Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.1006/PW/2022
MHMM180044492022 Received on : 26/05/2022
Registered on : 26/05/2022
Decided on : 10/10/2022
Duration : 00 Y. 04 M. 14 D.
Exh.No.- 09
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.1006/PW/2022
b) The date of commission of
offence
: 31/03/2022
c) The name of the complainant if
any
: The State through Khar police
station. C.R.No.281/2022.
d) The name of the accused persons,
parentage and residence
: Kevin James Smith
Age – 49 years,
Occupation- Nil
R/o. Footpath beside Gurudwara,
beside Hotel Sunshine,Chimatpada,
Marol Naka, Andheri(E), Mumbai
Original Address- 9 Broms, Grove
Anthri, Leoful, L108 J.S.Road,
United Kingdom
e) The offence complained of or
proved
: Under Section 380 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.
h) The date of such order : 10/10/2022
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Judgment 2 C.C. No.1006/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
=====================================================
J U D G M E N T
(Delivered on 10/10/2022)
1) The accused is charged for the offence punishable under section
380 of Indian Penal Code, 1860 (For short 'Code').
The case of prosecution in short is as under: -
2) The Informant Smt. Vaidehi Vijay Borle is working in a imitation
jewellery shop at Khar(W), Mumbai. On 31/03/2022 at about 10.00 a.m.
informant came at the shop for a routine work. Informant was showing
jewellery to the customers and taking photographs in her mobile. At about 12.00
p.m. informant went to first floor of the shop to show ornaments by leaving her
mobile on the counter. At about 12.30 p.m. the informant returned at the counter
and found that her mobile handset was missing. Informant taken search of the
mobile phone but it was not found. Informant lodged report of the missing
mobile against unknown person at Police Station. On the basis of the report
lodged by the informant offence is registered vide Crime No.281/2022. The
accused was arrested. After completion of the investigation charge-sheet is filed
against the accused.
3) Charge is framed against the accused at Exh.02. The contents of
the charge were read over and explained to the accused in vernacular in Jail
Court to which he pleaded not guilty and claimed to be tried. Plea of the accused
is recorded at (Exh.03 ) .
4) The prosecution has examined in all two witnesses (P.W.No.1)
Vaidehi Vijay Borle, informant at (Exh.05) and (P.W.No.2) Deepak Ramesh
Kharade, Investigation Officer at (Exh.07).
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Judgment 3 C.C. No.1006/PW/2022
5) The statement of the accused under section 313(1)(b) of the Code
of Criminal Procedure, 1973 (for short the code) is recorded at (Exh.08). 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 the
accused on 31/03/2022 committed theft of
Redmi Company Mobile phone of the
informant, from shop M/s. Sukhi Imitation
Jewellery, Khar(W), Opp. K.F.C., Link Road,
Mumbai and thereby committed an offence
punishable under Section 380 of Indian Penal
Code?
No.
2] What order? Accused is acquitted
R E A S O N S
AS TO POINT NO.1 :
7) The burden is on the prosecution to prove that accused has
dishonestly taken away the mobile phone of the informant from the shop at
Khar(W). As per evidence of P.W.1 her mobile handset of MI Company of
Rs.10,000/- was stolen and she lodged FIR (Exh.6). It is deposed by (P.W.1)
Vaidehi Borle that she checked CCTV footage of the shop and saw that one
person was taking one mobile from the counter of the shop. At the time of
examination of (P.W.1) Vaidehi Borle accused was produced through Video
Conference and shown to the witness. (P.W.1) Vaidehi Borle identified the
accused as the same person to whom she saw in the CCTV footage and at Police
Station. The contents of the FIR (Exh.06) are admitted by the informant as
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Judgment 4 C.C. No.1006/PW/2022
correct. Suggestion given to the informant that she has identified the accused as
she was shown the accused at Police Station. Investigation Officer, Mr. Deepak
Kharade(P.W.2) deposed that accused was arrested during investigation of Crime
No.274/2022, during interrogation accused has not supported. After completion
of investigation charge-sheet is filed against the accused. One of the important
statement made by the (P.W.2) Deepak Kharade that he shown the photograph of
the accused to the informant.
8) On perusal of First Information Report (Exh.06), it reveals that
informant has not stated that she saw the accused while taking away her mobile
phone from the CCTV Footage at the shop. If the CCTV Footage as deposed,
available with the prosecution is not filed on record to link the accused with
theft of mobile handset. Investigation Officer has given evasive explanation that
accused has not co-operated hence, could not recover stolen mobile phone.
9) The prosecution failed to produce on record CCTV Footage as
deposed by P.W.1 Vaidehi Borle. The best evidence available with the
prosecution is withhold without any explanations. Investigation Officer failed to
recover the seized mobile phone from the accused during investigation. It can be
concluded that prosecution failed to establish the involvement of the accused in
the commission of the alleged offence. In absence of any reliable or cogent
evidence against the accused he cannot be held guilty for the offence with which
he is charged. For these reasons it is held that prosecution failed to establish the
guilt of the accused beyond reasonable doubt. Accordingly finding is recorded to
Point No.1 in the negative. Following order is passed.
ORDER
1) The accused Kevin James Smith is acquitted of the offence
punishable under Section 380 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
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Judgment 5 C.C. No.1006/PW/2022
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) The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of the Code of Criminal Procedure for further compliance.
5) Dictated and Pronounced in the open Court.
Date:-10/10/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 10/10/2022
Dictated on : 10/10/2022
Typed on : 10/10/2022
Signed on : 10/10/2022
vnh
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