Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C. C. No.828/PW/2018
Received on 07.06.2018
Registered on 07.06.2018
Decided on 05.07.2019
Duration 1 Y 0 M 28 D
IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
(PRESIDED OVER BY MR S. N. SHINDE)
(Judgment U/Sec. 355 of the Cr.P.C.)
Exh.P12
(A) The Serial No. of the case : 828/PW/2018
(C. R. No.43/2018)
CNR No.MHMM180067102018
(b) The date of the commission
of the offence
: On 05.02.2018
(c) The Name of the
complainant, if any
: Smt. Prema Ghanshyam Ghatge
(Through state of Kherwadi P.S.)
(d) The name of the accused
person, their parentage and
residence
: 1. Shahid Mohammed Amin
Shaikh
Age – 25 Yrs;
Res – Room No.D/3, J.M. Colony
Chawl, near Durgamata Mandir,
Khairani Road, Sakinaka, Mumbai
2. Abdulla Mohammed Tohib
Khan
Age – 34 Yrs;
Res – Room No. 306, SRA
Building No.19, Sangharsh Nagar,
Sakinaka, Mumbai.
(e) The offence complained of or
proved
: Under Section 454, 380 r/w 34 of
Indian Penal Code.
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(f) The plea of the accused and
their examination if any
: Recorded on 28.06.2018 at Exh.P
3. Accused pleaded not guilty and
claimed to be tried.
(g) The Final Order : Accused are acquitted.
(h) The date of such order : 05.07.2019
J U D G M E N T
(Delivered on 05.07.2019)
Accused charged for the offence punishable under section
454, 380 r/w 34 of Indian Penal Code, on the accusation that, on
05.02.2018 between 12.00 to 20.00 hours, at A20/3, Government
Quarters, Bandra (E), Mumbai, accused in furtherance of their common
intention, committed house breaking and committed theft of two silver
idols of 50 grams, three wrist watches of Rs.4,000/, cash of
Rs.25,000/, PAN card & Railway smart card total worth Rs.33,000/,
from the house of informant, used for human dwelling.
2. Prosecution has examined only two witnesses. Informant,
PW1 Smt. Prema Ghanshyam Ghatge, Exh4 and Investigating Officer,
PW2 Sohan Sureshrao Kadam, Exh6. And replied upon FIR Exh5, spot
panchanama Exh7, memorandum and seizure panchanama Exh8.
3. After prosecution evidence, statement of accused under
section 313 of Cr.P.C. (Exh10 & 11) have been recorded. The accused
raised defence of false implication and denied the prosecution case in
toto.
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4. Heard learned APP Ms. M.F. Pakajade for state and Ld.
defence counsel adv. Khot for the accused.
5. The evidence of informant shows that on 05.02.2018 at
about 12.00 p.m., she had been to office and returned back at 8.00 p.m.
At that time nobody was present in the house and thus same was
locked. On her return, she found that the lock of the safety door was
broken so also the lock of main door was broken. She immediately
called neighbours and contacted police. On arrival of police, she entered
inside and found that someone has committed theft of the property
mentioned above. Thus, she lodged FIR Exh5.
6. The defence choose not to crossexamine the informant.
Perusal of FIR Exh5 and the oral evidence of the informant, it is
evident that a theft has been committed in the dwelling house of the
informant by house breaking. Thus prosecution proved that the house
breaking has been committed at the day time for the purpose of theft.
7. Now it is to be seen whether the accused persons have
committed said theft. The investigating officer, PW2 deposed that PSI
More recorded FIR of the present crime and investigation was handed
over to him. PSI More had drawn panchanama Exh7. His evidence
shows that on 05.04.2018 during patrolling duty he arrested accused
persons under suspicion of commission of theft of motorcycle for which
separate offence under section 124 of Mumbai Police Act has been
registered. During their custodial interrogation, they confessed the
commission of theft by house breaking of the present crime.
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8. The investigating officer recorded confessional
statement/memorandum statement Exh8 of the accused No.1 and
recovered two Ganesh silver idols from the house of accused No.1.
Accordingly, the seizure panchanama Exh9 is recorded. His evidence
further shows that the other property has not recovered as accused did
not disclose the same.
9. The evidence of the investigating officer remained
unshattered and no admission elicited during crossexamination. Mere
denial of the accused is not sufficient to discard the evidence of
investigating officer.
10. The accused No.1 found in possession of the stolen silver
idols soon after the theft. The idols were recovered from the possession
of accused on the basis of distinctly discovered fact through the
memorandum statement of accused. Thus the discovery panchanama is
admissible vide section 27 of the Evidence Act.
11. Therefore, the accused No.1 shall explain his custody of the
stolen property. As accused failed to give any explanation, it has to be
inferred that he has either committed theft or received the stolen
property with knowledge vide section 114 (a) of the Evidence Act.
12. Prosecution thus proved that the accused No.1 has
committed the theft by house breaking. No evidence appearing against
accused No.2. The confession before police is not admissible vide
section 25 of the Evidence Act. Therefore, absolutely there is no
evidence against accused No.2 to connect with the crime. The accused
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No.1 being found in possession of the stolen property and same being
recovered on the basis of its recovery. On special knowledge of the
accused he is found committed the offence.
13. Thus prosecution proved the offence of house breaking in
order to commit the offence of theft vide section 454 of IPC, which
provide punishment of the imprisonment which may extend to 10 years
and fine. The accused also found committed theft in the dwelling house
of the informant vide section 380 of IPC, which provide imprisonment
which may extend to 7 years and shall also liable to fine. The accused
No.2 have to be acquitted. Thus, I recorded finding of guilt for accused
No.1 for the offence punishable under section 454, 380 of IPC and
paused hear for sentence hearing.
14. Heard accused No.1 in person and his advocate Mr. P.P.
Khot. APP absent. This is first case of the accused. He is sole earning
member of his family. Thus, he prayed for leniency.
15. Having heard accused and having considered the mitigating
circumstances, nature of offence, age of accused and the nature of
punishment provided for the offence, corporeal punishment is essential
to maintain deterrence along with compensation to compensate the
victim.
16. The two silver idols have to be returned to the informant
after appeal period over. If appeal preferred subject to order of
Appellate Court. Accordingly, I recorded findings and pass following
order :
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ORDER
i) Accused No.1 Shahid Mohammed Amin Shaikh is
convicted vide section 241 of Criminal Procedure Code
for the offence punishable u/sec. 454 of Indian Penal
Code. He is sentenced to suffer R.I. for 4 (Four) months
and fine of Rs. 15,000/ (Rupees Fifteen Thousand) in
default of payment of fine, he shall undergo further R.I.
for 2 (Two) months.
ii) Accused No.1 Shahid Mohammed Amin Shaikh is
convicted vide section 241 of Criminal Procedure Code
for the offence punishable u/sec. 380 of Indian Penal
Code. He is sentenced to suffer R.I. for 3 (Three)
months and fine of Rs. 15,000/ (Rupees Fifteen
Thousand) in default of payment of fine, he shall
undergo further R.I. for 2 (Two) months.
iii) Accused No.2 Abdulla Mohammed Tohib Khan is
acquitted of the offence punishable under section 454,
380 r/w 34 of IPC vide section 248(2) of Cr.P.C.
iv) Out of fine amount, Rs. 29,000/ ( Rupees Twenty Nine
Thousand) be paid to informant as a compensation.
v) The seized property i.e. two Ganesh silver idols
Rs.4,000/ be returned to the informant on bond after
appeal period. If appeal preferred, subject to order in
appeal.
vi) The accused No.1 was in custody since 05.04.2018 till
his bail. He is entitled to get benefit of set off for the
period of detention already undergone vide under
section 428 of Cr.P.C.
vii) The accused No.1 to surrender to his bail bonds.
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viii) The bail bonds of accused No.2 stands cancelled.
ix) Accused No.2 is in MCR. He be released forthwith, if not
required in other cases.
x) Copy of this judgment be supplied to the accused free of
cost.
Sd/
Mumbai,
Date : 05.07.2019
(Sudhir N. Shinde),
Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
Dictated on : 05.07.2019
Typed on : 05.07.2019
Signed on : 05.07.2019
Ssl.
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