Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C.No.1210/PW/2022
MHMM180061552022 Received on : 30/06/2022
Registered on : 30/06/2022
Decided on : 25/11/2022
Duration : 00 Y. 05 M. 25 D.
Exh.No.- 11
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.1210/PW/2022
b) The date of commission of
offence
: 05/05/2022
c) The name of the complainant if
any
: The State through Khar police
station. C.R.No.587/2022.
d) The name of the accused persons,
parentage and residence
: Salim Ali Qureshi
Age-26 Yrs.
Occupation - Service,
R/o. Ram Mandir, Natraj Catering
Godown, Khardanda, Khar(W),
Mumbai
e) The offence complained of or
proved
: Under Section 454, 511 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 convicted for the
offence punishable under Section
454 of the Indian Penal Code.
h) The date of such order : 25/11/2022
..2/-
-- 1 of 7 --
Judgment 2 C.C.No.1210/PW/2022
=====================================================
Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr. Tushar Patil
=====================================================
JUDGMENT
(Delivered on 24/11/2022)
1) The accused is charged for the offence punishable under section
454, 511 of the Indian Penal Code.
2) The case of prosecution in brief as under----
Informant Kimbarli Jude Parera is residing at 19 Rajan, in front of
Carter Road, Ground Floor, beside Gyanik Building, Bandra(W), Mumbai. On
05/05/2022 at about 3.00 p.m. informant was on ground floor of her house.
There is a wooden floor on first floor. Informant heard sound of breaking of
glass and falling of something on the ground from first floor. Informant made
phone call to her neighbour friend Sharlin Parera and called at her house.
Informant and her friend went at first floor and they saw that both the windows
are opened, glass of ventilator was broken and grills fixed to the ventilator was
removed. They found the shadow of existence of some person. Then informant
and her friend came down, called her uncle Yorikak Fonseka. Then police were
called. At 4.45 p.m. police came, they went on first floor, opened the door with
the help of key. They found one person in the room at first floor. That person
was taken in the custody. That person told his name as Salim Ali Qureshi.
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.587/2022 punishable under section 454, 511 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.
..3/-
-- 2 of 7 --
Judgment 3 C.C.No.1210/PW/2022
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. Defence of the accused is of total
denial. Plea of the accused was recorded at Exh.03.
5) The prosecution has examined in all three witnesses, P.W.No.1
Kimbarli Jude Parera, informant ( Exh.05), P.W.No.2 Sharlin Saviyara Parera,
friend of informant (Exh.07) and P.W.No.3 Santosh Keshav Pawar who
registered offence and prepared panchanama at (Exh.08). Statement of accused
under Section 313(1)(b) of Code of Criminal Procedure is recorded (Exh.10 ).
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 05/05/2022 at about 15.00 to
16.45 hrs. at Ram Mandir, Natraj Catering,
Khardanda, Khar(W) Mumbai committed
lurking house trespass by entering into the
house of the uncle of the informant used as
human dwelling in possession of the
informant in order to committing of any
offence punishable with imprisonment and
thereby committed an offence punishable
under Section 454 of Indian Penal Code?
In the affirmative.
2] Whether the prosecution proved that
accused on the aforesaid date and place
attempted to commit the offence of theft
after committing lurking house trespass in
above said house of the uncle of the
informant used as human dwelling and
thereby committed an offence punishable
under Section 380 r.w. 511 of Indian Penal
Code?
In the negative.
..4/-
-- 3 of 7 --
Judgment 4 C.C.No.1210/PW/2022
3] What order? Accused is convicted under
Section 454 of IPC and
acquitted under Section
380 r.w. 511 of IPC.
R E A S O N S
AS TO POINT NO.1 and 2 :
7) The offence of house trespass is defined under Section 442 and
house breaking is defined under Section 445 of the Indian Penal Code. To attract
offence punishable under Section 454 of the Indian Penal Code there must be
lurking house trespass or house breaking in order to commit offence punishable
with imprisonment. If the offence is committed intending to commit theft the
period of greater punishment is provided than to offence punishable with
imprisonment.
8) According to the above ingredients the evidence of prosecution
witnesses needs to be scrutinized. According to P.W.1 Kimbarli Parera she heard
noise on upstairs, she called her friend Sharlin Parera, they both went to upstairs,
saw that glass of window was broken and a shadow of a person. Then they
called the neighbours and police. In corroboration to this version P.W.No.2
Sharlin Parera deposed that her friend Kimbarli Parera called her on phone and
informed that she heard sound of breaking of glass and footsteps on first floor of
her house. She went to the house of the informant and saw from the window a
shadow of a person. Then they called their neighbours and police. This evidence
of both these witnesses is in corroboration to each other that some person who
was present at first floor of the house of the informant. The glass of window was
broken.
9) According to P.W.No.3 Santosh Keshav Pawar, he prepared
panchanama of place of incidence in presence of panchas vide Exh.09. In
panchanama Exh.09 it is specifically mentioned that glass of upper window was
..5/-
-- 4 of 7 --
Judgment 5 C.C.No.1210/PW/2022
broken and the frame of window was also damage. This evidence corroborate
with the evidence of other prosecution witnesses that some person was present
and the entry was made by breaking the glass of the upper window.
10) The defence of the accused that the glass of ventilator was already
broken is specifically denied by the P.W.1 Kimbarli Parera in her cross-
examination. P.W.No.2 Sharlin Parera was not cross-examined on the point that
she did not see anything or she did not went to the house of informant in
response to the call made to her.
11) In the evidence of P.W.1 Kambarli Parera, P.W.2 Sharlin Parera and
P.W.3 Santosh Pawar it is seen that all the three witnesses categorically identified
the accused as same person who was found at the place of incidence and it is also
deposed by all these three witnesses that the police opened the door of room on
first floor of the house of the informant and they found accused in the room and
arrested him is also categorically deposed by P.W.1 Kambarli Parera and P.W.2
Sharlin Parera. As far as evidence of P.W.3 Santosh Pawar, he deposed that the
accused was arrested at the spot i.e. house of the informant. All these witnesses
identified the accused when the accused was produced on video linkage.
12) The defence of the accused is that the glass of window was already
broken does not justify the entry of the accused in the house of informant. It also
does not justify that the glass of window was already broken, the reason is
unexplained presence of accused at the house of informant.
13) From the evidence it can be concluded that the accused entered into
the property in possession of the informant in the house of the informant with
intent to commit an offence or to intimidate, insult or annoy informant who was
in possession of the property at the relevant time. Accused entered in the house
by breaking the glass of the window thereby effected his entrance into the house
by making his own passage for the entry. The ingredients of offence punishable
..6/-
-- 5 of 7 --
Judgment 6 C.C.No.1210/PW/2022
under Section 454 are made out against the accused. The informant has lodged
report against the accused that accused entered in her house with the intention to
commit theft. The informant or any other witness failed to depose that accused
entered in the house with intention to commit theft. About commission of theft
there should be direct evidence that entry in the house is with intention to commit
theft. In absence of this evidence about the intention to commit theft by the
accused, the accused cannot be held guilty for the offence of attempt to commit
theft. On the basis of evidence on record it is proved that the prosecution
succeeded to establish that accused has committed an offence punishable under
Section 454 of the Indian Penal Code. The offence of attempt to commit theft
under Section 380 r.w.511 is not proved against the accused. As the accused is
held guilty for the offence punishable under Section 454 of the Indian Penal
Code a pause is taken to hear the accused on point of sentence.
14) It is submitted by the accused that whatever punishment will be
imposed he will abide by that. It is submitted by Ld. Advocate for the accused
that accused is in jail since last more than six months. There is no one to support
or take care of the accused. The punishment already undergone may be imposed
on the accused. Ld. A.P.P. argued that maximum punishment be awarded against
the accused.
15) It reveals from the record that the accused was arrested at the place
of incidence. Since the date or arrest till today the accused is in jail. Inspite of
release the accused on bail he is unable to furnish surety. No one has approached
the Court to release the accused by furnishing surety. There is no record of
criminal antecedents of the accused. The accused is arrested without committing
theft of any article. There is no loss or damage caused to the informant therefore
no compensation is awarded to the informant. The sentence of imprisonment
which accused has already undergone will be justified considering the
aggravating and mitigating circumstances. Accordingly, I answer point No.1 in
..7/-
-- 6 of 7 --
Judgment 7 C.C.No.1210/PW/2022
affirmative and Poing No.2 in the negative and in answer to point No.3 pass the
following order :-
ORDER
1. The accused Salim Ali Qureshi is convicted for the offence
punishable under Section 454 of Indian Penal Code vide Section 248(2) of the
Code of Criminal Procedure.
2. The accused Salim Ali Qureshi is convicted for the offence
punishable under Section 454 and sentenced to suffer Rigorous Imprisonment for
Six(6) months and Twenty(20) days and to pay fine of Rs.5,000/-(Rupees Five
Thousand only), in default of payment of fine, the accused to suffer further
Rigorous Imprisonment for 15(Fifteen) days.
3. The period of detention undergone by the accused be given set off
against the term of imprisonment imposed upon the accused as per Section 428
of The Code of Criminal Procedure.
4. Accused is acquitted for the offence punishable under Section 380
r.w.511 of Indian Penal Code vide Section 248(1) of the Code of Criminal
Procedure.
5. Copy of the judgment be given to the accused free of cost
forthwith.
( Dictated on computer and pronounced in open Court.)
Date:- 25/11/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 25/11/2022
Dictated on : 25/11/2022
Typed on : 25/11/2022
Signed on : 25/11/2022
vnh
../-
-- 7 of 7 --