Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment ..1.. C.C. No.132/PW/2018
Exh.
Received on : 18.01.2018
Decided on : 03.10.2018
Duration : 00 08 14
Y M D
CNR MHMM18000035 2018
IN THE COURT OF THE ADDL.CHIEF METROPOITAN MAGISTRATE,
9TH COURT, BANDRA, MUMBAI
JUDGMENT U/SEC. 355 OF THE CR. P. C.
(a) Serial number of the case : 132/PW/2018
(b) Date of commission of the offence. : 15.12.2017
(c) Name of the complainant, if any, : The State (Khar Police
Station, C.R.No.516/2017)
(d) Name of the accused person, his
parentage and residence
: Musa Pappu Shaikh, 28 yrs,
R/at : Carter Road Footpath,
Khar (W), Mumbai.
(e) Offence complained of or proved. : U/Sections 379 of IPC
(f) Plea of the accused person and
his examination, if any
: Accused pleaded not guilty
(g) Final order : Accused is convicted
(h) Date of order : 03.10.2018
ADVOCATES:
For the State : Shri. Nerlikar , A.P. P.
For accused : Shri Ankit Mota
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J U D G M E N T
(Delivered on 3rd October, 2018)
1. Accused is prosecuted for the offence punishable U/Sec. 379
of IPC.
2. Factual matrix of the case in brief is as under :
That on 15.12.2017 at about 6 p.m. accused committed theft
of mobile of complainant from his pant pocket, when complainant was
proceeding on road outside Khar Railway Station, Khar (W). On the
complaint lodged by complainant Bharat Gunalal Singh, an offence
u/sec. 379 of IPC came to be registered. During investigation, said
mobile was recovered as per confessional statement of accused. On
completion of investigation, chargesheet came to be filed in the court.
3. My ld. Predecessor has framed charge against under trial
accused, to which he pleaded not guilty and claimed to be tried.
Defence of accused u/sec. 313 of Cr.P.C is of total denial and false
implication in this case.
4. Following points arise for my determination and my
findings against each of them for the reasons are as under :
Sr.
No.
Points Findings
i) Does the prosecution prove that on 15.12.2017
at 6 p.m. out Khar Railway Station, near Bus
Stop, Khar (W), Mumbai the accused dishonestly
committed theft of black colour ASUS mobile
of informant Bharat Gunalal Singh without his
consent and moved it in order to such taking and
thereby committed an offence of theft ?
In the
affirmative.
ii) What order ? As per final order
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REASONS
5. In order to prove the guilt of accused, prosecution has
examined three witnesses, namely complainantBharat Gunalal Singh
(P.W.1) at Exh. 5, panch witness Vishwanath Sawant (P.W.2) at Exh. 7
and Investigating OfficerPandurnag Lonkar (P.W.3) at Exh.10.
Prosecution has relied on complaint at Exh.6, memorandum statement
of accused at Exh. 8 and seizure panchanama at Exh. 9.
6. I have heard both sides at length. Now, I appreciate the oral
and documentary evidence available on record.
As to point no. i):
7. Evidence of complainant Bharat (P.W.1) discloses that on
15.10.2017 between 7 to 7.30 p.m. when he was returning to Khar
Railway Station from his routine place of job, his mobile of ASUS Zen
company was taken away from his pant pocket. Therefore, he lodged
report of theft as per Exh. 6. Complainant Bharat was not cross
examined by the side of accused. Therefore, prosecution has proved
report Exh. 6 and theft of mobile. Complainant Bharat has identified
stolen mobile shown to him.
8. Now, it has to see whether stolen mobile was recovered at the
instance of accused. In this regard prosecution has examined panch
witnessVishwanath Sawant (P.W.2), who stated that on 28.12.2017 he
was called to police station. The accused gave confession and agreed to
show the place where mobile was concealed. Memorandum statement
of accused was prepared in his presence at Exh.8. Thereafter, they
proceeded by a private vehicle to Dog Park from where the accused
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Judgment ..4.. C.C. No.132/PW/2018
taken out two mobiles, one of Redmi Company and another of ASUS
Company. Police prepared seizure panchanama at Exh. 9 in his
presence.
9. In the crossexamination, this witness admitted that in all 15
to 20 cases he acted as a panch witness. Relying on his admission,
defence counsel submitted that he is a habitual pancha and is not
reliable. No doubt this witness has deposed in many cases, but he
cannot be termed as “habitual witness” unless it is proved by defence.
Mere deposing in several cases by a witness cannot be labelled him as
'habitual witness', especially when the evidence of witness is
corroborated by other witnesses.
10. Evidence of panch witness Vishwanath Sawant (P.W.2) is
supported by Investigating OfficerPandurnag Lonkar. Evidence of
Pandurang Lonkar discloses that accused gave him confession of
commission of theft of mobiles and agreed to show the place where
they are hidden. The accused has shown the alleged place and
produced the mobiles. He seized those mobiles and prepared seizure
panchanama. After completion of investigation, he submitted
chargesheet in the court. Investigation Officer Pandurang was cross
examined at length, but nothing came on record to disbelieve his
testimony. On the basis of evidence of Vishwanath (P.W.2) and
Pandurand Lonkar (P.w.3) prosecution has proved recovery of stolen
mobile from the possession of accused.
11. Now, onus shifted on the accused to prove that he was not in
possession of stolen mobile, but defence failed to discharge their
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burden. Therefore, I have reason to believe the testimony of
prosecution witnesses.
12. In the light of above said discussion and appreciating evidence
on record, it appears that the prosecution has proved theft of mobile as
per complaint Exh. 6 and discovery of stolen mobile as per confessional
statement given by the accused. The prosecution has proved its case
against the accused beyond all reasonable doubts. Therefore, I answer
point no. (i) in the affirmative. Now, I take a pause to hear both side on
the point of sentence.
Sd/
( S. K. Mungilwar)
Addl. Chief Metropolitan Magistrate,
9th Court, Bandra, Mumbai.
13. Ld. APP for State submitted that accused committed serious
offence of theft, therefore, he prayed for maximum punishment. Per
contra, ld. Counsel for accused submitted that accused is an under trial
prisoner and he is in jail from 30.12.2017. Accused is only earning
member of his family, therefore, prayed to give set off. Considering
submission of both sides, period undergone in jail by the accused,
nature of offence, facts and circumstances of the case, in my considered
view following punishment would be sufficient to meet ends of justice.
Hence, I proceed to pass following order :
ORDER
1] Accused Musa Pappu Shaikh is convicted under section
248(2) of Code of Criminal Procedure for the offence punishable
under section 379 of Indian Penal Code and sentenced to suffer
rigorous imprisonment for the period, which he has already undergone
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in jail and to pay a fine of Rs. 10,000/ (Rupees Ten thousand only), in
default of payment of fine, he shall suffer simple imprisonment of
fifteen (15) days.
2] Set off be given to the accused for the custody period undergone
by him in jail as per section 428 of Cr.P.C.
3] Muddemal i.e. Black Colour ASUS Company's Zen Max Model
mobile be returned to the complainant after the appeal period is over or
supurtnama, if any, stands cancelled.
4] Copy of the judgment be given to accused free of cost.
5] Dictated and pronounced in open court.
Sd/
Dictated on : 03.10.2018 ( S. K. Mungilwar)
Transcribed on : 03.10.2018 Addl. Chief Metropolitan Magistrate,
Signed on : 03.10.2018 9th Court, Bandra, Mumbai.
Lsb/
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