Final Order 1

Order Details: Copy of Judgment
Pdf Text: -- 1 -- C.C. No. 676/PW/2018
Presented on : 27/04/2018
Registered on : 27/04/2018
Decided on : 04/01/2019
Duration : 0 Y. 08 M. 07 D
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
12TH COURT, BANDRA, MUMBAI.
(Presided over by S. R. Sharma)
CNR NO. MHMM180055062018
Exh. no.
(a) The Serial No. of the Case : 676/PW/2018
(C. R. No.49/2018)
(b) The date of the commission : 29/01/2018
of the offence
(c) The name of the complainant, : The State ( Dharavi Police
if any Station, Mumbai.)
(d) The name of the accused : Ashraf Akbar Baig
persons Age : 24 yrs.
R/o : AKG Nagar, above Mirza
Communication, 60ft road,
Dharavi, Mumbai.
(e) The offence complained of : U/sec. 457, 380 of the
or proved Indian Penal Code.
(f) The plea of the accused : The accused pleaded not guilty
(g) Final Order : The accused is acquitted.
(h) The date of such order : 04/01/2019
A.P.P. A. H. Nanadgiri for State.
Advocate D. S. Prajapati for accused.
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J U D G M E N T
( Delivered on 04th day of January 2019 )
Charge has been framed against the accused for the
offence punishable under sections 457 and 380 of the Indian Penal
Code vide Exh.2 to which he pleaded not guilty and claimed to be
tried vide his plea Exh.3. Statement under section 313 of the
Code of Criminal Procedure came to be dispensed with.
2] The case of prosecution is that the accused committed
house breaking after sunset and before sunrise and committed
theft of gold ornaments at the house of the informant. In this
regard the prosecution has examined the informant Kajal as P.W.1
at Exh.4.
3] It has come in the testimony of Kajal (P.W.1) that the
incident had occurred on 29/01/2018 at afternoon 03.00 p.m. at
her dwelling house which is at Mahim within premises which have
been rented out by her. She deposed that she has left in morning
for work and returned back in evening as always. She continued
that on her returned, she saw that her house had been broken
into. She elaborated that entire jewellery including mangalsutra,
gold chain, earrings and other jewllery items had been stolen. She
added that she had lodged report (Exh.5). She enunciated that
out of stolen property eventually she was able to receive merely
mangalsutra and earrings.
4] From the cross examination to which Kajal (P.W.1) has
been subject to it is evident that the occurrence of incident is
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challenged. It is pointed out that Kajal (P.W.1) is unable to recall
the exact date when her statement came to be recorded. It is
submitted that the bills of ornaments purported to be stolen are
not on record.
5] In this matter it is not the case of defence that the
accused and Kajal (P.W.1) are acquainted with one another which
might render probable their defence of she embroiling him in a
false case. Nothing has been placed on record by defence which
would go to show the motive for which she could be propelled for
the same. Per contra, report (Exh.5) irradiated that after
occurring of incident on 29/01/2018 police machinery was set in
motion by her with promptitude on 30/01/2018 which obliterates
the allegations of false involvement. From the contents of report
(Exh.5) reiterated by her in her testimony it is established that
house breaking and theft did occur at her house.
6] Residential contentious issue pertains to identity of the
accused standing trial to be the one who had committed the same.
Kajal (P.W.1) stated that she could identity the accused.
However, she acquiesced that he had been shown to her as being
the culprit by police. Suggestion in that regard put up to her by
the defence is also accorded by her. In any case, her version itself
manifests that she has no direct ocular knowledge about the
identity of culprit.
7] In view of above, the nexus of the accused with the
crime could have been shown through facet of recovery, seizure.
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But in this matter, the prosecution has failed to secure presence of
witness whereby it could be established that the stolen property
had come to be recovered from the conscious possession of the
accused or at his instance whereby imputability of the accused
could be deduced. Thus, even though commission of offence is
established culpability of the accused therein is not proved.
8] The burden of proof rests on prosecution to establish
the guilt of the accused beyond reasonable doubt and a conviction
is not warranted unless the burden is sustained. A conviction
cannot be sustained on the basis of conjecture, suspicion, a mere
belief in the accused's guilt or even a strong probability of guilt.
Prosecution's evidence has lacunae and is riddled with defects. So
far as seized muddemal property is concerned, said is entitled to
be returned to Kajal (P.W.1) who has stated also deposed to it to
being owned by her both in report (Exh.5) and her testimony
(Exh.4) I, therefore, ordain as follows :
O R D E R
1 The accused is hereby acquitted of the offences punishable
under section 457, 380 of the Indian Penal Code vide
section 248(1) of the Code of Criminal Procedure.
2 The accused being an under trial prisoner be set at liberty
forthwith if not required in any other case or crime.
Inform accordingly.
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3 The accused to execute bail bond of Rs. 5,000/ (Rs. Five
Thousand only) with surety of like amount vide section
437(A) of Criminal Procedure Code.
4 The seized muddemal property be released in favour of its
owner, and if already return to its owner, be retained in
her possession and supratnama bond shall stand cancelled,
after appeal period is over.
sd/
Date: 04/01/2019
(Shruti R. Sharma)
Metropolitan Magistrate,
12th Court, Bandra, Mumbai.
Dictated on : 04/01/2019
Transcribed on : 04/01/2019
checked on : 04/01/2019
Signed on : 04/01/2019
sd/
(Shruti R. Sharma)
Metropolitan Magistrate,
12th Court, Bandra, Mumbai.
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