Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.2495/PW/2021
MHMM180064772021 Received on : 24/11/2021
Registered on : 24/11/2021
Decided on : 19/09/2022
Duration : 00 Y. 09 M. 25 D.
Exh.No.-
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.2495/PW/2021
b) The date of commission of
offence
: 16/09/2021
c) The name of the complainant if
any
: The State through Khar police
station. C.R.No.642/2021.
d) The name of the accused persons,
parentage and residence
: 1.Santosh Ankush Bhoir @
Khajwa, Age – 24 years,
Occupation- Nil
R/o. Room No.04, 3rd Floor, Om
Shanti Apartment, near Rajiv
Gandhi School, Narayan Nagar,
Nalasopara(E), District Palghar
2. Nirajkumar Pappukumar
Kashyap, Age- 25 Years
Occupation- Nil
R/o. Room No.411, Murgan Chawl,
Road No.16,
Santacruz(W), Mumbai
e) The offence complained of or
proved
: Under Section 457, 380, 34 of
Indian Penal Code
f) The plea of the accused and his
examination, if any
: Accused pleaded not guilty and
claimed to be tried.
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Judgment 2 C.C. No.2495/PW/2021
g) The Final Order : The accused are convicted.
h) The date of such order : 19/09/2022
=====================================================
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 19/09/2022)
1) The above named accused are charged for the offence punishable
under section 457 380 r.w. 34 of Indian Penal Code(For short 'Code').
The case of prosecution in short is as under: -
2) On 16.09.2021, Rohit, Hotel Manager of Mommyjoon Hotel has
opened the hotel as usual and closed it at around 10.00 p.m.. Then he went
home. On the next day on 17.09.2021 when he came to open the hotel at around
9.00 a.m. he saw that the lock of the main door of the hotel was broken. Seeing
the lock broken, he became suspicious about it. He called the informant at
hotel. Informant and Rohit opened the door of the hotel and went inside, they
saw that the belongings of the hotel were scattered. When they went to the cash
counter, they could not find their four tabs, two of Samsung company and two
of Lenovo company tabs, as well as the cash of Rs.700/- to Rs.800/- kept in a
drawer. They were sure that some unknown person broken the lock of their
Mommyjoon Hotel and stolen the property described above. The informant
lodged the report against unknown person on 20/09/2021.
3) On the report of the informant offence was registered vide crime
No. 642 /2021 punishable under sections 457, 380 r.w. 34 of IPC against
unknown person. During investigation, on the basis of disclosure statement
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Judgment 3 C.C. No.2495/PW/2021
given by both the accused three tabs out of the stolen tabs were recovered at the
instance of the accused. After completion of investigation charge-sheet is filed
against accused No.1 and 2.
4) Charge is framed against both the accused at Exh.02. The contents
of the charge were read over and explained to the accused in vernacular through
Video conference to which they pleaded not guilty and claimed to be tried. Plea
of the accused was recorded at (Exh.03 and Exh.04) .
5) The prosecution has examined in all four witnesses (P.W.No.1)
Wasim Haider Iftekhar Ahmed Qureshi, informant at (Exh.05) , (P.W.No.2) Sujit
Kumar Yadav at (Exh.07), (P.W.N.3) Vishwanath Parshuram Sawant, pancha
witness at (Exh.09) and API Deepak Ramesh Kharade, Investigating Officer at
(Exh. 18)
6) The statement of accused under section 313(1)(b) of the Code of
Criminal Procedure, 1973 (for short the code) is recorded at (Exh. 21 and 22).
The defence of the accused is that of total denial and false implication. Heard
Ld. APP and Ld. Advocate for the accused.
7) 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 both the
accused in furtherance of their common
intention, in between 10.00 p.m. of
16/09/2021 to 9.00 a.m. of 17/09/2021
committed lurking house trespass by entering
into Mommyjoon hotel, at khar, with the
intention of committing theft, in possession of
Yes. Under Section 454
of Indian Penal Code.
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Judgment 4 C.C. No.2495/PW/2021
informant as an employee of the hotel and
thereby committed an offence punishable
under Section 457 r.w. 34 of the Indian Penal
Code?
2] Whether the prosecution proved that both the
accused on the aforesaid date, time and place
in furtherance of their common intention
committed theft of two tabs of Samsung
company, two tabs of Lenovo company and
cash of Rs. 400/- thereby committed an
offence punishable under Section 380 r.w. 34
of Indian Penal Code?
Yes.
3] What order? Accused are convicted
R E A S O N S
AS TO POINT NO.1 TO 3 :
8) About incidence of theft it is deposed by( P.W.1) Wasim Qureshi
that on 16/09/2021 he and other employee left the hotel by locking the gate by
putting locks. On 17/09/2021 when he came to the hotel he found that locks of
the hotel are broken. He informed this fact to the owner of hotel Smt. Priya Dutt.
On entering into hotel he found that two Tabs of Samsung Company and Two
Tabs of Lenovo Company and cash of Rs.70 to 80 was stolen. After checking
CCTV footage whole day he lodged the report (Exh.06) against unknown person
at Police Station. This evidence of (P.W.1) Wasim Qureshi is unrebutted for the
reason that only one suggestion that no theft has taken place in his hotel is put to
the witness which is specifically denied during cross-examination. It is proved
from the evidence of( P.W.1) Wasim Qureshi that there was theft of four Tabs and
cash from the hotel of the informant.
9) In support (P.W.2) Sunil Yadav deposed that on 18/09/2021 he was
called by police at Cafe Mommyjoon where the panchanama was prepared in his
presence about theft at the hotel. The admission in cross-examination that
(P.W.2) Sunil Yadav signed on panchanama without reading its contents is not
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Judgment 5 C.C. No.2495/PW/2021
sufficient to discard his testimony. For the reason that this witness has
specifically denied next suggestion that no panchanama was prepared in his
presence. Further he admitted his signature on panchanama. This evidence is
sufficient to held that panchanama of place of incidence (Exh.08)is proved by the
prosecution. On perusal of the panchanama (Exh.08) it reveals that wooden slate
of the door is broken and the lock is intact. This incriminating evidence proves
that someone opened the door by breaking wooden slate on which lock was
fixed, to enter into the hotel.
10) To prove presence of the accused in the hotel an attempt is made
by the prosecution to prove CCTV Footage collected during investigation. The
only witness examined to prove CCTV Footage is (P.W.4) Deepak Kharade. As
per evidence of (P.W.4) Deepak Kharade he collected CCTV Footage under
panchanama (Exh.19) and obtained the certificate under Section 65B of the
Indian Evidence Act from the person who has given CCTV Footage. It is settled
by the Hon'ble Supreme Court that who is competent to give certificate under
Section 65B(4) of Indian Evidence Act when electronic evidence in the form of
secondary evidence is produced before the Court. The law laid down by the
Hon'ble Supreme Court in Arujun Panditrao Khotkar Vs. Kailas Krishnarao
Gorantiyal ( 2020) 7 SCC. In Para 58 the Hon'ble Supreme Court interpreted
Section 65B(4), the person competent to issue certificate which reads as under----
“ It may also be seen that the person who gives this
certificate can be any one out of several persons who
occupy a responsible official position in relation to the
operation of the relevant device, as also the person who
may otherwise be in the management of relevant activities'
spoken of in Sub-section (4) of Section 65B. Considering
such certificate may also be given long after the electronic
record has actually been produced by the computer, section
65(B)(4) makes it clear that it is sufficient that such person
gives the requisite certificate to the “best of his knowledge
and belief”( obviously, the word 'and' between knowledge
and belief in section 65B(4) must be read as “or” as a
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Judgment 6 C.C. No.2495/PW/2021
person cannot testify to the best of his knowledge and
belief ”.
11) In the present case prosecution failed to examine the person who
issued certificate under Section 65B though filed on record. No evidence is on
record to establish that the person who issued the certificate under Section 65B
was competent to issue the certificate in view of the law laid down by the
Hon'ble Supreme Court in the case of Arjun Khotkar(supra). For these
reasons the electronic evidence in the form of pendrive filed on record cannot be
accepted and relied on to prove presence of accused at the relevant place and at
relevant time.
12) To prove recovery of stolen Tabs prosecution relied on the evidence
of (P.W3) Vishwanath Sawant and (P.W.4) API Deepak Kharade. According to
both these witnesses, on 27/09/2021 accused Santosh Bhoir through his
disclosure statement (Exh.10) disclosed the name of his friend Niraj by stating
that he is ready to show the place where he has kept the articles. At the instance
of the accused they proceeded, accused taken them to yellow bungalow at
Santacruz, near Rajesh Khanna Garden and taken out one Tab of Samsung
Company from under the wooden table. This Tab was seized vide seizure
panchanama( Exh.11).
13) As far as recovery of other two Tabs are concerned (P.W.3)
Vishwanath Sawant and (P.W.4) Deepak Kharade deposed that on 28/09/2021
accused Niraj gave disclosure statement (Exh.12) by stating that he is ready to
show the place where the articles are kept. Accordingly at the instance of the
accused Niraj they proceeded, accused taken them to a hut near Bandra Masjid.
Accused Niraj taken out one Tab of Samsung Company and one Tab of Lenovo
Company, one Tab of Launch Company, one Tab of Samsung Company and one
amplifier of black colour from under the table. All these articles were seized
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Judgment 7 C.C. No.2495/PW/2021
under seizure panchanama Exh.13.
14) In defence the accused came with the suggestion to (P.W.3)
Vishwanath Sawant and (P.W.4) Deepak Kharade that no disclosure statements
were given by both the accused and nothing was recovered at their instance. In
cross-examination (P.W.3) Vishwanath Sawant deposed that he do not know
whether bungalow and the hut was abandoned and no inquiry was made about
ownership of the bungalow and the hut. In cross-examination of (P.W.4) Deepak
Kharade he admitted the suggestion that the bungalow and hut were abandoned.
15) Ld. A.P.P. Smt.M.F.Pakajade for the State submitted that stolen
Tabs are seized at the instance of the accused under Section 27. The recovery of
Tabs is admitted in evidence and it connects the accused in the commission of the
offence. Ld. Advocate for the accused Mr. P.P.Khot argued that seizure of Tabs
at the instance of accused is not prove by the prosecution as the panch witness is
habitual panch, no detail description of bungalow and hut is given by the
prosecution, there is no corroboration in the evidence. Pancha witnesses and
accused about situation of bungalow.
16) In cross-examination pancha witness deposed that he do not know
whether bungalow and hut were abandoned. Investigation Officer deposed that
bungalow and hut were abandoned. This discrepancy in the evidence of both the
witnesses is not sufficient to create doubt on the recovery of Tabs and discovery
of place. It is for the reason that the place is within exclusive knowledge of the
accused and recovery of tabs supports the creditability of prosecution witnesses.
The pancha witness is habitual panch that itself is not ground to raise suspicion
on this testimony. The reason is in absence of any interest in the prosecution
case panch witness has supported disclosure statement given by the accused.
17) The scope and ambit of Section 27 of the Evidence Act were
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Judgment 8 C.C. No.2495/PW/2021
illuminatingly stated in Pulukuri Kotayya v. Emperor (AIR 1947 PC 67) in the
following words, which have become locus classicus:
“It is fallacious to treat the 'fact discovered' within the
section as equivalent to the object produced; the fact discovered
embraces the place from which the object is produced and the
knowledge of the accused as to this and the information given
must relate distinctly to this fact. Information as to past user or
the past history, of the object produced is not related to its
discovery in the setting in which it is discovered. Information
supplied by a person in custody that 'I will produce a knife
concealed in the roof of my house' does not lead to the discovery
of a knife; knives were discovered many years ago. It leads to
the discovery of the fact that a knife is concealed in the house of
the information to his knowledge, and if the knife is proved to
have been used in the commission of the offence, the fact
discovered is very relevant. But if to the statement the words be
added 'with which stabbed A.', these words are inadmissible
since they do not related to the discovery of the knife in the
house of the informant." (p.77)
18) In Udai Bhan v. State of Uttar Pradesh (AIR 1962 SC 1116).The
various requirements of the Section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue.
It must be borne in mind that the provision has nothing to do with question of
relevancy. The relevancy of the fact discovered must be established according to
the prescriptions relating to relevancy of other evidence connecting it with the
crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received
from the accused and not by accused's own act.
(4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer. (6) The discovery of a fact in
consequence of information received from an accused in custody must be
deposed to.
(7) Thereupon only that portion of the information which relates distinctly or
strictly to the fact discovered can be proved. The rest is inadmissible.
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Judgment 9 C.C. No.2495/PW/2021
19) As observed in Palukuri Kotayya's case (supra) it can seldom
happen that information leading to the discovery of a fact forms the foundation of
the prosecution case. It is one link in the chain of proof and the other links must
be forged in manner allowed by law.
20) Applying the above law to the facts of the present case both the
accused were arrested for the commission of theft at the hotel. Both the accused
were in the custody of (P.W.4) Deepak Kharade who is police officer. The
statements given by the accused during custody leading to the discovery of the
place where the Tabs were kept and recovery of the Tabs. The fact discovered is
the place where the Tabs were kept and recovery of the Tabs is proved as it
covers the ingredients of Section 27 of Indian Evidence Act.
21) Mere discovery of a fact on the basis of information is not
sufficient. The discovery of facts must relates to the commission of offence. It
reveals from the FIR that informant has given serial numbers of stolen Tabs. In
recovery panchanama of both the accused serial numbers of the Tabs are
mentioned. The serial numbers of the Tabs given in FIR and recovered at the
instance of the accused squarely coroborates to each other. The accused neither
in cross-examination nor in statement under Section 313 explained why the tabs
were concealed at a particular place. As per evidence of (P.W.1) Wasim Qureshi,
he identified the Tabs at police station. Further he admitted in cross-examination
that he is having bills of the Tabs.
22) First chain of circumstances, there was theft at the hotel of
informant of Tabs by breaking opened locked door. Second chain is the
registration of the FIR and arrest of the accused. Third is recovery of three Tabs
at the instance of the accused withthe same serial number of Tabs as mentioned
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Judgment 10 C.C. No.2495/PW/2021
in the FIR. Last is identification by informant at police station. All this chain
of circumstances connect with each other points towards the accused that except
accused no one has broke opened door of the hotel and taken away Tabs with
dishonest intention.
23) The charge against the accused is under Section 457 of the Code.
The evidence about lurking house trespass during night is not convincing. The
reason is the period during which the offence took place is from 10.00 p.m. to
09.00 a.m. i.e. after sunrise. The evidence is absent to conclude that the offence
took place before sunrise. Ingredients of offence punishable under Section 457
of the Code is not made out. On the basis of prove circumstances there cannot be
moving of Tab out of the hotel. There is no reason to disbelieve that accused
never entered in the hotel with the intention to commit theft when unexplained
recovery of Tabs is made at the instance of the accused. The ingredients of the
offence punishable under Section 454 is made out against the accused. To
constitute offence under Section 380 of the Code the circumstances on record
establish that accused taken away tabs dishonestly from the hotel in the custody
of the informant and without his consent.
24) The chain of circumstances established beyond reasonable doubt
that accused are guilty of the offence punishable under Section 454, 380 r.w.
Seciton 34 of the Indian Penal Code. Accordingly finding is recorded to Point
No.(1) and (2).
25) Both the accused are produced before the Court from correction
home. Heard accused in person. They submitted that minimum punishment be
imposed. It is submitted by Ld. Advocate for the accused that since arrest in this
crime accused are in jail. Accused be awarded with the imprisonment already
undergone by them. Ld. Advocate for the accused submitted that accused be
given benefit of Probation of Offenders Act and be released by imposing the
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Judgment 11 C.C. No.2495/PW/2021
sentence already undergone by the accused. Ld. A.P.P. submitted that other
offences are registered against the accused. If, leniency is shown in awarding
sentence accused will repeat the same nature of offence. Ld. A.P.P. prayed for
maximum punishment provided for the offence.
26) In awarding justifiable sentence according to the offence committed
by the accused it will be helpful to refer judgment of the Hon'ble Supreme Court
in Soman Vs. State of Kerla,(2013) 11 SCC 382 , in Para 27 the Hon'ble
Supreme Court observed thus:
“27.1. Courts ought to base sentencing decision on
various different rationals – most prominent amongst
which would be proportionality and deterrence.
27.2. The question of consequences of criminal action
can be relevant from both a proportionality and
deterrence standpoint.
27.3 Insofar as proportionality is concerned, the
sentence must be commensurate with the seriousness or
gravity of the offence.
27.4. One of the factors relevant for judging
seriousness of the offence is the consequences resulting
from it.”
27) In Alister Anthony Pareira Vs. State of Maharashtra,(2012)2
SCC 648 wherein it is observed by the Hon'ble Supreme Court in Para 84 that:-
“84. Sentencing is an important task in the matters of crime.
One of the prime objectives of the criminal law is imposition of
appropriate, adequate, just and proportionate sentence
commensurate with the nature and gravity of crime and the
manner in which the crime is done. There is no straitjacket
formula for sentencing an accused on proof of crime. The
courts have evolved certain principles: the twin objective of the
sentencing policy is deterrence and correction. What sentence
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Judgment 12 C.C. No.2495/PW/2021
would meet the ends of justice depends on the facts and
circumstances of each case and the court must keep in mind the
gravity of the crime, motive for the crime, nature of the offence
and all other attendant circumstances”
28) In view of the above guiding decision and applying it to the facts
of the present case accused committed theft by entering into the hotel in
possession of informant and committed theft of Tabs. Taking away another's
property out of his possession by breaking lock requires strong criminal intention
to commit such type of offence. When any premises which is locked and is
broken by the some another person with the intention to commit theft is a serious
offence. In this case accused has with preparation to commit offence entered in
the premises of the informant. The motive of theft is also clear. There are
criminal antecedents against both the accused. For these reasons accused cannot
be given benefit of Probation of Offenders Act.
29) Every person has right to protect his property. The offences related
to property particularly the offence of theft is to be dealt with punishment. If it is
not dealt with punishment the people will not feel safe in protecting their
property and wrong message will be given that a theft is offence of which law
does not take care. In the present case the owner of the hotel and the informant
suffered loss as their articles were stolen and the door of the hotel was broken.
The informant/owner of the hotel is required to be compensated under Section
357 of the Code of Criminal Procedure with a reasonable compensation. In the
case on hand taking into consideration the value of the property, antecedents of
the accused and the gravity of the offence following order is passed which would
meet the ends of justice. Accordingly finding is recorded to Point No.1 and 2 in
the affirmative.
O R D E R
1) The accused No.1 Santosh Ankush Bhoir @ Khajwa and
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Judgment 13 C.C. No.2495/PW/2021
accused No.2 Nirajkumar Pappukumar Kashyap are convicted for the
offence punishable under Section 454 r.w.34 of the Indian Penal Code vide
Section 248(2) of the Code of Criminal Procedure and sentenced to suffer
Rigorous Imprisonment of 01 (One) year each and to pay fine of Rs.5,000/-
(Rupees Five Thousand only)each, in default of payment of fine accused to suffer
further Rigorous Imprisonment for 01(One) month.
2) The accused No.1 Santosh Ankush Bhoir @ Khajwa and
accused No.2 Nirajkumar Pappukumar Kashyap are convicted for the
offence punishable under Section 380, r.w.34 of the Indian Penal Code vide
Section 248(2) of the Code of Criminal Procedure and sentenced to suffer
Rigorous Imprisonment of 01 (One) year each and to pay fine of Rs.5,000/-
(Rupees Five Thousand only) each, in default of payment of fine accused to
suffer further Rigorous Imprisonment for 01(One) month.
3) The amount of fine if, recovered Rs.5000/-(Rupees Five Thousand
only) be given to the informant/owner of the hotel Mommyjoon as a
compensation under Section 357(1) of the Code of Criminal Procedure.
4) The period of detention undergone by the accused during
investigation, inquiry or trial be treated as set off against the term of
imprisonment imposed upon the accused as per Section 428 of the Code of
Criminal Procedure.
5) Seized Tabs be given to informant/owner of Hotel Mommyjoon
after the appeal period.
6) All the Data of CCTV Footage copied in a pendrive be erased
permanently and pendrive be returned to the concerned Police Station after
appeal period.
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Judgment 14 C.C. No.2495/PW/2021
7) Substantive sentence passed shall run concurrently.
8) Copy of the judgment be given to the accused free of cost
forthwith.
( Dictated on computer and pronounced in open Court.)
Date:- 19/09/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 19/09/2022
Dictated on : 19/09/2022
Typed on : 19/09/2022
Signed on : 19/09/2022
vnh
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