Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.366/PW/2022
MHMM180008292022 Received on 11/02/2022
Registered on 11/02/2022
Decided on 02/05/2022
Duration 00 Y. 02 M. 21D.
Exh.No.11
Accused produced on Video Conference.
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. 366/PW/2022
b) The date of commission of
offence
:
20/12/2021
c) The name of the complainant if
any
: The State through Khar police
station. CR No.758/2021.
d) The name of the accused persons,
parentage and residence
: Sanket Santosh Ziman
Age – 30 years,
Occupation- Nil,
R/o. Room No.225, Omkar Sudhar
Samiti, Gajdharbandh, Santacruz,
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 acquitted .
h) The date of such order : 02/05/2022
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Judgment 2 C.C. No.366/PW/2022
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Learned counsel for Prosecution: APP Smt.M.F.Pakajade
Ld. Counsel for Accused : Adv. Mr. P.P.Khot
=====================================================
J U D G M E N T
(Delivered on 02/05/2022)
1) The above named accused is charged for the offence punishable
under sections 380 of Indian Penal Code.
The case of prosecution in short is as under: -
2) On 20/12/2021 at about 07.30 a.m. informant Mr. Manohar
Tulshiwas Lula went to a temple of Bramhanand Bhandar at Khar for prayers.
He kept his bag in temple. When he returned from temple he wanted to make a
call . At that time he found that the mobile phone of Vivo Company kept in his
bag was stolen. He taken the search of his mobile phone, however it was not
found to him. Thereafter he went to police station and lodged FIR. Accused was
arrested. FIR was registered. After completion of the investigation charge-sheet
is filed against the accused.
3) On the report of the informant offence was registered vide crime
No.758/2021 punishable under section 380 of Indian Penal Code against
accused. During investigation accused was arrested and on the basis of evidence
collected charge-sheet is filed against the accused under Section 380 of Indian
Penal Code.
4) Charge was framed against the accused at Exh.02. The contents of
the charge were explained to the accused in vernacular through video
conferencing to which the accused pleaded not guilty and claimed to be tried.
Plea of the accused was recorded at Exh.03.
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Judgment 3 C.C. No.366/PW/2022
5) The prosecution has examined in all three witness.
(P.W.No.1)Manohar Tulshivas Lulla, informant at (Exh.04), (P.W.No.2)
Vishwanath Parshuram Sawant, at (Exh.06) and (P.W.No.3) Deepak Ramesh
Kharade at (Exh.09).
6) 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.10. The
defence of the accused is of total denial and false implication. Heard Ld. APP and
Ld. Advocate for the accused.
7) 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
20/12/2021 at about 7.30 hrs. at Bramhanand
Bhandar, near Telephone Exchange, Khar(W),
Mumbai accused committed theft of Vivo
Company mobile handset of the informant
from Bramhanand temple and thereby
committed an offence punishable under
Section 380 of Indian Penal Code?
In the negative
2] What order? Accused is acquitted.
REASONS
AS TO POINT NOs. 1 AND 2 : -
8) Beginning with the informant (P.W.1) Manohar Lulla admitted the
contents of FIR as correct and deposed about stolen of his bag containing mobile
handset of Vivo Company from Bramhanand Bhandar Temple at Khar. It is seen
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Judgment 4 C.C. No.366/PW/2022
from FIR Exh.05 that it is lodged against unknown person.
9) To link the accused with the commission of theft of mobile handset
of the informant prosecution relied on circumstantial evidence. In chain of
circumstances prosecution strongly relied on disclosure and recovery statement
of the accused recorded by the Investigation Officer under Section 27 of Indian
Evidence Act.
10) As per evidence of (P.W.2) Vishwanath Sawant accused taken
them to one yellow colour dilapidated bungalow near Rajesh Khanna Garden
and taken out one plastic bag. From the said plastic bag two notes of Rs.100/-
and one black colour Vivo Company mobile handset was taken out by the
accused. Investigation Officer (P.W.3) Deepak Khandare deposed in
corroboration to (P.W.2) Vishwanath Sawant that accused taken them to a
bungalow of yellow colour near Rajesh Khanna Garden and taken out one
mobile handset of Vivo Company and cash of R.200/-. Both the witnesses
deposed that cash of Rs.200/- and mobile handset was seized in presence of
panchas.
11) As per evidence of (P.W.2) Vishwanath Sawant, yellow colour
bungalow was in a dilapidated condition. Deepak Khandare (P.W.3) has only
deposed that bungalow was of yellow colour but failed to utter a word about
condition of the bungalow. According to (P.W.2) Vishwanath Sawant accused
taken out one plastic bag containing two currency notes of Rs.100/- each and one
mobile handset of Vivo Company. Investigation Officer, Deepak Khandare is
silent about taking of one plastic bag by the accused from the said bungalow.
Both the witnesses failed to depose about presence of any person at the
bungalow, whether that bungalow was abandoned, whether anybody can be
allowed to enter into the said bungalow. As deposed by both the witnesses
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Judgment 5 C.C. No.366/PW/2022
accused taken them in a bungalow and taken out mobile handset and cash. Both
the witnesses failed to explain whether the alleged mobile handset and cash was
kept open in a bungalow or concealed under something. All this material
evidence should be clear, cogent and in corroboration to prove the alleged
recovery and discovery at the instance of the accused. A vague statement that
accused taken out mobile handset from the bungalow does not inspire confidence
to hold that the recovery was made at the instance of the accused.
12) The alleged recovery and discovery cannot be said to be proved by
the prosecution because of the evidence discussed above. The only link which
connects the accused with the theft of mobile handset is not proved beyond
reasonable doubt. On the basis of this evidence it is held that prosecution has
failed to prove the guilt of the accused. Accordingly Point No.1 and 2 are
recorded in the negative with the following order.
ORDER
1) The accused Sanket Santosh Ziman is acquitted of the offence
punishable under Section 380 of Indian Penal Code, 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 Phone be returned to its owner after appeal period.
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Judgment 6 C.C. No.366/PW/2022
5) The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of the Code of Criminal Procedure for further compliance.
6) Dictated on computer and pronounced on Video conference in open
Court.
Date:-02/05/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 02/05/2022
Dictated on : 02/05/2022
Typed on : 02/05/2022
Signed on : 02/05/2022
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