Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment -1- C.C.No.765/PW/20124
MHMM180016752024 Received on : 29/01/2024
Registered on : 29/01/2024
Decided on : 16/05/2024
Duration : 00 Y. 03 M. 17 D.
Exh.No.-13
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.765/PW/2024
b) The date of commission of
offence
: 07/01/2024
c) The name of the complainant if
any
: The State through Khar police
station. C.R.No.20/2024.
d) The name of the accused persons,
parentage and residence
: Sunny Manikam Nadar @
Chunny, Age-32 Yrs.
Occupation - Nil,
R/o. Old Hanuman Nagar, Opp.
Saibaba Temple, Khardanda,
Khar(W), Mumbai-52
e) The offence complained of or
proved
: Under Section 379 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 : 16/05/2024
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Learned counsel for Prosecution: APP Shri. Kishor Patil for State
Ld. Counsel for Accused : Adv. Mr.P.P.Khot / Mr.R.S.Bhaisane
=====================================================
JUDGMENT
(Delivered on 16/05/2024)
1) The accused is charged for the offence punishable under section
379 of the Indian Penal Code,1860( For short 'Code').
2) The case of prosecution in brief is as under----
On 07/01/2024 at about 10.15 a.m. after morning walk the informant
sat on a platform behind Public Toilet at Carter Road. The informant kept his
mobile phone by his side on the platform and was removing shoes. At that
time, the accused came from behind picked up his mobile and started running
towards Khardanada. At that time one Beat Marshal of police station Khar
came there for patrolling. The Beat Marshal asked the informant why he is
shouting. The informant told the Beat Marshal about the incidence. The Beat
Marshal ran behind the accused and caught hold him. The informant and the
accused were taken to the Police Station, Khar by the Beat Marshal. The
accused disclosed his name. At police station personal search of the accused
was taken. The stolen mobile phone of the informant was found in the pocket
of the accused.
3) On the report of the informant offence was registered vide crime
No.20/2024 punishable under sections 379 of Indian Penal Code against
the accused. After completion of the investigation chargesheet is filed against
the accused.
4) The charge is framed against the accused at Exh.02. The
contents of the charge were read over and explained to the accused in
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vernacular to which 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 is recorded at Exh. 03.
5) The prosecution has examined in all three witnesses (P.W.No.1)
Pradeep Ganpat Tambe, informant (Exh.05), (P.W.No.2) Hanumant Jairam
Mokashi (Exh.07) and (P.W.03) Manik Narsingh Ghogare, Investigation
Officer (Exh.09). The statement of the accused under Section 313(1)(b) of
The Code of Criminal Procedure is recorded (Exh.12). The defence of the
accused is of false implication in this case.
6) Perused the record. Heard Ld. APP and Ld. Advocate for the
accused. 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 07/01/2024 at 10.15 hrs. at
Carter Road, Khar, Mumbai intending to
take dishonestly mobile phone of the
informant moved out of the possession of
the informant without his consent, thereby
committed an offence punishable under
Section 379 of Indian Penal Code?
Yes
2] What order? Accused is convicted
R E A S O N S
AS TO POINT NO.1 :
7) The burden is on the prosecution to prove that the accused has
dishonestly moved the mobile phone out of the possession of the informant. It
is seem from the evidence of (P.W.No.1) Pradeep Tambe that when he was
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seating on a platform, he bend down to remove shoes, accused came from
behind picked up his mobile phone kept on platform by his side and started
running. The informant also ran behind the accused. At that time (P.W.2)
Hanumant Mokashi came there on two wheeler, he chased the accused and
caught hold him. The accused alongwith the informant and mobile phone were
taken to the police station. (P.W.No.1) Pradeep Ganpat Tambe deposed that
he lodged the report at police station and admitted the contents and his
signature on FIR (Exh.6).
8) In cross examination the suggestion that he has not seen the face
of the accused, accused was not arrested by police and he is deposing false on
the say of police, is specifically denied by (P.W.No.1) Pradeep Ganpat
Tambe. The evidence of (P.W.No.1) Pradeep Ganpat Tambe is free from
contradictions and omissions. It is proved from the evidence of (P.W.No.1)
Pradeep Ganpat Tambe that it was the accused who picked up his mobile
phone kept on the platform by the side of the informant and later on the
accused was caught hold by (P.W.2) Hanumant Mokashi immediately.
9) According to (P.W.No.2) Hanumant Mokashi he was attached to
the Police Station Khar as a police constable and was on patrolling duty.
When he reached at Carter Road near public toilet one aged person was
running by shouting 'Chor-Chor' ('Thief-Theif'). On inquiry (P.W.No.2)
Hanumant Mokashi came to know that one person was running by taking
mobile phone of the informant. (P.W.No.2) Hanumant Mokashi parked his
vehicle by side of the road, ran behind the accused, caught hold him and was
taken to the police station. It is further deposed by the (P.W.No.2) Hanumant
Mokashi that at police station PSI Mr. Ghogare taken personal search of the
accused, one mobile phone was found in possession of the accused. On
asking name accused disclosed his name as Sunny Manikam Nadar. In cross
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examination (P.W.No.2) Hanumant Mokashi specifically denied the suggestion
that nothing was seized from the accused and the accused being habitual
offender is falsely implicated on the say of his senior.
10) The evidence of (P.W.No.2) Hanumant Mokashi is free from
contradictions and omissions. The evidence of (P.W.No.2) Hanumant
Mokashi is beyond the shadow of doubt that he caught hold the accused
alongwith the mobile phone and the mobile phone was seized during the
personal search of the accused at police station.
11) The Investigation Officer (P.W.03) Manik Narsingh Ghogare
deposed that he reduced into writing the report of the informant and registered
FIR (Exh.6). It is deposed by (P.W.03) Manik Narsingh Ghogare that personal
search of the accused was taken by him in presence of panchas, one mobile
phone of Redmi company was found in possession of the accused and
accordingly he prepared panchnama (Exh.10) in presence of panchas. In
cross-examination (P.W.03) Manik Narsingh Ghogare denied the suggestion
that no mobile phone was seized from the possession of the accused and the
accused was on the record of the police therefore panchanama was prepared at
police station by taking signatures of habitual panchas.
12) Ld. APP argued that the accused has been identified by the
informant and the witness who chased the accused and caught hold him. The
mobile handset of the informant was found in the possession of the accused.
The evidence of all the witnesses is clear and without any doubt that the
accused has stolen the mobile phone of the informant. The accused is liable to
be convicted. This argument is countered by Ld. Advocate for the accused by
submitting that there are material discrepancies in the prosecution witnesses.
(P.W.No.1) Pradeep Ganpat Tambe deposed that (P.W.2) Hanumant Mokashi
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chased the accused on his two wheeler while (P.W.No.2) Hanumant Mokashi
deposed that he chased the accused by parking his vehicle. It is further argued
by the Ld. Advocate for the accused that no independent witnesses are
examined and panchnama is not proved due to non examination of the panch
witness.
13) As pointed out by the Ld. Advocate for the accused
inconsistency in the evidence of the prosecution witnesses in respect of the
manner in which (P.W.No.2) Hanumant Mokashi chased the accused is not
material considering the other substantial evidence of the witnesses. Both
witnesses (P.W.No.1) Pradeep Tambe and (P.W.No.2) Hanumant Mokashi
specifically identified the person who picked up the mobile out of the
possession of the informant and ran away. The evidence of (P.W.3) Manik
Ghogare is clear and consistent in respect of the seizure of the mobile phone
from the possession of the accused. The defence raised by the accused that he
is falsely implicated as he is habitual offender on the record of the police is not
probable for the reason that the informant (P.W.1) Pradeep Tambe has nothing
to do either with police or accused. The informant has no reason either to
support to the police or to falsely implicate the accused.
14) It is seem from the evidence of the (P.W.1) Pradeep Tambe
that the incidence has taken place on 07/01/2024 at about 10.00 a.m.. The FIR
(Exh.6) came to be registered on 07/01/2024 at about 12.44 p.m. of which
information was received at 11.05 a.m.. This evidence clearly establishes that
the FIR was lodged immediately within a period of one hour from the time of
incidence. This evidence supports the case of prosecution that it is the accused
who has taken mobile phone from the possession of the informant dishonestly
and in order to take it away the accused started running.
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15) The evidence of prosecution witnesses is consistent, cogent and
reliable in respect of the identity of the accused and seizure of mobile phone
of the informant from the possession of the accused. The accused failed to
explain how the seized mobile phone came into his possession. The seized
mobile phone has been identified by the informant at the police station. The
FIR is lodged promptly within a period of one hour from the time of
commission of the offence. The accused is arrested with the stolen mobile
phone and by police constable immediately after the taking away of the
mobile phone of the informant. On the basis of evidence on record there is no
shadow of doubt to held that, the accused has committed theft of mobile phone
of the informant. For these reasons the accused is held guilty for the offence
punishable under section 379 of Indian Penal Code.
16) Heard the accused in person and his Ld. Advocate. It is
submitted by the accused that he is having aged mother suffering from
physiological problem. There is no one to look after her. The accused is in
custody since last about four and half months. The accused be awarded with
imprisonment which he has already undergone. It is submitted by Ld.
Advocate for accused that leniency be shown to the accused in awarding
sentence and submitted the same as submitted by the accused. Ld. A.P.P.
submitted that it is a matter of record that the accused is habitual and on the
record of police. There are number of cases registered against the accused of
same nature since 2009. The accused be awarded with maximum sentence of
imprisonment together with fine.
17) On perusal of the cross-examination of the witnesses the defence
raised by the accused that he is on the record of the police is falsely implicated
in this case. In First Information Report also it is specifically mentioned that
the accused was identified as the accused on police record. This evidence is
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sufficient to held that the accused is associated with criminal antecedents and
is on record of the police. The accused has without fear of anybody or
anything committed theft of a mobile phone of a senior citizen in the day light.
This shows the gravity of the offence and the well planned commission of the
offence by the accused to commit theft of the mobile phone. It reveals from
the circumstances that the accused has no fear of law in committing offence of
theft. The aggravating circumstances are more dominant than mitigating
circumstances on record. The accused, for these reasons, is not entitled to
benefit of Probation of Offenders Act or the punishment which he has already
undergone. The informant has got his mobile phone immediately. For this
reason award of compensation will not be justified.
18) Taking into consideration the time and manner in which the
offence has been committed by the accused, the age of the informant and the
antecedents of the accused accused is liable to be convicted for imprisonment
of one year and fine of Rs.5,000/-(Rupees Five Thousand only). Following
order is passed.
O R D E R
1. The accused Sunny Manikam Nadar @ Chunny is convicted
for the offence punishable under Section 379 of The Indian Penal Code vide
Section 248(2) of The Code of Criminal Procedure and sentenced to suffer
Rigorous Imprisonment of 01(one) year and to pay fine of Rs.5,000/-(Rupees
Five Thousand only), in default of payment fine the accused to suffer
Rigorous Imprisonment of 15(Fifteen) days.
2. The accused is in Judicial custody since 08/01/2024 till today.
The period already undergone by the accused shall be given set off under
Section 428(2) of The Code of Criminal Procedure.
3. The seized mobile phone be given to the informant after the
appeal period.
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4. The copy of the Judgment be forwarded to District Magistrate
vide Sec.365 of the Code of Criminal Procedure for further compliance.
5. The copy of the Judgment be given free of cost to the accused.
( Dictated and pronounced in open Court.)
Date:-16/05/2024. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai
vnh
Delivered on: 16/05/2024
Dictated on : 16/05/2024
Typed on : 16/05/2024
Signed on : 16/05/2024
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