed in a
series of transaction. All alleged incidents are corelated to each other.
So to avoid repetition, I would like to discuss points No 1 and 2
together.
11. It is alleged that, the accused No. 1 and 2 has committed
an offence under sec. 323, 326 r/w section 34 of the IPC. In order to
prove an offence under sec. 326 of the IPC the prosecution is required
to prove:
i) That the accused caused by his act grievous hurt to the
informant.
ii) That he did such act intentionally or with knowledge that it
would cause grievous hurt ,
iii) That hurt has been caused by means of weapon which is
likely to cause death,
iv) That such act has been comitted wihout any provocation.
12. In order to prove this fact the prosecution has examined
informant Chandrakant Laxman Dhanrale (PW1). He deposed that
the incident took place on 05/10/2013 at 8.00 pm at his handcart in
front of Sharad Powar Udyogbhavan. At that time Vikas Londhe and
7
RCC No. 125/2014
Yuvraj Gaikwad came there and they purchased peanuts of Rs.5 and
they told him that they dont have money. The compainant told them
that it is a time of evening therefore he asked money from them. At
that time the accused abused him and slapped him. They hit the
informant on his left metacarpal, shoulder,hand and head. Due to
which the informant felt unconscious. He was taken to the hospital of
Dr. Gokul Kale. When he become conscious the police recorded report.
The informant proved report at exh. 17. He also identified the bamboo
stick at article 'A' and 'B'.
14. The prosecution further relied upon the testimny of Nilesh
(PW.2) a brother of the informant. He deposed that the alleged
incident took place on 5/10/2013 at about 8.00 to 8.30 pm near the
bus stand. At that time he received phone call from Vicky Sable. Vicky
Sable told him that some persons are assaulting to his brother.
Thereafter he proceeded towards spot of incident. At that time Vicky
Lokhade and Yuvaraj were leaving the spot after assaulting his
brother. There was fracture to his brother's metacarpal finger and he
sustained injury to his hand, shoulder and head. He took the
informant to police station and thereafter to government hospital. The
doctors in governmet hospital referred him to Dr.Gokul Kale's hospital.
Doctor operated his metacarpal finger. He identified sticks.
16. The prosecution also examined Dr. Nilesh Naigaonkar
(exh.19). He deposed that on 05/10/2013 the informant had been to
Silver Jubilee Hospital. He examined the informant and found i)
abrasion over right thumb 1/2 x 1/2 cm, ii)contusion over left TM
Joint 3x 5 cm, oval shaped, iii) the informant was complaining pain
over back, iv) swelling was present on dorsal aspect of left hand 5th
metacarpal bone, v) Contusion with abrasion present on the top left
shoulder 7x3 cm redish in colour. He further stated that he treated
patient and accordingly issued injury certificate. He further stated that
injuries No.1 to 5 are possible by assault with sticks at article 'A' and
'B'. He further stated that he referred the informant to Orthopedic
Surgeon for forth injury.
17. In his cross examination he admitted that history of assault
is not mentioned in the injury certificate. He further admitteded that if
sombody assaults on the back of person with stick, it may give rise to
wheel marks. He further admitted that patient was not having any
wheel mark on his body.
the history of assault. He further admitted that he did not bring exray
report of injured with him.
19. Considering the evidence of all these witnesses together the
infomant (PW1) stated that accused slapped him and they hit bamboo
stick on his metacarpal finger,shoulder, hands and head. Nilesh (PW2)
deposed when he reached at spot accused were leaving the spot and
the informant sustained fracture to his metacarpal bone and injury to
his hand, shoulder and head. Dr. Naigaonkar (PW3) deposed that he
found abrasion over right thumb, contusion over left T.M., swelling
was present on left hand 5th metacarpal bone, contusion with abrasion
on left shoulder. Dr. Gokul kale (PW7) also deposed that the
informant had multiple abrasion and bruises over his person and
fracture of left metacarpal bone. Considering the evidence of all these
witnesses, medical evidence corroborate the version of the informant.
Therefore it is proved that the complainant has sustained injuries to
his hand, shoulder and head.
20. Now, the question before me whether accused persons are
responsible for the injuries inflicted to the informant. On this point it
is argued by the learned defence counsel that, the present case is
about mistaken identity. In present case FIR is lodged against Vikas
Shinde and Yuvaraj but the chargesheet is filed against Vikas Londhe
and Yuvraj Gaikawad. The informant testified that Vikas Londhe and
Yuvraj Gaikawad beaten him. Nilesh (PW 2) testified that when he
reached at the spot he saw Vicky Lokhande and Yuvraj were leaving
the spot after beating his brother. It is further argued that the
11
RCC No. 125/2014
investigating officer admitted that, he has not conducted identification
parade of the accused persons in order to assertain whether accused
persons are same persons who beat the informant or not. Therefore it
is argued by the learned defence counsel that accused are falsely
implicated in the crime. The prosecution has failed to prove that
accused persons and culprits of crime mentioned in the FIR are same.
Therefore it is prayed that accused are entitled to be acquitted.
22. He furher relied upon State of Maharashtra Vs. Namdeo @
Nenaya koyappa Bansode and Another,1975U.C.R.(BOM) 78, wherein
it has been held that, no evidence to show that nick name of the
accused Namdeo was Nenaya or nickname of accused Pundalik was
Pandalaya. It can not be said that accused namdeo and Pundlik were
the pesons named in first information report by the informant. Identity
of these persons is not established. It can not be held that these two
persons were amongst others who had committed decoity.
12
RCC No. 125/2014
24. I have gone through FIR, other documents on record and
testimony of witnesses. The FIR is lodged against one Vikas Shinde
and Yuvaraj. On the perusal of FIR at Exh17, it is mentioned therein
that on 5/10/2013 at 8.00 pm he was selling peanuts on his hand
cart. At that time Vikas Shinde and Yuvraj came at his hand cart to
purchase peanuts. But in chief examination he deposed that on
5/10/2013 at 8.00 pm Vikas Londhe and Yuvraj Gaikawad came at his
handcart to purchase peanuts. Searching his cross examination he
admitted that, he personally know Vikas Londhe and Yuvraj Gaikawad
from last two years. He further admitted prior to the incident Vikas
Londhe came at his handcart 5 to 6 times. He further admitted that
he stated to police Vikas Shinde had beaten him. He further admitted
that Vikas Shinde was also his customer. Considering the testimony of
informant he acquainted with both Vikas Londhe and Vikas Shinde. In
such circumstances there is no reason given by him why the FIR was
lodged against Vikas Shinde. The informant has not throw light why
name of person other than accused is mentioned in the FIR, whether it
has been written mistakenly or whether he was not aware with the
names of accused. In the absence of any such clarification on the part
13
RCC No. 125/2014
of informant, it causes fatal to the prosecution case. Further full name
of accused No.2 is not mentioned in the FIR. The informant admitted
he is acquainted with both the accused. Then why he has not
mentioned full name of the accused No.2. He did not mentioned into
his testimony that he was unaware of his surname at the time of
lodging FIR. Further it is nowhere mentioned in his testimony that
Yuvraj mentioned in FIR and accused Yuvraj Gaikawad is same
person. When the informant has admitted that he is acquainted with
both the accused and where no reason is given for lodging FIR against
two different persons in such circumstances it creates doubt about a
credibility of the informant.
26. P.V.Darade (PW6) an investigaing officer admitted in his
cross examination that in fIR at exh 17 is lodged against Vikas Shinde
and Yuvraj. He further admitted that he has not conducted
identification parade in order to assertain whether accused persons
14
RCC No. 125/2014
and persons who beat the informant are same or not. He further
admitted that he has not produced any evidence in the court to prove
that Vikas Shinde a person beating to the informant and accused are
same persons.
27. In the present case, FIR is lodged against Vikas Shinde and
Yuvraj. But after investigation chargesheet was filed against Vikas
Londhe and Yuvraj Gaikawad. Investigating officer had not disclosed
how he came to the conclusion that, accused were responsible for the
offence. In such circumstances identification of the accused by
informant was necessary in order to assure that the investigation is
proceeding in right lines in addition to furnishing corrobaration of the
evidence to be given by the witnesses later in the court at trial. In such
circumstances failure on the part of the investigating officer to coduct
identification parade goes to the root of proecution case.
28. Considering the evidence of all witnesses, the informant is
acquainted with both accused and also acquainted with Vikas Shinde
and Yuvraj mentioned in FIR. If informant was acquainted with
accused since 2 years. Then there should be some satisfactory reason
why name of wrong persons is mentioned in the FIR. But there is no
clarification given either by informant or by investigating officer as to
why wrong names of the culprits is mentioned in FIR. The evidence
of the informant is not cogent, satisfactory and reliable. Further in the
case of doubt, the prosecution should have hold identification parade
of the accused. But failure on the part of the prosecution to hold
identification parade fatal to the prosecution case.
15
RCC No. 125/2014
29. The spot of incident situated near Bus stand. The defence
has brought more details of surroundings of the place of incident
through cross examination. It appears that, the place of incident is
thickly populated area. In the circumstances, naturally question arise
as to why prosecution has not examined any witness of the locality
whose presence can not be doubted. Any shop owner or other hawkers
would be the natural witness to the incident. As there presence at the
spot is free fom suspician. Always it depends upon circumstances,
whether there was an opportunity for incident having been seen by
the independent witness.
31. The prosecution also examined panch witnesses Rajendra
(PW4) who happens to be seizure panch and Amol (PW5) who
16
RCC No. 125/2014
Point No. 3 :
Point No.4:
34. The accused persons are charged for the offence punishable
under section 506 read with section 34 of the IPC. The informant
deposed that accused No. 1 and 2 threatened him that, if he will again
park his handcart there, they will kill him. But at which instances the
accused persons threatened to the informant are under clouds of
doubt. The prosecution has failed to prove the beating to the
informant. The act of threatning can not be read seperately from
alleged act of beating. Therefore I hold that, the prosecution has failed
to prove that the accused threatened informant with intent cause
alarm. Hence, I answer point No.3 in the negative.
18
RCC No. 125/2014
Point No.5:
35. It is alleged by the prosecution that, the accused overturned
the handcart of the informant because of which peanuts kept on the
handcart were spread all over the road. Considering evidence
discussed above, the prosecution has failed to establish the identity of
the accused in connection with present offence. Therefore, I answer
point No.5 in the negative.
36. As a cluster of above discussion, the proscution failed to
establish the identity of the accused in relation to crime. There is no
independant corroboration to the informant's version. Further it is
alleged that offence was committed thickly populated area. But
prosecution failed to examine any independant witness. The
prosecution has not produced any cogent, satisfactory and reliable
evidence . All these things creates doubt in the prosecution version.
37. In the result, I hold that prosecution failed to establish
alleged offence to rope accused in connection with charged crime. The
wooden stick is worthless. Hence, deserved to be destroyed after
appeal period. As a result the accused is entitled to be acquitted. In
the result in order to answer this point, I pass fllowing order.
ORDER
1. The accused Vikas Hanumant Londhe and Yuvraj SalimGaikawad
are acquitted vide section 248(2) for the offence punishable under
section 323, 326, 504 and 506 r/w 34 of the Indian Penal Code.
19
RCC No. 125/2014
2. His bailbonds stands cancelled.
3. Seized property two wooden sticks (Article A and B) be
destroyed after appeal period is over.
4. The accused is directed execute P.R.bond of Rs.15,000/with
surety of like amount to appear before the Appelate Court as an when
required, in view of section 437A of Code of Criminal Procedure.
Sd/
Date : 23112018 ( A.J. Bachulkar )
9th Judicial Magistrate First Class,
Baramati.
“ I affirm that the contents of this P. D.F. file Order are same word for
word as per original Order.
Name of Steno : Patil M. M.
Court Name : 9th Jt. CJJD & JMFC, Baramati
Date : 23112018
Order signed by
presiding officer on : 21122018
Order uploaded on : 21122018.”
20
RCC No. 125/2014