Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment ..1.. C.C. No.849/PW/2018
Exh.
Received on : 11.06.2018
Decided on : 11.02.2019
Duration : 00 08 00
Y M D
CNRMHMM180072552018
IN THE COURT OF THE ADDL.CHIEF METROPOITAN MAGISTRATE,
JAIL COURT AT ARTHUR ROAD JAIL, MUMBAI
JUDGMENT U/SEC. 355 OF THE CR. P. C.
(a) Serial number of the case : 849/PW/2018
(b) Date of commission of the offence. : 23/03/2018
(c) Name of the complainant, if any, : The State (Khar Police
Station, C.R.No.119/2018)
(d) Name of the accused person, his
parentage and residence
: Sonu @ Nirah Lalji Tiwari,
Age : 24 yrs, Occ : Service,
R/o : Korian Pakudi Marudi,
Near Radhubaba Mandir,
Kondiya, DistGauda, State
M.P.
(e) Offence complained of or proved. : U/Sections 381 r/w. 34 of
IPC
(f) Plea of the accused person and
his examination, if any
: Accused pleaded not guilty.
(g) Final order : Accused is acquitted.
(h) Date of order : 11/02/2019
ADVOCATES:
For the State : Smt. M. F. Pakajade , A.P. P.
For accused : Shri Tushar Patil
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Judgment ..2.. C.C. No.849/PW/2018
J U D G M E N T
(Delivered on this day 11th day of February, 2019 )
1. Accused is prosecuted for the offence punishable U/Sec.381
r/w.34 of IPC.
2. In support of it's case, prosecution has examined in all four
witnesses viz, informantRadha Arjun Bajaj (P.W.1) at Exh. 5,
Vishwanath Parshuram Sawant (P.W.2) at Exh. 7, Anik Arjun Bajaj
(P.W.3) at Exh. 9 and Investigating Officer Vaibhav Balaso Khavankar
(P.W.4) at Exh.9A. Prosecution also relied on report lodged by
informant at Exh. 6 and production panchanama of pen drive at Exh.8.
3. I have heard both sides at length. Now, I appreciate oral and
documentary evidence available on record.
4. From the evidence of informantRadha (P.W.1), it appears
that on 23.03.2018 at about 3.40 p.m. she came to her home at Khar
and found the door of house was opened. She found that her bangles
studded with diamonds, five pairs of earrings studded with diamonds,
gold chain, diamond pendent with earrings and cash of Rs.2,50,000/
were stolen. Her servant was not at home, therefore, she told this fact
to her husband. She lodged report of theft as per Exh. 6. Her
watchman told her that on the day of incident, accused, who was her
servant had gone with bag and never came back.
5. Similarly, son of the informant Anik (P.W.2) stated that on
the day of incident, he was sleeping inside the home. His mother woke
him up. They found the cupboard opened and a lot of cash, diamond
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Judgment ..3.. C.C. No.849/PW/2018
bangles, rings, earrings and other valuable items were stolen. They
came to know from the Security Guard that the accused and his friend
took something in garbage bag.
6. It is important to note here that, prosecution has not
examined Security Guard or Watchman to corroborate the evidence of
informant Radha (P.W.1) and Anik (P.W. 2). Both of these witnesses
have stated that in CCTV Footage, they found the accused and his friend
carrying something in garbage bag. However, by simply seeing the
CCTV footage, one cannot come to the conclusion in respect of contents
of garbage bag i.e. to say that the garbage bag was containing stolen
articles. Therefore, it would be unsafe to say that accused was carrying
stolen articles in garbage bag.
7. Thereafter, prosecution has examined Vishwanath (P.W.
2), a panch witness. He deposed that CCTV Footage was played before
him and informant Radha pointed out Shivshankar, friend of accused.
Production panchanama Exh. 8 was prepared in his presence. He
admitted that clip was not in respect of commission of theft. He has not
stated anything about accused Sonu, rather he stated about absconding
accused Shivshankar. Thus, his evidence is not helpful to prosecution.
8. Investigating OfficerVaibhav (P.W.4) stated about
investigation carried out by him. He arrested the accused, who
admitted about theft of articles with the help of his friend Shivshankar.
The accused told that all the property were taken by Shivshankar,
therefore, they could not seize anything from the possession of present
accused. However, Investigating Officer has not recorded confessional
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Judgment ..4.. C.C. No.849/PW/2018
statement of the accused to connect him with the commission of offence
of theft.
9. On going through oral and documentary evidence available on
record, it appears that prosecution has failed to examine material
witnesses, recover stolen articles and to prove commission of offence of
theft by servant i.e. accused. In short, there is no cogent and convincing
evidence on record to establish the guilt of accused beyond all
reasonable doubts. Hence, I proceed to pass following order :
ORDER
1] Accused Sonu @ Nirah Lalji Tiwari is acquitted of the offence
punishable U/Secs. 381 r/w. 34 of IPC as per section 248(1) of the
Cr.P.C.
2] The accused shall submit fresh bail bonds as per Sec.437 (A) of
Cr. P. C.
3] The accused be released forthwith if not required in any other
case.
5] Seized muddemal property i.e. pen drive of SanDisk Company
be returned to the informant after appeal period is over.
4] Pronounced in open court.
Sd/
Dictated on : 11.02.2019 (S. K. MUNGILWAR)
Transcribed on : 11.02.2019 Addl.Chief Metropolitan Magistrate,
Signed on : 11.02.2019 9th Court, Bandra, Mumbai.
Lsb/
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