Final Order 1

Order Details: Copy of Judgment
Pdf Text: -- 1 -- C.C.No.364/PW/2018
MHMM180025212018 Received on : 26/02/2018
Registered on : 05/03/2018
Decided on : 02/04/2025
Duration : 07 Y. 00 M. 27 D.
Exh.No.- 12
IN THE COURT OF ADDL. CHIEF JUDICIAL MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
(Presided over by A.K.Awari )
J U D G M E N T
(As per Section 355 of Code of Criminal Procedure)
a) The Serial number of the case : C.C. No.364/PW/2018
b) The date of commission of
offence
: In between the period from
07/01/2017 to 09/01/2017
c) The name of the complainant if
any
: The State through Khar Police
Station, C.R.No.92/2017
d) The name of the accused
persons, parentage and
residence
: Swapnil Chandrakant Gawade
Age – 37 years,
Occupation- Service,
R/o.5A/135, 136, Hindustan Co-
Op. Housing Society, 25th Road,
Bandra(W), Mumbai
0e
)
The offence complained of or
proved
: Under Section 380 of the Indian
Penal Code.
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 : The accused is acquitted.
h) The date of such order : 02/04/2025
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Learned counsel for Prosecution : APP Smt. M.F.Pakjade &
Shri.Kishor Patil for the State
Ld. Counsel for Accused : Adv.Mr. Mahesh Patil and Mr. Thakur
& Associates for accused
=====================================
J U D G M E N T
( Delivered on 02.04.2025 )
1. The accused is charged with the offence punishable under
Sections 380 of the Indian Penal Code.
2. The case of prosecution in nutshell is as under----
That on 07/01/2017 as the informant Rohan Gawade had to
go to Nagpur for his office work, he kept his gold jewelry and his wife's
gold earring in the locker in the cupboard. Since the said cupboard is
belonged to the friend of the informant, his passport and other
documents were kept in the locker. Thereafter the informant left for his
work at Nagpur. After finishing his work from Nagpur, he returned to
Mumbai on 09/01/2017 at around 8.00 a.m. as the informant want to
go to the temple at around 9.30 a.m. and also he had to wear his
ornaments, he opened the locker of the cupboard, but he could not
found his gold ornaments i.e. gold chain, bracelet, gold earring and
gold locket. The informant inquired about the ornaments to his friend
Swapnil Gawade, however he told that he know nothing about it and
give evasive answers. The informant taken search of his ornaments in
his room and bag, however could not found the same. When the
informant asked his friend Swapnil Gawade to check his bag, he
refused to check his bag. The informant searched for his ornaments till
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11/02/2017 however, could not found the same. Hence, on suspicion
the informant lodged the report to Khar Police Station .
3. On the report of the informant, Police Station, Khar,
Mumbai registered Crime No.92/2017 for the offences punishable
under Under Section 380 of the Indian Penal Code and the investigation
was handed over to API Shri. Lonkar( I.O.). Further, he prepared spot
panchanama in presence of panchas. After completion of investigation,
he filed charge-sheet.
4. My Ld. Predecessor explained and read over the particulars
of the offence to the accused in vernacular. Accused pleaded not
guilty and claimed to be tried. Plea of the accused was recorded
below ( Exh.03).
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 proves that in
between the period from 07/01/2017 to
09/01/2017, at 7.00 hrs. at Kamal Kunj, 2nd
Floor, R.No.201, 13th and 18th Road,
Khar(W), Mumbai committed theft of gold
ornaments worth Rs.54,000/- kept in the
locker of the cupboard in the house of the
informant used as human dewlling ,thereby
committed an offence punishable under
Section 380 of the Indian Penal Code?
No.
2] What order? Accused is acquitted.
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R E A S O N S
6. The prosecution has examined in all four witnesses. Rohan
Maheshwar Gawade (Informant) at Exh.04, Pandurang Babaso Lonkar
(I.O.) at Exh.06, Chandrakant Appaji Gawade (P.W.3) at Exh.09, and
Chetna Rohan Gawade (P.W.4) at Exh.10. Statement of the accused
under Section 313 of Cr.P.C. is recorded at Exh.11. The defence of the
accused is of total denial. Heard Ld.A.P.P. for the State and Ld. Counsel
for the accused.
AS TO POINT NO.1 :
7. It is the main charge against the accused in respect of
offence punishable under Section 380 of the Indian Penal Code. The
sine qua non for the abovesaid offence is that there should be theft in
any building, tent or vessel used as a human dwelling or used for the
custody of the property.
8. Indisputably, Rohan(Informant) and Chetna(P.W.4) are
husband and wife. Here the theory of prosecution reveals that the
accused was a friend of the informant’s husband. After their marriage,
they started residing in the flat alongwith the accused for few days. On
07/01/2017 the informant went to Nagpur and came back on
09/01/2017. Chetna (P.W.4) had kept her ornaments in the cupboard.
When the informant checked ornaments he did not find it in the
cupboard. In fact, the accused had asked for the keys of the cupboard
as he was in need of his passport. He told him where the keys were
kept. The accused while taking the passport, took away one gold ring
of 05 grams. , one bracelet of 20 grams and a gold chain alongwith gold
pendant. He lodged the FIR(Exh.05).
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9. API Lonkar( P.W.2) registered C.R.No.92/2017 on the basis
of report (Exh.05). He arrested the accused. After his arrest, the father
of the accused produced the ornaments of worth Rs.54,000/- and thus
he prepared seizure panchanama (Exh.07).
10. Chandrakant (P.W.3) is the father of accused who testified
that on 03/03/2017 he found one box containing gold ornaments in the
locker of the cupboard. The keys were with Chetna (P.W.4) and with
the accused. The accused and Rohan(Informant) were searching the
gold ornaments. When he showed the ornaments to the accused he
said, it belongs to Rohan, the informant. Hence, he deposited the same
to the Police Station. Chetna (P.W.4) supported the informant’s version
in totality.
11. During the cross-examination it can be gathered that the
accused and the informant with Chetna (P.W.4) were staying together.
Admittedly, the keys of the cupboard were with both, the informant and
the accused. Even the said cupboard was used by both. There was
some dispute between informant and accused on account of vacating
the Flat. The question arises here is the incident took place around on
07/01/2017 to 09/01/2017. But the report appears to have been
lodged on 28/02/2017. The said inordinate delay is nowhere explained
by the prosecution.
12. It is worth to note here that, the stolen property is not
recovered from the accused. As per the prosecution, on 03/03/2017
the accused was arrested at 17.15 p.m. and the production panchanama
(Exh.06) was done on 19.30 p.m.. There is no disclosure statement as
such and corresponding discovery as contemplated under Section 27 of
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Indian Evidence Act. It is seen from the record that while the accused
was in custody the said property was produced by his father
Chandrakant (P.W.3) to the police. But the evidence of Chandrakant
(P.W.3) depicts different story that the accused and Rohan( informant)
were searching for the ornaments. When he showed the said ornaments
to the accused, the accused stated that those belong to the informant
and thus he deposited it in the police station. As such when the
ornaments were revealed, the informant and the accused were together
and Chandrakant deposited it to the Police Station. When they were
together, the question arises as to when he was taken into custody and
how his disclosure statement as per Section 27 of Indian Evidence Act
was recorded. As such the clear doubt has been created over the case
of the prosecution as regards the discovery of the stolen property from
the accused. In such circumstances, the delay in lodging of FIR and the
suspicion over the seizure of stolen property has somewhat fatalized the
case of the prosecution as the said aspects are not worthy of credence.
Hence, this Court is not inclined to accept the prosecution evidence and
thus, the benefit will have to be given to the accused. Hence, I answer
Point No.1 in the negative.
AS TO POINT NO.2 :
13. In the light of above said observations, I am of the firm
view that the accused will have to be acquitted. In the result, I pass the
following order.
O R D E R
1. Accused Swapnil Chandrakant Gawde is acquitted of the
offence punishable under Section 380 of the Indian Penal Code
vide
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Section 248(1) of the Code of Criminal Procedure.
2. His bail bonds stands cancelled and cash sureties if any, be
refunded to the accused.
3. Seized gold Chian weighing 12 grams, gold bracelet
weighing 2 Tolas, gold finger ring weighting 5 grams and gold locket
weighing 3 grams be returned to its rightful owner after the appeal
period.
4. The accused to furnish bail bonds in compliance of Section
437(A) of the Code of Criminal Procedure.
5. The copy of the Judgment be forwarded to the District
Magistrate vide Sec.365 of the Code of Criminal Procedure for further
compliance.
( Dictated and Pronounced in open Court. )
Date:-02/04/2025. ( A. K. Awari )
Addl.Chief Judicial Magistrate,
09th Court, Bandra, Mumbai
Dictated on : 02/04/2025
Typed on : 02/04/2025
Signed on : 02/04/2025
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