Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C.No.739/PW/2022
MHMM180027492022 Received on : 16/04/2022
Registered on : 16/04/2022
Decided on : 03/12/2022
Duration : 00 Y. 07 M. 17 D.
Exh.No.- 08
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.739/PW/2022
b) The date of commission of
offence
: 02/03/2022
c) The name of the complainant if
any
: The State through Khar police
station. C.R.No.131/2022.
d) The name of the accused persons,
parentage and residence
: Rahul Ravindra Gurav
Age-30 Yrs.
Occupation - Nil,
R/o. R.No.201, Shivgan Chawl,
Gajdharbandh Road, Santacruz(W),
Mumbai
e) The offence complained of or
proved
: Under Section 457, 380 of the
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 : 03 /12/2022
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Judgment 2 C.C.No.739/PW/2022
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Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr. P.P.Khot
=====================================================
JUDGMENT
(Delivered on 03/12/2022)
1) The accused is charged for the offence punishable under section
457, 380 of the Indian Penal Code.
2) The case of prosecution in brief as under----
The informant Siraj Moinuddin Shaikh is a retired Asst. Commissioner of
Police. The informant is residing in a duplex alongwith his two sons and their
wives. On 02/03/2022 after 2.00 a.m. informant went to sleep alongwith his
family members. The younger son of informant Shoaib was sleeping at ground
floor and elder son Imtiyaz and his wife Sara were sleeping on upper floor. The
informant was sleeping in a bedroom at upper floor. At about 5.30 a.m. Sara
made phone call to the informant and informed that a thief has entered in the
house. The informant came down, prior to him his elder son Imtiyaz was also on
ground floor. When informant was coming down from upper floor one unknown
person jumped from the first floor on the shade of adjacent building and ran
away from the compound of that building. The son of informant and the
informant saw the thief while running away but he ran away by taking shelter of
dark at the compound of the building. The informant made phone call to the
Control Room. The informant found one mobile phone Apple 11 of blue colour,
wrist mens watch of Tissot Company, two perfume bottles of Varsache and C.K.
Company, 15 perfume bottles of different company, cufflinks of Rollex, Sorosky
and Cells Company, one wrist of Jess Company and Bolic Company, one bag of
blue colour and cash of Rs.25,000/- were stolen. By mentioning the description
of the person the informant lodged the report.
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Judgment 3 C.C.No.739/PW/2022
Informant lodged report at the Police Station that accused entered in the house
with the intention to commit theft.
3) On the report of the informant offence was registered vide crime
No.131/2022 punishable under section 457, 380 of Indian Penal Code against
the accused. During investigation accused was arrested and on the basis of
evidence collected charge-sheet is filed against the accused.
4) Charge is framed against the accused at Exh.02. The contents of
the charge were read over and explained to the accused to which the accused
pleaded not guilty and claimed to be tried. Plea of the accused was recorded at
Exh.03.
5) The prosecution has examined in all two witnesses, P.W.No.1 Siraj
Moinuddin Shaikh, informant (Exh.04) and P.W.No.2 Sachin Ramdas Trimukhe,
Investigation Officer (Exh.06). Statement of accused under Section 313(1)(b)
of Code of Criminal Procedure is recorded (Exh.07). The defence of accused is
of false implication in this case.
6) 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 02/03/2022 at about 05.30 hrs.
at 201/302, 4th Floor, Plot No.16, Union
Park, Khar(W), Mumbai committed
lurking house trespass by entering into the
house of the informant used as human
dwelling after the hour of sunset and before
the hour of sunrise in order to commit theft
and thereby committed an offence
punishable under Section 457 of Indian
Penal Code?
In the negative .
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Judgment 4 C.C.No.739/PW/2022
2] Whether the prosecution proved that
accused on the aforesaid date and place
committed theft of the articles worth
Rs.1,21,500/- of the informant from his
house used as human dwelling and thereby
committed an offence punishable under
Section 380 of Indian Penal Code?
In the negative .
3] What order? Accused is acquitted
R E A S O N S
AS TO POINT NO.1 AND 2 :
7) In order to prove the involvement of the accused evidence of
(P.W.1) Siraj Shaikh is relevant. As per version of (P.W.1) Siraj Shaikh he and
his son Imtiyaz saw that thief was trying to go out from the window, due to fear
he and his son not dare to caught hold him and he and his son saw the face,
clothes of that person. It is further deposed by (P.W.1) Siraj Shaikh that, that
person was having sack of blue colour of his grandson, they jumped from second
floor to first floor window and went down from garage and gate. About identity
of the accused, (P.W.1) Siraj Shaikh identified the accused as the same person to
whom he saw while going out from the window of his house.
8) It is admitted by (P.W.1) Siraj Shaikh that he did not receive his
stolen articles. The suggestions that he did not see the accused while committing
theft is admitted and he has not seen the accused is denied by (P.W.1) Siraj
Shaikh.
9) Though (P.W.2) Sachin Trimukhe deposed that accused was under
his custody in another case, the informant saw the accused and identified him but
did not depose how he came to know that accused is involved in the commission
of the offence of theft at the house of the informant.
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Judgment 5 C.C.No.739/PW/2022
10) As per prosecution case the informant saw the accused when he
jumped from first floor on the shade of adjacent building. In evidence (P.W.1)
Siraj Shaikh deposed that he saw the thief when he was trying to go out from the
window. The identification of the accused by the informant first time before the
Court is to be appreciated in view of the other circumstances on record. There is
no evidence that how Investigation Officer not linked about involvement of the
accused in the commission of the offence. The informant has improved his
version about the circumstances in which he saw the accused. If the accused is
involved in commission of the offence out of alleged stolen articles, at least one
article could have been recovered from the accused. The possibility of recovery
of alleged stolen articles is strong for the reason that accused is arrested within
five days of the incidence. All these circumstances appearing the evidence of
prosecution creates doubt about involvement of the accused in the commission of
the offence as well as identity of the accused by the informant first time before
the Court. Absence of link to establish circumstances points out the involvement
of the accused are not established beyond reasonable doubt. For these reasons it
is held that prosecution failed to prove the guilt of the accused beyond reasonable
doubt. Accordingly, I answer point No.1 and 2 in the negative and in answer to
point No.3 pass the following order :-
ORDER
1) The accused Rahul Ravindra Gurav is acquitted of the offence
punishable under Section 457, 380 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)
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Judgment 6 C.C.No.739/PW/2022
and to submit the report accordingly to this Court.
4) The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of the Code of Criminal Procedure for further compliance.
( Dictated and pronounced in open Court.)
Date:- 03/12/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai
Delivered on: 03/12/2022
Dictated on : 03/12/2022
Typed on : 03/12/2022
Signed on : 03/12/2022
vnh
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