Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.153/PW/2023
MHMM180005652023 Received on : 01/02/2023
Registered on : 01/02/2023
Decided on : 19/06/2023
Duration : 00 Y. 04 M. 18 D.
Exh.No.- 15
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.153/PW/2023
b) The date of commission of
offence
: 12/12/2022
c) The name of the complainant if
any
: The State through Mahim police
station. C.R.No.1204/2022.
d) The name of the accused persons,
parentage and residence
: Burhan Bashir Meman,
Age – 40 years,
Occupation- Nil
R/o.Chembur Nagwadi,
P. L. Lokhande Road,
beside Shivsena Bhavan, behind
S.K.Roy College, Chembur, Mumbai
e) The offence complained of or
proved
: Under Section 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 convicted .
h) The date of such order : 19/06/2023
..2/-
-- 1 of 7 --
Judgment 2 C.C. No.153/PW/2023
=====================================================
Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr. P.P.Khot
=====================================================
J U D G M E N T
( Delivered on 19/06/2023 )
1) The accused is charged for the offence punishable under section
380 of Indian Penal Code, 1860 (For short 'Code').
The case of prosecution in short is as under: -
2) The informant is an advocate by profession and notary. On
12/12/2022 the informant completed his court work and returned to his Office at
Mahim at about 1.30 p.m.. AT 1.55 p.m. the informant went to Mahim Police
Station for some work. He handed over his bag to his son to keep bag in the
house. The son of informant returned to the office by keeping bag in the house
and informed that door of the house was opened. The daughter of the informant
was alone in the house. Thereafter the informant returned to his office at 2.30
p.m. and was doing some work. At 4.00 p.m. informant has some work of notary
therefore he searched the bag in the house. The informant made inquiry with his
son and daughter and searched the bag but it was not found. The informant then
lodged report at Police Station, Mahim about theft of the bag, notary register
No.08, court documents and black coat. The offence was registered and after
completion of the investigation charge-sheet is filed against the accused.
3) The Charge is framed against the accused at Exh.02. The contents
of the charge were read over and explained to the accused in vernacular through
Video Conference to which accused pleaded not guilty and claimed to be tried.
Plea of the accused is recorded at (Exh.03 ) .
4) The prosecution has examined in all four witnesses (P.W.No.1)
..3/-
-- 2 of 7 --
Judgment 3 C.C. No.153/PW/2023
Akhil Ahmed Nadeem Mohd. Shaikh, informant at (Exh.04), (P.W.No.2)
Mohammad Shakil Ali Hasan Khan, pancha witness (Exh.07), P.W.No.03
Balasaheb Dnyandev Pote, Investigation Officer ( Exh.09) and (P.W.No.4) Tahir
Khalid Khan, (Exh.12).
5) The statement of the accused under section 313(1)(b) of The Code
of Criminal Procedure, 1973 (for short the' Code') is recorded at (Exh.14). The
defence of the accused is that of total denial and false implication.
6) Heard Ld. APP and Ld. Advocate for the accused. 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 12/12/2022 at about 13.55 hrs. to
16.00 hrs. at Room No.102, Cadle Queen , A
Wing, 1st Floor, 19/A, Veer Savarkar Marg,
Mahim(W), Mumbai committed theft of bag
containing one black coat, tie, case papers,
notary register, two ball pens etc. of the
informant from the house of the informant
used as human dwelling and thereby
committed an offence punishable under
Section 380 of the Indian Penal Code?
Yes.
2] What order? Accused is convicted
R E A S O N S
AS TO POINT NO.1 :
7) Beginning with the evidence of (P.W.1) Akhil Shaikh, he deposed
that when he asked his son to bring the bag which was keep in the house he
found that the bag was missing and his coat was stolen. The informant lodged
report of theft of coat, tie band, court case papers, notary register No.8 and four
ball pens by admitting contents of FIR (Exh.05) as correct. The informant has
..4/-
-- 3 of 7 --
Judgment 4 C.C. No.153/PW/2023
lodged the report of the incidence against the unknown person. There is nothing
in the cross-examination of (P.W.1) Akhil Shaikh, informant to discard his
testimony.
8) Pancha witness (P.W.2) Mohammad Khan deposed that one
pendrive of 8 GB, silver colour was seized in his presence by playing video clip
on the computer by attaching pendrive. It has been specifically admitted by
(P.W.2) Mohammad Khan that panchanama about seizure of the pendrive was
prepared in his presence. This pancha witness was cross-examined on the point
that from where he was called, there is nothing in cross-examination of the
pancha witness to believe that no panchanama was prepared in his presence.
9) The important witness of the prosecution (P.W.3) Balasaheb Pote
deposed that on the basis of secrete information he arrested the accused. On
22/12/2022 accused has given disclosure statement that he is ready to show the
place where he kept the articles and he prepared disclosure statement
panchanama (Exh.10) in presence of panchas. On perusal of disclosure
panchanama it reveals that accused has given disclosure statement that he is
ready to show the place where he has kept the articles. It is further deposed by
(P.W.3) Balasaheb Pote that he, panch witness and the accused proceeded as per
direction of the accused. The accused taken them to Pattharwadi area and shown
the place by pointing out finger from where one bag was recovered. One bag
containing one black colour coat, two tie, some court papers, ball pen was
found. The seizure panchanama (Exh.11) was prepared by (P.W.3) Balasaheb
Pote in presence of panchas.
10) To prove the electronic evidence (P.W.4) Tahir Khan deposed that
he is residing at Cadle Queen Housing Society and was looking after the
maintenance and was in-charge of DVR and CCTV Unit. He was asked to give
CCTV Footage on 12/12/2022. Accordingly he copied the CCTV Footage of
..5/-
-- 4 of 7 --
Judgment 5 C.C. No.153/PW/2023
2.00 p.m. on 12/12/2022 in pendrive from DVR and handed over pendrive to
police officer. Tahir Khan (P.W.4) deposed that he issued certificate under
Section 65(B) of the Indian Evidence Act vide (Exh.13). This witness has
identified the pendrive and hard copy of the CCTV Footage when shown to him.
In cross-examination of (P.W.4) Tahir Khan, he admitted that he has not
maintained register of CCTV Footage and whether letter was given to the society
about taking of CCTV Footage. From the evidence of (P.W.4) Tahir Khan it can
be held that he has issued certificate (Exh.13) by copying CCTV Footage in a
pendrive and was in-charge of the CCTV Footage of the place. In view of ruling
laid down by the Hon'ble Supreme Court in the case of Arjun Pandirao
Khotkar Vs. Kailash Kushanrao Gorantyal (2020) 3 SCC 216 the Hon'ble
Supreme Court has specifically laid down that the person who is in-charge of the
electronic device can issue certificate under Sction 65(B) of the Indian Evidence
Act to prove secondary evidence of electronic record. In the present case Tahir
Khan (P.W.4) is the person who was in-charge of the CCTV Footage filed in this
case.
11) It is the argument of the Ld. A.P.P. that the charge under Section
380 of I.P.C. is proved against the accused beyond reasonable doubt. Ld.AP.P.
during her arguments referred to the evidence of prosecution witnesses and
submitted that there is no other person than the accused who has stolen bag from
the house of the informant. Ld. Advocate for the accused Mr. P.P.Khot submitted
that though the articles are seized but those are not shown to the informant and
the articles are not produced before the Court. The circumstantial evidence
against the accused is not proved. The accused is liable to be acquitted.
12) The case of prosecution is based on circumstantial evidence.The
burden is on the prosecution to establish chain of circumstances to prove that it is
the accused who has committed an offence. The chain of circumstances are to be
proved beyond reasonable doubt exonerating any other person than the accused
..6/-
-- 5 of 7 --
Judgment 6 C.C. No.153/PW/2023
to link him with the commission of the offence. The FIR (Exh.05) is lodged
against unknown person by the informant about theft of bag containing black
colour coat, two tie, court papers, ball pens and one bag. The presence of
accused during the period of theft is seen from the CCTV Footage filed on
record. The disclosure statement given by the accused and leading to the
recovery of the articles confirms the articles stolen and articles recovered. The
time of theft, the presence of the accused at the society where the house of the
informant is situated and recovery of the same articles which were stolen proves
that all the chain of circumstances are proved against the accused which
establishes that it is the accused who has committed theft of a bag containing
articles from the house of the informant. The offence punishable under Section
380 of the Indian Penal Code provides punishment for theft from dwelling
house. It is held that the offence punishable under Section 380 of IPC is proved
against the accused beyond reasonable doubt. The accused is to be heard on the
point of sentence.
13) Heard accused in person. The accused submitted that he is in jail
since his arrest. The period already undergone by the accused be imposed as a
sentence of imprisonment. Ld. Advocate for the accused submitted that the
sentence of imprisonment be awarded in respect of the period already undergone
by the accused and minimum fine be imposed. Ld. A.P.P. submitted that
maximum sentence of imprisonment and fine be awarded to the accused.
14) In this case the accused though released on bail failed to furnish
surety. Ld. Advocate has tried the case probono. The amount of the property
allegedly stolen though less it is of an advocate stolen from his house. The
accused is not entitled to be released on Probation of Offender Act. The
compensation to the informant will not serve any purpose as accused has no
source of income and stolen articles are already recovered. Taking into
consideration, gravity of the offence, amount of the property involved and
..7/-
-- 6 of 7 --
Judgment 7 C.C. No.153/PW/2023
antecedents of the accused following order is passed.
ORDER
1) Accused Burhan Bashir Meman is convicted under section 248
(2) of The Code of Criminal Procedure 1973 for the offence punishable under
Section 380 of The Indian Penal Code 1860 and is sentenced to suffer Rigorous
Imprisonment of 06 (Six) months and to pay fine of Rs. 5,000/-(Rupees Five
Thousand only), in default of payment of fine the accused to further suffer
Rigorous Imprisonment for 07(Seven) days.
2) The period of detention undergone by the accused be given set off
as per Section 428 of The Code of Criminal Procedure 1973 against the term of
imprisonment imposed upon the accused.
3) Seized articles be given to the informant after appeal period.
Seized pendrive be destroyed by deleting the data stored in it as per law.
4) Copy of the judgment be given to the accused free of cost
forthwith.
(Dictated on computer and pronounced in open Court.)
Date:-19/06/2023. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 19/06/2023
Dictated on : 19/06/2023
Typed on : 19/06/2023
Signed on : 19/06/2023
vnh
../-
-- 7 of 7 --