Final Order 1

Order Details: Copy of Judgment
Pdf Text: -- 1 -- C.C. No. 755/PW/2018
Presented on : 11/05/2018
Registered on : 11/05/2018
Decided on : 07/02/2019
Duration : 0 Y. 08 M. 26 D
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
12TH COURT, BANDRA, MUMBAI.
(Presided over by S. R. Sharma)
CNR NO. MHMM180064522018
Exh. no.
(a) The Serial No. of the Case : 755/PW/2018
(C. R. No.112/2018)
(b) The date of the commission : 02/04/2018
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. 454, 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 : 07/02/2019
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 07th day of February 2019 )
My Learned Predecessor framed charge framed against
the accused for the offence punishable under sections 454 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. His defence is
that of total denial and false implication.
2] The case of prosecution is that the accused committed
house trespass by entering into the house of the informant and
committed theft of gold ornaments, cash amount from her house.
In this regard, the prosecution has examined the informant
Ranjana as P.W.1 at Exh.4 and Manish as P.W.2 at Exh.6.
3] It has come in the testimonies of Ranjana (P.W.1) and
Manisha (P.W.2) that both of them reside at Dharavi Cross road,
near Sai Baba Mandir which is within Basweshwar Nagar where
they have their individual rented premises. They amplified that on
the day of incident in the morning they had left for work.
Manisha (P.W.2) continued that at around 1.00 p.m. she returned
back home for lunch. She deposed that it was then that she saw
that the door of her house was ajar. She elaborated that on
entering inside she saw that entire articles of the house had been
rummaged and the lock of the cupboard was broken. She testified
that gold and silver ornaments had been stolen. She explicated
that when she went to the contiguous house to inform about the
incident to her neighbour Ranjana (P.W.1) she came across even
her door to be ajar and house to have been struck by thieves.
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4] Ranjana (P.W.1) corroborated by deposing that after
being apprised by a girl about theft at her house she had rushed
back home to check it. She expounded that when she pushed
open the door of her house she saw that the lock had been
wrenched. She continued that by breaking open her locker gold
articles, cash amount and saris had been stolen. Ranjana (P.W.1)
concluded to have lodged report (Exh.5).
5] The case of prosecution is that lurking house breaking
is committed at the house of both the witness whose testimonies
have been tendered. Entrance had been effected in their dwelling
house by trespasser by using criminal force and opening the lock
in order to commit house trespass and subsequently to quit the
house after the same. From the cross examination to which both
the witnesses have been subject to it is manifest that the incident
is challenged by pointing out that the case is false. It is stated that
Ranjana (P.W.1) has not given intrinsic details while lodging
report (Exh.5). It is pointed out that Manisha (P.W.2) does not
possess the bill of the ornaments which she has purported to be
stolen.
6] In this regard, it is pertinent to note that the defence
has not come with the case that the witnesses were acquainted
with the accused from prior to incident whereby it can be found
probable for them to have reason to depose false against him.
Thus, from the version of witnesses both of which are concorded
by one another occurrence of house breaking at night as well as
commission of theft is established. Residential contentious issue is
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restricted to involvement of the accused as the perpetrator thereof.
6] So far as identity of the accused is concerned, it is
pertinent to note that both Ranjana (P.W.1) and Manisha (P.W.2)
have not given any intrinsic details about the same. As most of
the offence of house breaking and theft are committed when the
premises are vacant expecting direct ocular evidence in that
regard from the aggrieved is not reasonable. The said as such
does not prove fatal to the case.
7] At the same time, the defence contention that
copulative, corroborative evidence could have been tendered to
establish nexus of the accused with the offence holds force. If the
material brought on record is seen it is evident that no evidence
has been placed on record whereby the identity of the accused is
established through the facet of recovery. Even though Ranjana
(P.W.1) and Manisha (P.W.2) have testified that they have been
able to receive back part of their property, there is no material
whereby it is perspicuous that the recovery came to be done at the
instance of the accused. Ranjana (P.W.1) has remained entirely
silent about the identity of culprit. Manisha (P.W.2) stated that
she was in a position to identify the thief. However, she has not
elaborated as to how it is possible for her to do the same. This is
because she has not explicated when she had occasion to come
across him. Even if, she has testified about her being called to
police station. When and how she come across the accused is also
not contended by her. As such, that the stolen property was
recovered at consequence of information given by the accused and
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he was the one who had been found in conscious possession of the
stolen property for which possession he had been unable to give
reasonable explanation is not a finding which can be arrived at.
8] As such, even though the commission of offence is
established there is paucity of chain of evidence whereby it can be
held beyond reasonable doubt that it was the under trial accused
who had actually committed the offence. That it was the accused
who took away the ornaments, cash from the possession of
aggrieved without their consent in order to their taking and
thereby committed house breaking is not established by
prosecution. Consequently, he being under trial prisoner since the
inception of matter is entitled for release forthwith.
9] 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. The ingredients of charge
arraigned against the accused are not made out. Hence, he is
entitled for exoneration. So far as seized muddemal property is
concerned, as per testimonies of Ranjana (P.W.1) and Manisha
(P.W.2) it is in their custody. Said custody is entitled to be
confirmed and bond, if any, cancelled. I, therefore, ordain as
follows :
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O R D E R
1 The accused is hereby acquitted of the offences punishable
under section 454, 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.
3 The accused to execute bail bond of Rs. 5,000/ (Rs. Five
Thousand only) 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: 07/02/2019
(Shruti R. Sharma)
Metropolitan Magistrate,
12th Court, Bandra, Mumbai.
Dictated on : 07/02/2019
Transcribed on : 07/02/2019
checked on : 07/02/2019
Signed on : 07/02/2019
sd/
(Shruti R. Sharma)
Metropolitan Magistrate,
12th Court, Bandra, Mumbai.
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