Final Order 1

Order Details: Copy of Judgment
Pdf Text: -- 1 -- C.C.No.62 PW 2023
MHMM180002012023 Received on : 09/01/2023
Registered on : 09/01/2023
Decided on : 02/05/2023
Duration : 00 Y. 03 M. 23 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.62/PW/2023
b) The date of commission of
offence
: In between the period from
09/07/2022 to 10/07/2022
c) The name of the complainant if
any
: The State through Mahim police
station. C.R.No.968/2022.
d) The name of the accused persons,
parentage and residence
: Mohammad Habib @ Aalu
Sameer Qureshi, Age – 21 years,
Occupation- Nil
R/o. Footpath near Anwarul Kuran
Masjid, J.J.Colony, K.C.Marg,
near MTNL Office, Bandra (West),
Mumbai
e) The offence complained of or
proved
: Under section 454,457,380 of Indian
Penal Code r.w. 142 of Maharashtra
Police Act.
f) The plea of the accused and his
examination, if any
: The Accused pleaded not guilty and
claimed to be tried.
g) The Final Order : Accused is acquitted.
h) The date of such order : 02/05/2023
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Learned counsel for Prosecution : APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Priyanka Mhaske
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JUDGMENT
(Delivered on 02.05.2023)
1) The accused is charged for the offence punishable under section
454,457,380 of Indian Penal Code( for short 'IPC'.) r.w. 142 of Maharashtra
Police Act.
2) The case of prosecution in brief is as under----
On 9/07/2022 informant left her house by locking the door at
Palghar. One key of the house was with brother-in-law of the informant
Mr.Bhuwaneshwar Devram Tandel. On 10/07/2022 at about 8.00 a.m. Mr.
Bhuwaneshwar Tandel made phoen call to the informant that the theft has
taken place at his house. It was informed on phone that the door of the house
was half opened and lock was broken. Mr. Bhuwaneshwar Tandel and his
sister Pramila Tandel entered in the house and found that articles are scattered,
cupboard and drawer are opened. The informant left from the Palghar and
reached at his house at about 01.00 p.m.. The informant found that cash
amouknt of Rs.1,50,000/- and golden ornaments, chain of 15 gms., finger ring
of 5 gms and earrings of 2.5 gms are stolen from the house. The informant
lodged report of the incidene to the Police Station, Mahim.
3) On the report of the informant offence was registered vide crime
No. 968/2022. The charge was framed against the accused at Exh.02. The
contents of the charge were read over and explained to the accused in
virnacular. The accused pleaded not guilty and claimed to be tried. The
defence of the accused is of total denial and false implication. Plea of the
accused was recorded at Exh.03.
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4) The prosecution has examined in all three witnesses (P.W.No.1)
Dilip Dattaram Mhatre, informant (Exh.04), (P.W.No.2) Chand Zakir Shaikh,
pancha witness (Exh.06) and (P.W.No.3) Balasaheb Dnyandev Pote,
Investigating Officer (Exh.08) . Statement of accused under Section 313(1)(b)
of The Code of Criminal Procedure 1973 is recorded at (Exh.11). The defence
of the accused is of false implication. The cash amount is seized from his
pocket.
5) 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 on
09.07.2022 at about 5.00 hrs. to 10.07.2022 at
8.30 hours, at Room No.21, Pardesh Jeevan
Dev Niwas, Mahim Koliwada, Mahim
Causeway, Mahim (W), Mumbai, accused
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 that you have thereby
committed an offence punishable under Section
454 r.w.34 of Indian Penal Code?
In the negative
2] Whether the prosecution proved that within the
aforesaid period and place the accused
committed lurking house trespass by entering
in the house of informant after sunset and
before the sunrise in order to commit theft,
thereby committed an offence under Section
457 of Indian Penal Code?
In the negative
3] Whether the prosecution proved that within the
aforesaid period and place the accused
committed theft of the gold ornaments and cash
amount total worth Rs.2,50,000/- from the
dwelling house of informant, thereby
committed an offence punishable under Section
380 of Indian Penal Code?
In the negative
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4] Whether the prosecution proved that within the
aforesaid period and place the accused found in
contravention of the externment order issued by
Deputy Police Commissioner against him,
thereby committed an offence punishable under
Section 142 of Maharashtra Police Act?
In the negative
5] What order? Accused is acquitted.
R E A S O N S
AS TO POINT NO.1 & 4 :
6) To maintain the brevity all the points are taken together for
discussion. The informant,(P.W.1) Dilip Mhatre deposed that on 10/07/2022
he went to Palghar. He got phone call from Mr. Bhuvaneshwar Tandel who
informed him that theft has taken place in his house. The informant reached at
the house and found that cash of Rs.1,50,000/- and golden chain, finger ring
and one pair of ear rings are stolen. The informant admitted the contents of
FIR (Exh.05) as correct. The FIR was lodged against the unknown person by
the informant.
7) It is clear from the allegations that the case of prosecution is
based on circumstantial evidence. To prove the circumstances against the
accused prosecution has relied on disclosure statement at the instance of
accused under Section 27 of the Indian Evidence Act.
8) To prove the disclosure statement and recovery pancha witness
(P.W.2) Chand Zakir Shaikh deposed that on 20/11/2022 he was called at
Police Station for panchanama, accused was present there, one bag was in the
pant's pocket of the accused of which panchanama was prepared and cash of
Rs.5,270/- was in the pocket. The contents of panchanama (Exh.7) and
signature on it are admitted by (P.W.2) Chand Zakir Shaikh. As per evidence
of (P.W.2) Chand Zakir Shaikh the recovery is made from the accused at the
Police Station from the bag taken out from the pocket of the pant of the
accused.
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9) According to (P.W.3) Balasaheb Pote, he deposed that accused
given disclosure statement on 23/12/2022 in presence of panchas that he is
ready to show the place where he has kept the articles. The disclosure
statement panchanama (Exh.08) was prepared by him in presence of panchas.
Then accused taken them under the Bandra Bridge and shown one place.
Some articles were found and cash amount of Rs.5,270/- was also found. The
articles and cash amount was seized and sealed in presence of presence of
panchas vide panchanama (Exh.09). As per evidence of (P.W.3) Balasaheb
Pote the cash amount was seized from under the Bandra bridge. As per
disclosure statement of the accused the place from where the alleged cash
amount of Rs.5,270/- was recovered has been deposed differently by pancha
witness and Investigation Officer. As per testimony of (P.W.2) Chand Shaikh
amount was recovered from the pocket of the pant of the accused at Police
Station. As per evidence of (P.W.3) Balasaheb Pote the amount was seized
from under the Bandra bridge. The prosecution has to produce evidence
which is consistent, clear and cogent. The evidence of both the prosecution
witnesses is inconsistent about the place from where the alleged cash amount
was recovered. On the basis of this inconsistent evidence the chain of
circumstances on which the case of the prosecution based cannot be said to be
proved.
10) There is no clear and cogent evidence to link the accused with
the alleged theft in the house of the informant. The accused cannot be held
guilty for the offence punishable under Section 454, 457, 380 of the Indian
Penal Code.
11) The allegations against the accused are that the accused has
breached the order of externment issued under Section 142 of the Maharashtra
Police Act. The prosecution failed to prove on record the order of a competent
authority by which the accused is externed from the local limitation of
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Mumbai. In absence of any evidence about the existence of the order of the
externment accused cannot be held guilty for the offence punishable under
Section 142 of Maharashtra Police Act.
12) For the above reasons it is held that prosecution failed to prove
guilt of the accused beyond reasonable doubt. Findings to Point No.1 to 4 are
recorded in the negative with the following order.
ORDER
1) The accused Mohammad Habib @ Aalu Sameer Qureshi
acquitted of the offence punishable under Section 454,457,380 of Indian
Penal Code r.w. 142 of Maharashtra Police Act vide Section 248(1) of the
Code of Criminal Procedure.
2) Accused is in Jail Custody. He be released forthwith if, not
required in any other crime. Inform the Jail Authority by issuing letter to that
effect.
3) The accused to furnish bail bonds in compliance of Section 437-
A of the Code of Criminal Procedure.
4) Seized cash amount of Rs.5,270/- be returned to the informant
after the appeal period. Seized lock and a metal piece of 2 cm. Length be sold
in public auction and its sale proceed be credited to the State Government 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:-02/05/2023. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai
vnh
Delivered on: 02/05/2023
Dictated on : 02/05/2023
Typed on : 02/05/2023
Signed on : 02/05/2023
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