Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment -- 1 -- C.C.NO.1413/PW/2019
MHMM180031352021 Received on 19/07/2021
Registered on 19/07/2021
Decided on 03/03/2022
Duration 00 Y. 07 M. 14 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.1413/PW/2021
b) The date of commission of
offence
: 20/05/2021
c) The name of the complainant if
any
: The State through Khar police
station. CR No.438/2021
d) The name of the accused persons,
parentage and residence
: Virappan Virswami Harijan
Age- 24 Yrs.
Occupation- Nil
R/o. Ram Lakhan Patel Chawl,
Sakharam Buva Patil Marg,
Gazdharbandh, Santacruz(W),
Mumbai.
e) The offence complained of or
proved
: Under section 380, 34 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
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Judgment -- 2 -- C.C.NO.1413/PW/2019
h) The date of such order : 03/03/2022
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Learned counsel for Prosecution: APP Smt.M.F. Pakajade for State
Ld. Counsel for Accused : Adv. Mr.D.S.Prajapati
=====================================================
JUDGMENT
(Delivered on 03/03/2022)
1) The above named accused is charge-sheeted for the offence
punishable under section 380, 34 of Indian Penal Code.
The case of prosecution in short is as under: -
2) Informant Hyari Mathes D'souza is a General Manager in a Khar
Gymkhana. In Gymkhana there are four restaurants. The said Gymkhana is
closed due to the lockdown. All the articles and utensils of catering are kept in
the Gymkhana. On 20/05/2021 at about 12.00 p.m. informant got a phone call
from the Manager of Gymkhana Mr. Dinesh Gondhali that catering articles of
Jamun Hospitality has been stolen from the Gymkhana. The informant reached
the Gymkhana. The informant checked the CCTV footage. In the said CCTV
footage informant found that at about 4.35 a.m. on 20/05/2021 two unknown
persons entered in the Gymkhana and were stealing the utensils and other articles
of catering. The informant found that four steel tables, four old utensils and two
taps are stolen. Accordingly informant lodged the report of the incidence to the
Police Station. A Crime vide C.R.No.438/2021 was registered. After completion
of investigation Investigating Officer submitted charge-sheet in the Court against
the accused.
3) My Ld. Predecessor framed charge against the accused vide
Exh.03. The contents of the charge were read over and explained to the accused
in vernacular through video conferencing to which accused pleaded not guilty
and claimed to be tried. Plea of the accused was recorded at Exh.04.
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Judgment -- 3 -- C.C.NO.1413/PW/2019
4) The prosecution has examined only one witness i.e. P.W.No.1
Hyari Makaz D'souza, informant at Exh.05.
5) The statement of accused under section 313(1)(b) of the Code of
Criminal Procedure, 1973 (for short the code) is recorded at Exh.07. The
defence of the accused is that of total denial and false implication. Heard Ld.
APP and Ld. Advocate for the accused.
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 accused
on 20.05.2021 at about 4.35 hrs. to 13.45
hrs. at Khar Gymkhana, 15th Road, Khar(W),
Mumbai in furtherance of common intention
with absconding accused namely Ganeshan
committed theft of the articles of the
informant Hyari D'souza by entering in Khar
Gymkhana used for custody of the property
thereby committed an offence punishable
under section 380 r.w.34 of the Indian Penal
Code?
In the negative
2] What order? Accused is acquitted.
REASONS
AS TO POINT NOs. 1 AND 2 : -
7) All the points are taken together for discussion to maintain brevity.
Prosecution has examined P.W.1 Hyari D'souza, informant at Exh.05.
8) It is seen from the evidence of P.W.No.1 Hyari Makaz D'souza that
on 20/05/2021 Supervisor Dinesh Gondhali informed him on phone that some
articles of catering are stolen from the canteen of Gymkhana, on checking the
articles he found that some catering articles were missing. On checking CCTV
footage he found that one person jumped from the wall of Gymkhana and one
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Judgment -- 4 -- C.C.NO.1413/PW/2019
person was standing outside the compound wall. One person is giving articles to
the person who wa standing outside the compound wall. P.W.1 Hyari D'souza
admitted the contents of FIR Exh.06 as true and correct.
9) As per prosecution accused stolen four tables, utensils and two taps.
The informant i.e. P.W.1 Hyari D'souza failed to depose that what articles were
stolen which are used in the catering. The prosecution has strongly relied on
seizure of two taps at the instance of the accused. P.W.1 Hyari D'souza nowhere
deposed that two taps were stolen from the Gymkhana. The evidence of P.W.1
Hyari D'souza is that articles of catering were stolen. The taps allegedly seized
are not the articles of the catering. No evidence is on record linking the accused
with the commission of offence alleged by the prosecution. In absence of clear
and convincing evidence on record it is held that prosecution failed to establish
the guilt of the accused beyond reasonable doubt. Accordingly, Point No.1 and
2 are recorded in negative with the following order.
ORDER
1) The accused Virappan Virswami Harijan @ Tambi, is acquitted of
the offence punishable under Section 380 r.w. 34 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 two Tap be returned to its original owner after the appeal
period.
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Judgment -- 5 -- C.C.NO.1413/PW/2019
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 and pronounced in the open court.
Date:03/03/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 03/03/2022
Dictated on : 03/03/2022
Typed on : 03/03/2022
Signed on : 03/03/2022
vnh
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