Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C. C. No. 1251/PW/2022
MHMM180064442022 Received on : 07/07/2022
Registered on : 07/07/2022
Decided on : 21/10/2022
Duration : 00 Y. 03 M. 14 D.
Exh.No.14
(Accused is produced on Video Conference)
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) Serial number of the case : 1251/PW/2022
(b) Date of commission of the offence. : From 06.05.2022 to
12.05.2022
(c) Name of the complainant, if any, : The State ( Khar Police
Station, C.R.No. 639/2022 )
(d) Name of the accused person, his
parentage and residence
: Shehjad Mehruddin Shaikh
Age : 20 yrs, Occ : Nil
R/o: Patel Nagari Slum, near
Bandra Bus Depot, Bandra
(W), Mumbai
(e) Offence complained of or proved. : U/Section 454, 457, 380 r/w 34
of I.P.C.
(f) Plea of the accused person and
his examination, if any
: Accused pleaded not guilty and
claimed to be tried.
(g) Final order : Accused is acquitted of the
offence punishable under
section 454, 457,
380 r/w 34 of I.P.C.
(h) Date of order : 21.10.2022
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Judgment 2 C. C. No. 1251/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
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J U D G M E N T
(Delivered on 21.10.2022 )
1. The accused is charged under Section 454, 457, 380 r.ww 34
of the Indian Penal Code, 1860 (in short 'Code').
2. The case of prosecution in brief is as under :-
Informant is a teacher at Laxminagar Public School (Akansha
Foundation), near Khar Jimkhana, Khar (W), Mumbai. On 06.05.2022 at about
11.30 a.m. informant closed the school. On 12.05.2022 at about 5.20 p.m.
another teacher by name Durga Tambe informed informant on phone that theft
has taken place in the school. Informant rushed to the school. Lock on the
main door of the school was broken. Informant entered in the school and
found that 11 CPUs of HP company were stolen from the computer room.
Informant lodged report of the incident at Khar police station.
3. Khar Police station Officer registered the offence vide crime
No.639/2022. During investigation, the alleged stolen property is not
recovered. After completion of the investigation, charge-sheet is filed against
the accused.
4. The charge is framed against the accused at (Exh.-2). The
contents of the charge were read over and explained to the accused in
vernacular. The accused pleaded not guilty and claimed to be tried. The
defence of the accused is that he is falsely implicated.
5. To prove the guilt of the accused, the prosecution has examined
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Judgment 3 C. C. No. 1251/PW/2022
in all four witnesses (P.W.1) informant – Sanjana Harish Tambe (Exh-5),
(P.W.2) witness – Hafiz Alam Qureshi (Exh-7) and (P.W.3) First Investigating
officer – Vaibhav Diliprao Salunkhe (Exh-8) and (P.W.4) Second Investigating
officer – Sachin Ramdas Trimukhe (Exh-10). Statement of the accused under
Section 313(1)(b) of The code of Criminal Procedure 1973 is recorded at
(Exh.13). The defence of the accused is that he is falsely implicated.
6. Heard Ld. APP and the Ld. Advocate for the accused. Perused
the record. Following points arose for determination, finding are recorded
against each of them for reasons to follow :-
Sr.No. POINTS FINDINGS
1. Whether prosecution proved that from
06.05.2022 at 11.30 hours till 12.05.2022 at
17.20 hours, at Laxminagar Public School
(Akansha Foundation), Khar (W), Mumbai, the
accused in furtherance of their common
intention, with his friend committed lurking
house trespass by entering into said school with
intention to commit an offence of theft and
thereby committed an offence punishable under
section 454 r/w 34 of IPC ?
In the Negative
2. Whether prosecution proved that on the above
mentioned date, time and place, the accused in
furtherance of common intention with his
friend committed house breaking by entering
into aforesaid school of the informant by
breaking lock of main gate for the purpose of
committing theft at the school and thereby
committed an offence punishable under section
457 r/w 34 of IPC ?
In the Negative
3. Whether prosecution proved that on the
aforesaid date, time and place, the accused in
furtherance of common intention with his
friend committed offence of theft of 11 CPUs
of HP company from the building of the school
and thereby committed an offence under
In the Negative
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Judgment 4 C. C. No. 1251/PW/2022
section 380 r/w 34 of IPC ?
2. What order? As per final order.
R E A S O N S
As to Point No. 1 to 3 :-
7. All the points are connected to each other and to maintain brivity
all the points are taken together for discussion. To begin with the evidence of
PW-1 Sanjana Tambe she deposed that she got phone call from Durga Tambe
about theft in their school. When she went at the school and found lock of
front door was broken. All the doors of the class rooms were also broken and
she found 11 CPUs were stolen from the school. She lodged report at Exh-6.
In respect of identification of accused, PW No.1 Sanjana deposed that she
alongwith police checked CCTV cameras and saw the incidence of the theft of
CPUs recorded on the screen of CCTV cameras. She can identify the person to
whom she saw at the screen, if shown to her. PW No.1 Sanjana identified the
accused as the same person when accused was produced on video conference.
The only relevant suggestion put to PW No.1's cross-examination is that she
did not submit bills of stolen CPUs.
8. The investigation officer PW No.3 PSI Vaibhav Salunkhe
deposed about registration of FIR at Exh-6 and preparation of panchnama at
Exh-9. No substantive cross-examination is seen to discard his testimony. To
connect the accuused with the offence of theft of CPUs, PW No.2 Hafiz
Qureshi deposed that the accused came to his shop with offer to purchase
CPUS. This witness is not cross-examined by the accused. According to P.W.
No.4 PSI Sachin Trimukhe that he identified the accused and prepared arrest
panchanama. On 16.05.2022, he recorded disclosure statement of the accused
vide panchanama Exh-11. In disclosure statement accused voluntarily stated
that he is ready to show the place where he kept the CPUs. Further accused
taken him an panchas to a wall near Bandra bus Depot and shown the place
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Judgment 5 C. C. No. 1251/PW/2022
where he kept that CPUs. Accordingly, he prepared panchanama at Exh-12. It
is relevant to note that nothing was seized or found from the place which was
shown by the accused by his disclosure statement.
9. The case of the prosecution is based on circumstantial evidence
as well as evidence in the electronic form. The evidence that informant saw
the accused on CCTV screen of the school committing theft of CPU is not
supported by any electronic evidence to be filed on record by the prosecution.
The prosecution has withheld the best evidence available with them. To
establish chain of circumstances, the CPUs were not recovered during
investigation either on the disclosure statement given by the accused or by any
other mode. In absence of recovery of the stolen property and proof about theft
by the accused, do not establish involvement of the accused in the commission
of offence.
10. It is seen from the evidence on record that prosecution has failed
to file on record best evidence available with them. The chain of
circumstances is not established. It can be concluded that the accused is
involve in the commission of the offence. For this reason, it is held that the
prosecution failed to prove that the accused has committed theft of mobile
handset of informant beyond reasonable doubt. Finding to point No.1 is
negative with the following order :-
ORDER
1. Accused Shehjad Mehruddin Shaikh is acquitted for the offence
punishable U/Secs. 454, 457, 380 r/w 34 of the 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.
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Judgment 6 C. C. No. 1251/PW/2022
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:-21/10/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 21/10/2022
Dictated on : 21/10/2022
Typed on : 21/10/2022
Signed on : 21/10/2022
vnh
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