Final Order 1

Order Details: Copy of Judgment
Pdf Text: ..1.. C.C. No. 200/PW/2018
Exh.
Received on : 05.02.2018
Decided on : 06.08.2018
Duration : 00 06 00
Y M D
CNR MHMM180010572018
IN THE COURT OF ADDL.CHIEF METROPOITAN MAGISTRATE,
9TH COURT, BANDRA, MUMBAI
JUDGMENT U/SEC. 355 OF THE CR. P. C.
(a) Serial number of the case : 200/PW/2018
(b) Date of commission of the offence : 09.12.2017
(c) Name of the complainant, if any, : The State (Khar Police
Station,C.R.No.492/2017)
(d) Name of the accused person his,
parentage and residence
: Mohammed Alam
Mohammed Hussain Khan,
27 yrs R/at :Omkar Gulli,
Gajdhar Band, Santactruz
(E), Mumbai.
(e) Offence complained of or proved : U/section 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. : 06/08/2018
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 this 6th day of August, 2018)
1) Accused is prosecuted for the offence punishable under
sections 379 of IPC.
2) Facts of the prosecution case in brief are as under :
It is the case of the prosecution that informant/complainant
used to ply auto rickshaw No. MH03BN3985 on rental basis
belonging to one Prabhumandal. On 09.12.2017 at about 09.00 p.m
complainant parked his autorickshaw in front of Gujarathi School at
16th Road, Khar (W), Mumbai as its two tyres were damaged. On
10.12.2017 at about 06.00 hours when he came to the parking place ,
he did not find his autorickshaw. So, he searched of it, but it could not
be traced out. On this, complainant confirmed that autorickshaw was
stolen. Therefore, he lodged report with police station, Khar.
3) During investigation of the present crime it was revealed that
on 30.12.2017 the presentwanted accused was about to come to
Hasnabad Lane, Khar (W), Mumbai. Accordingly police laid trap and
when the present accused came at Hasnabad Lane Municipal School
with said stolen autorickshaw, police arrested him in presence of two
panchas and seized the autorickshaw under panchanama. Investigation
revealed the guilt of the accused for commission of offence of theft of
autorickshaw, therefore, police filed chargesheet against the accused.
4) Since 30.12.2017 accused is in custody. My ld. Predecessor
framed charge against the accused for the offence punishable u/sec.
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379 IPC. It was read over and explained to the accused in vernacular,
to which he pleaded not guilty and claimed for trial. Defence of the
accused u/sec. 313 of Cr.P.C is of total denial and false implication in
the case.
5) 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 the accused
committed theft of autorickshaw No. MH03BN
3985 of informant Manoj Soni by dishonestly
taking it away without his consent and thereby
committed an offence of theft ?
In the
affirmative.
ii) What order ? As per final
order
REASONS
5) In order to prove the guilt of accused, prosecution has
examined three witnesses, viz. Panch witness Krishna Hari Gobre
(P.W.1) at Exh. 5, Complainant Manoj Mahavir Soni (P.W.2) at Exh. 7
and Investigating OfficerRajkumar Chandrakant Powar (P.w.3) at
Exh.9. Apart from the oral evidence of above witnesses, prosecution
has relied on complaint at Exh.8 and seizure panchanama at Exh. 6.
6) I have heard both sides at length. I have carefully gone
through the oral and documentary evidence available on record. Now I
scan oral and documentary evidence available on record.
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As to point no. i):
7) Evidence of complainant Manoj (P.W.1) goes to show that
incident happened on 9.12.2017 in front of Gujarati School, 16th Road,
Khar. On the next day at about 6 a.m. he came to the spot and found
that his autorickshaw bearing registration no. MH03.BN3985 was
missing. After search he came to know that his autorickshaw was
stolen, therefore, he lodged report as per Exh.8. Said report was filed
against unknown person, therefore, complainant Manoj was not cross
examined. However, on the basis of evidence of complainant Manoj
prosecution succeeded to prove contents of FIR at Exh. 8 and theft of
autorickshaw by someone.
8) As per the story of prosecution, police apprehended the
accused along with autorickshaw in presence of panchas. This fact is
supported by independent and panch witness Krishna (P.W.1). His
evidence discloses that the accused was in possession of autorickshaw
bearing registration no. MH03BN3985. Police seized rickshaw from
the possession of the accused and prepared seizure panchanama in his
presence as per Exh. 6. He denied that he is a habitual panch. He
denied the defence of accused that no autorickshaw was in possession
of accused. From the evidence of Krishna (P.W.1) it is proved that
accused was in possession of stolen autorickshaw. Accused failed to
give explanation about possession of stolen autorickshaw. Therefore,
adverse inference needs to be drawn against accused.
9) Similarly, Investigating OfficerRajkumar (P.W.3) deposed
that he arrested the accused red handed with autorickshaw. He
prepared seizure panchanama in presence of panchas. Thus, Rajkumar
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(P.W.2) proved contents of seizure panchanama and seizure of
autorickshaw from the possession of accused.
10) Considering oral and documentary evidence on record, it is
crystal clear that autorickshaw of complainant was stolen and
Investigating OfficerRajkumar (P.W.3) caught hold the accused red
handed along with stolen autorickshaw and prepared seizure
panchanama in presence of Krishna (P.W.1). Nothing came on record
to disbelieve testimony of prosecution witnesses. The prosecution has
proved offence 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.
11) 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 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 Mohammed Alam Mohammed Hussain Khan is
convicted under section 248(2) of Code of Criminal Procedure for the
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offence punishable under section 379 of Indian Penal Code and
sentenced to suffer rigorous imprisonment for the period, which he has
already undergone 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. autorickshaw be returned to the complainant after
the appeal period is over, or suprutnama, 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 : 06.08.2018 ( S. K. Mungilwar)
Transcribed on : 06.08.2018 Addl. Chief Metropolitan Magistrate,
Signed on : 06.08.2018 9th Court, Bandra, Mumbai.
Lsb/
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