Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C. C. No.872/PW/2018
Received on 15.06.2018
Registered on 15.06.2018
Decided on 29.11.2018
Duration 0 Y 5 M 14 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.P15
(A) The Serial No. of the case : 872/PW/2018
(C. R. No. 118/2017)
CNR No.MHMM180069492018
(b) The date of the commission
of the offence
: On 22.05.2017
(c) The Name of the informant, if
any
: Smt. Lurdin Fransis D'souza
(Through state of Kherwadi P.S.)
(d) The name of the accused
persons, their parentage and
residence
: 1. Ashraf Hussein Sayyed,
Age – 28 Yrs;
R/o. : Room No. 422, Rajiv Gandhi
Nagar, near Saibaba Temple, near
Dharavi Depot, Dharavi,
Mumbai – 400 017
2. Asif Ali Akbar Ali Shaikh,
Age – 23 Yrs;
R/o. : Room No. 442, Janta Sevak
Society, behing Mahim bus Depot,
Mahim, Mumbai – 400 016
(e) The offence complained of or
proved
: Under Section 392 r/w 34 of
Indian Penal Code.
(f) The plea of the accused and
their examination if any
: Recorded on 04.08.2018 at Exh.P
3. Accused pleaded not guilty and
claimed to be tried.
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(g) The Final Order : Accused are convicted.
(h) The date of such order : 29.11.2018
J U D G M E N T
(Delivered on 29.11.2018)
Accused charged for the offence punishable under section
392 r/w 34 of Indian Penal Code, on the accusation that, on 22.05.2017
at 12.50 hours, near Bandra Railway Bridge, Western Express Highway,
Bandra (E), Mumbai, accused, in furtherance of their common
intention, committed robbery of muddemal viz. Purse containing HTC
mobile phone and cash of Rs.15,000/ belongs to informant.
2. Prosecution has examined four witnesses. Informant, PW1
Lordin Fransis D'souza, ExhP4 and witness, PW2 Fransis Casmil
D'souza, ExhP6, panch witness PW3 Irfan Sartaj Shaikh, ExhP7 and
PW4 Dnyaneshwar Bhimraj Kuklare, ExhP11.
3. Statement of accused under section 313 of Cr.P.C. is
recorded at ExhP13 and Exh14. The defence of the accused is that of
false implication.
4. The defence has not disputed that there is a robbery
committed by snatching the purse of informant containing mobile
phone and an amount of Rs. 15,000/, by restraining her while she was
traveling in an autorickshaw along with her husband.
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5. The informant and her husband categorically deposed that
on 22.05.2017 at about 12.30 to 12.45 p.m. they were to visit their
family doctor. Thus, they traveled by an autorickshaw. When they
reached on the highway proceeding from Kherwadi, near Bandra
Railway Bridge, two unknown persons on a motorcycle suddenly came
across and snatched the handbag/purse of the informant. They could
not identify the accused persons as the rider of the bike wore helmet
and they fled within a moment. They deposed that the hand bag
containing the mobile phone of HTC made and cash of Rs.15,000/ was
thus stolen by the accused persons.
6. During the course of investigation, the accused No.1 and 2
were arrested and the mobile phone of the informant was recovered as
per the confessional/disclosure statement of the accused No.1, Ashraf
The evidence of panch witness, Irfan Shaikh and the Investigating
Officer sufficiently proved the disclosure memorandum and the
panchanama Exh8 and Exh9.
7. As per Exh8 and Exh9, the fact that stolen mobile was
kept by the accused No.1, in his house is proved. Same is thus
admissible vide section 27 of the Evidence Act. The accused No.1, took
the investigating officer, his staff and the panch witnesses to his house
and took out the mobile phone from the air bag. The mobile phone was
seized and sealed in the presence of witnesses.
8. When said mobile phone was shown to the informant
during her examination, she identified the same on the basis of its size
and design of back cover. Her evidence trying to impeach by the
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defence suggesting that she had not given IMEI number of the device
and she admitted that there are many such mobile phones of similar
size and design are available in the market. However, said defence not
appears reasonable. Firstly because informant deposed that she
absolutely unaware about the IMEI number. Secondly, her admission
that the availability of similar phone leads defence nowhere. Because,
said admission is an opinion. The opinion of a witness is not relevant or
binding upon the court. Mere suggesting that such phones are available
in the market doesn't mean that phone identified by the informant is
not her phone. Same is even not denied by the defence. Therefore, the
defence as to identity of the mobile phone appears to be incomplete and
not probable.
9. The defence also trying to dispute the prosecution case
asking to discard the evidence of panch witness, who seems habitual.
The panch witness PW3 admitted that he stood as a witness in 40 to 50
other cases. And thus he is acquainted with police. No doubt, the panch
witness seems not respectable person from the locality from where the
phone was recovered. However, the fact that mobile phone has been
seized on the disclosure statement of accused No.1, is remained
undisturbed. The investigating officer deposed and proved the
memorandum statement and the panchanama. The recovery of mobile
phone as per the special knowledge of the accused leading to its
discovery as a distinctly discovered fact is thus admissible. There
appears no reason to disbelieve the evidence of investigating officer.
10. It is to be noted that nowhere law provides that for seizure
of the articles on the disclosure statement of accused, the investigating
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officer should call the panch witnesses. It is always essential to effect
the discovery immediately after recording the disclosure statement be
panch witness present or not. Therefore, in fact the testimony of panch
witness is not decisive. The panch witness seen to have naturally
present in the police station as he visited police station for filing an
application as deposed during crossexamination. So there is nothing in
his evidence to doubt his credibility.
11. It has come in the evidence of investigating officer that
accused were arrested by Khar police station on secrete information and
the motorcycle used in the crime and along with one pistol, bullets and
magazine were recovered. The seized motorcycle is remained in the
custody of Khar police and not transferred in the present crime. The
accused were accordingly transferred in the present crime on suspicion.
12. As such, the prosecution has proved that the accused No.1
and 2 were used the motorcycle and committed robbery of HTC mobile.
The I.O. has deposed that accused persons have utilized an amount of
Rs.15,000/ and thus could not recover. The evidence of IO remained
intact. Nothing elicited to doubt the investigation.
13. Thus, the facts on record are that the stolen mobile of
informant, soon after the theft and within one year thereof found in
possession of accused No.1. Thus, the presumption under section 114
(a) is to made applicable. Therefore, it is presumed that the accused
No.1, found in possession of stolen mobile phone soon after the theft is
the thief or had received the mobile knowing to be stolen unless
otherwise proved.
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14. Thus, the onus shifted upon the accused to rebut said
presumption by giving account of possession of stolen mobile. Accused
failed to explain their possession. Thus, the accused seen to have
committed the robbery as deposed by the informant. There appears no
reason on record for the false implication of the accused.
15. The evidence suggests that either the accused No.1 or 2
were rider or the pillion rider, while snatching the handbag. The
accused No.2 has not denied that he did not accompany with the
accused No.1. Even the seizure of motorcycle is not disputed.
16. In totality of the circumstances, prosecution has proved
beyond all reasonable doubt that accused No.1 & 2, in furtherance of
their common intention, committed robbery by committing theft by
snatching the handbag of the informant by wrongfully restraining her in
an autorickshaw. Therefore, I hold accused guilty for said offence,
punishment of which may extend to 10 years and shall also be liable to
fine. Before proceeding further, I paused here for sentence hearing.
17. Accused are in jail. They are not produced by the jail
authority. Advocate of the accused Mr.Zamindar is present. He
submitted to show leniency considering age of accused persons. Learned
APP submitted to impose punishment as per law.
18. The accused persons though having young age, seen to
have involved in many other similar cases. The fact that they were
arrested with pistol and bullets shows their tendency in committing
serious offence against the property. Any unwarranted sympathy would
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certainly boost such acts and activities. Therefore, corporeal
punishment, rigors imprisonment of 1 year with fine Rs.10,000/ each
would meet the ends of justice. Out of fine, an amount of Rs.15,000/ if
recovered has to pay to the informant towards compensation.
19. Seized mobile phone need to handover to the informant
being owner of the same on condition to produce the same as and when
required by the court till disposal of appeal, if any. With this, I record
finding and pass following order.
ORDER
i) Accused Ashraf Hussein Sayyed and Asif Ali Akbar Ali
Shaikh are convicted vide section 248(2) of Cr.P.C. for
the offence punishable under sections 392 r/w 34 of
Indian Penal Code and shall suffer rigors imprisonment
for 1 year and to pay fine of Rs. 10,000/each. I.D. to
suffer R.I. for 3 months each.
ii) Out of fine, if recovered, an amount of Rs.15,000/ be
paid to the informant as a compensation.
iii) The seized HTC mobile be handover to the informant as
observed on bond.
iv) The accused are in MCR since 19.05.2018. They are
entitled for set off vide section 428 of Cr.P.C.
v) Copy of this judgment be given to accused free of cost.
Sd/
Mumbai,
Date : 29.11.2018
(Sudhir N. Shinde),
Metropolitan Magistrate,32nd Court,
Bandra, Mumbai.
Dictated on : 29.11.2018
Typed on : 29.11.2018
Signed on : 29.11.2018
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Ssl.
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