Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C.No.53/PW/2022
MHMM180001672022
Received on : 11/01/2022
Registered on : 11/01/2022
Decided on : 12/08/2022
Duration : 00 Y. 07 M. 01 D.
Exh.No.-14
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
(Presided over by K.H. Thombre)
JUDGMENT
(As per Section 355 of Code of Criminal Procedure)
a) The Serial number of the case : C.C. No.53/PW/2022
b) The date of commission of
offence
: 25/06/2021
c) The name of the complainant if
any
: The State through Mahim police
station. C.R.No.330/2021.
d) The name of the accused persons,
parentage and residence
: Shubham @ Pandit Amarnath
Chaube, Age – 29 years,
Occupation- Nil
R/o. 08Th Lane, R.No.111, Ganesh
Nagar, Kandivali(W), Mumbai
e) The offence complained of or
proved
: Under Section 454, 380 of Indian
Penal Code.
f) The plea of the accused and his
examination, if any
: Accused pleaded not guilty and
claimed to be tried.
g) The Final Order : The accused is acquitted.
h) The date of such order : 12/08/2022
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Judgment 2 C.C.No.53/PW/2022
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Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr. Subodh Sethi
=====================================================
JUDGMENT
(Delivered on 12/08/2022)
1) The above named accused is charged for the offence punishable
under section 454,380 of the Indian Penal Code.
2) The case of prosecution in brief as under----
Informant Mehmood Alam Shaikh is residing at Mahim(W),
Mumbai at Room No.13, Alsaba Building, B Wing, Kapad Bazar Road,
Mahim(W), Mumbai-16. Informant is residing with his wife and three sons. On
25/06/2021 at about 9.00 a.m. younger son of informant Shanawaz got up from
sleep and he found that mobile phone kept near the pillow was missing.
Informant and his family members took search of the mobile phone, however it
was not found. At about 8.00 a.m. alarm from the mobile phone of the younger
son of the informant was rang. The informant switched off alarm and again
went to sleep. Informant found that the door of the room was open. Four mobile
handsets, one mobile handset of Redmi Note S, Redmi Note 7, Itel and 10 OR
company were missing. Informant lodged report of the incident on the same day
at Police Station, Mahim.
3) On the report of the informant offence was registered vide crime
No.330/2021 punishable under sections 454,380 of Indian Penal Code against
the accused. During investigation accused was arrested and on the basis of
evidence collected charge-sheet is filed against the accused.
4) Charge is framed against the accused at Exh.02. The contents of
the charge were read over and explained to the accused in vernacular in Jail
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Judgment 3 C.C.No.53/PW/2022
Court to which the accused pleaded not guilty and claimed to be tried. Defence
of the accused is of total denial. Plea of the accused was recorded at Exh.03 .
5) The prosecution has examined in all four witnesses P.W.No.1
Mehmood Alam Shaikh, informant ( Exh.07), P.W.No.2 Shahanawaz Mehmood.
Alam Shaikh, son of the informant (Exh.09), P.W.No.3 API. Kiran Hindurao
Patil, Investigation Officer (Exh.11) and P.W.No.04 API Rahul Shantaram
Avhad who seized the mobile handset from the accused (Exh.12). Statement of
accused under Section 313(1)(b) of Code of Criminal Procedure is recorded
(Exh.14). The defence of accused is of false implication in this case.
6) Considering the evidence and arguments of the parties, following
points arose for determination. Findings are recorded for reasons to follow.
Sr.No POINTS FINDINGS
1] Whether the prosecution proved that the
accused on 25/06/2021 in between 08.00
a.m.to 09.00 a.m. at Room No.13, Alsaba
Building, B Wing, Kapad Bazar Road,
Mahim(W), Mumbai committed lurking
house trespass by entering into the house of
the informant used as human dwelling in
possession of the informant in order to
committing of any offence punishable with
imprisonment and thereby committed an
offence punishable under Section 454 of
Indian Penal Code?
In the negative.
2] Whether the prosecution proved that accused
on the aforesaid date, time and place
committed theft of mobile phones worth
Rs.13,000/- from the house of the informant
used as a human dwelling and thereby
committed an offence punishable under
Section 380 of Indian Penal Code?
In the negative.
3] What order? Accused is acquitted.
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Judgment 4 C.C.No.53/PW/2022
R E A S O N S
AS TO POINT NO.1 TO 3 :
7. Informant has lodged FIR against unknown person about theft of
four mobile handsets from his residential room. The mobile phones are also
recovered during the investigation from the accused. The case of prosecution is
completely based on circumstantial evidence. The important evidence to link
accused with the commission of the offence is the seizure panchanama drawn by
(P.W.04) API Rahul Avhad.
8. The informant (P.W.1) Mehmood Alam Shaikh as well as (P.W.02)
Shahanawaz Shaikh deposed about missing of the four mobile handsets from
their house. (P.W.1) Mehmood Shaikh admitted that he lodged FIR (Exh.08)
against unknown person. The evidence of both these witnesses is relevant only
for proof of missing of the four mobile handsets from their house and lodging of
the FIR by informant at Police Station.
9. As per evidence of API Kiran Patil who was Investigating Officer
deposed that during investigation API Avhad arrested the accused on suspicion
and found one mobile handset during the personal search of the accused. API
Avhad seized the mobile handset and IMEI Number of the mobile handset was
matching with one of the IMEI number of mobile handset stolen from the house
of the informant. The evidence of (P.W.3) API Kiran Patil is hearsay as far as
seizure of the mobile is concerned, the reason is as per his evidence he deposed
on the information given to him by API. Avhad.
10. The star witness in this case for the prosecution is (P.W.4) API.
Rahul Avhad. According to him on 12/12/2021 he got information that one
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Judgment 5 C.C.No.53/PW/2022
person is coming at Mahim, Kapad Bazarr for sale of stolen mobiles, he led a
trap, one person came, Secrete Informant pointed out towards a person, that
person was stopped. It is further deposed by (P.W.4) API Rahul Avhad that on
asking name of that person he disclosed his name as Shubham Amarnath
Chaubey @ Pandit. On taking personal search one blue colour mobile phone
was found from right side pocket of pant of accused Shubham Chaubey. On
taking IMEI number of seized mobile from Shubham Chaubey it was matching
with the IMEI number of the phone about which report of theft was registered at
Police Station. The model of the mobile handset was of Redmi Note 7.
Accordingly, panchanama at Exh.13 was prepared by him in presence of
panchas.
11. In cross-examination (P.W.4) API Rahul Avhad deposed that
though he taken note of personal search of the accused in station diary as well as
personal diary, copy of the diary is not produced on record. The suggestion that
nothing was seized from the possession of the accused and panchanama was
drawn at police station by obtaining signature of habitual panchas is denied by
(P.W.4) API. Rahul Avhad. In this case no independent pancha witness is
examined by the prosecution. It is settled position of law that in absence of
examination of pancha witness evidence of Investigation Officer cannot be
discarded. On scrutiny of the evidence, the incidence took place in between 8.00
a.m. to 9.00 a.m. on 25/06/2021. As per seizure panchanama (Exh.13) alleged
stolen mobile handset seized on 12/12/2021. On perusal of panchanama
(Exh.13) it is specifically mentioned that API. Avhad called two panchas by
giving them information in respect of the offence with detail of crime number
and section registered at Police Station,Mahim. As per API Avhad he received
confidential information from a person that one person is coming to sell stolen
mobile. This evidence of (P.W.4) API Avhad is not believable for the reason that
how the person who has given confidential information was aware about the
crime registered at Police Station,Mahim in respect of the alleged seized mobile
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Judgment 6 C.C.No.53/PW/2022
number. Further, without having documents of the offence how API Avhad able
to match the IMEI number of seized mobile with the IMEI number of one of the
mobile allegedly stolen and mentioned in the First Information Report.
12. On perusal of panchanama(Exh.13) it reveals that it was prepared
on 12/12/2021 at about 2.35 a.m. to 3.15 a.m.. The evidence of (P.W.4) API.
Avhad about seizure of the mobile handset allegedly involved in the commission
of the offence from the accused is doubtful, for the reason that the evidence
given by API Avhad is not believable and cannot be considered to prove seizure
of the mobile handset from the accused.
13. One of the important aspect of the investigation is that generally
IMEI number of mobile phone is not known to the person though he is using the
mobile phone. This number does not appear on the face of the handset unless a
mobile handset is opened or checked through particular setting by using software
in the mobile. At the time of lodging of the First Information Report admittedly,
informant was not having his mobile handset with him. Inspite of that no
explanation is given by the prosecution how informant was acquainted with the
IMEI number as IMEI number of all the four mobile handsets are mentioned in
the FIR(Exh.07). This creates doubt about truthfulness of the case of prosecution
implicating the accused in the offence of theft.
14. It reveals from the scrutiny of evidence that no explanation is given
by the prosecution as to how the informant was aware about IMEI number of
four mobile handsets due to which he was able to mention it in the FIR. The
evidence of (P.W.4) API Avhad is not trustworthy about the investigation, no
explanation is given as to how he could able to check the IMEI number of
allegedly seized mobile with the IMEI numbers of the mobile handset mentioned
in the FIR. The evidence which putforth by the prosecution is not trustworthy.
In absence of cogent and convincing evidence accused cannot be held guilty for
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Judgment 7 C.C.No.53/PW/2022
the charges levelled against him. In this background it is held that prosecution
failed to prove guilt of accused beyond reasonable doubt. Findings to the Point
No.1 and 2 is recorded in the negative. Following order is pass.
O R D E R
1) The accused Shubham @ Pandit Amarnath Chaube is acquitted of
the offence punishable under Section 454, 380 vide Section 248(1) of the Code
of Criminal Procedure.
2) The accused is in jail. He be released forthwith if, not required in
any other offence. Inform the Jail Authority accordingly.
3) The accused to furnish bail bonds in compliance of Section 437(A)
of the Code of Criminal Procedure. Jail Authority is directed to release the
accused on executing P.R.Bond of Rs.10,000/-(Rupees Ten Thousand only) and
to submit the report accordingly to this Court.
4) Seized mobile handset be returned to informant after appeal period.
5) The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of the Code of Criminal Procedure for further compliance.
( Dictated and pronounced in open Court.)
Date:-12/08/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai
Delivered on: 12/08/2022
Dictated on : 12/08/2022
Typed on : 12/08/2022
Signed on : 12/08/2022
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