Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.1469/PW/2022
MHMM180074292022 Received on : 03/08/2022
Registered on : 03/08/2022
Decided on : 28/09/2022
Duration : 00 Y. 01 M. 25 D.
Exh.No.- 10
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.1469/PW/2022
b) The date of commission of
offence
: 28/06/2022
c) The name of the complainant if
any
: The State through Khar police
station. C.R.No.945/2022.
d) The name of the accused persons,
parentage and residence
: Dilipmohan Ramsurat Singh
Age – 23 years,
Occupation- Nil
R/o. Nargis Dutt Road Footpath,
K.C.Marg, Bandra(W), Mumbai.
e) The offence complained of or
proved
: Under Section 457, 380 of Indian
Penal Code
f) The plea of the accused and his
examination, if any
: Accused pleaded not guilty and
claimed to be tried.
g) The Final Order : The accused is acquitted .
h) The date of such order : 28/09/2022
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Judgment 2 C.C. No.1469/PW/2022
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Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr. Subodh Santy
=====================================================
J U D G M E N T
(Delivered on 28/09/2022)
1) The accused is charged for the offence punishable under section
457 380 of Indian Penal Code(For short 'Code').
The case of prosecution in short is as under: -
2) Informant Shri.Deepak Asudomal Mirali is running Saloon shop at
Khar(W), Mumbai. One woman by name Nira Sanday came to his shop at
10.00 a.m., informant opened shop for cleaning. on 28/06/2022 at about 10.00
a.m. informant reached at the shop for opening it. The woman Neera informed
the informant that shutter of shop is lifted up. Informant found the shutter of
shop is lifted up from the corner. Informant entered in the shop by opening
shutter. Informant found the cash counter was opened and articles were
scattered. Informant found that one mobile of Samsung Company and cash of
Rs.20,000/- stolen from the drawer of the cash counter of the shop. Informant
checked the CCTV footage and found that on 28/06/2022 at about 1.00 a.m.
unknown person lifted the shutter, entered in the shop and stolen articles from the
drawer. Informant lodged report of the incidence to Police Station, Khar. FIR
vide Crime No. 945/2022 registered against the unknown persons.
3) During investigation accused is arrested. On the basis of disclosure
statement of the accused cash of Rs.3,000/- is recovered. After completion of the
investigation charge-sheet is filed against the accused.
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Judgment 3 C.C. No.1469/PW/2022
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 in Jail
Court to which he pleaded not guilty and claimed to be tried. Plea of the accused
is recorded at (Exh.03 ) .
5) The prosecution has examined in all Two witnesses (P.W.No.1)
Deepak Asutomal Mirani, informant at (Exh.04) and (P.W.No.2) Pradeep Ashok
Patil at (Exh.06).
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.09). 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 the
accused on 28/06/2022 at about 01.00 to 02.00
hrs. at Project 42 Saloon, Shop No.42, Bhagwan
Niwas, 18th Road, behind Fab India
Showroom,Khar(W), Mumbai committed
lurking house trespass by entering into shop of
the informant with the intention of committing
theft, in possession of informant and thereby
committed an offence punishable under Section
457 of the Indian Penal Code?
No.
2] Whether the prosecution proved that the accused
on the aforesaid date, time and place
committed theft of cash amount of Rs.20,000/-
from the cash drawer in the shop of the
informant and thereby committed an offence
punishable under Section 380 of Indian Penal
Code?
No.
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Judgment 4 C.C. No.1469/PW/2022
3] What order? Accused is acquitted
R E A S O N S
AS TO POINT NO.1 TO 3 :
8) The burden is on the prosecution to prove that accused entered in
the shop by lifting the shutter and stolen cash of Rs.20,000/- and mobile phone.
According to P.W.No.1 Deepak Mirani on 28/06/2022 at about 10.15 a.m. when
he reached at the shop he found that shutter of the shop was opened and on
entering in the shop he found one mobile phone and cash of Rs.20,000/- were
stolen. The contents of FIR(Exh.05), which is lodged against the unknown
person, admitted by P.W.No.1 Deepak Mirani as correct. It is not deposed by
P.W.1 Deepak Mirani that he checked CCTV Footage and seen unknown person
while breaking opened the shutter of the shop and taking away cash and mobile
phone as alleged.
9) To link the accused with the commission of offence, P.W.No.2 PSI
Pradeep Patil deposed that on 11/07/2022 accused given disclosure statement
vide Exh.07 that he is ready to show the place where he kept cash. Accordingly
accused taken him and panchas to a platform of Bandra Railway Station and
taken out cash of Rs.3,000/- from his bed.
10) As per evidence of P.W.No.2 Pradeep Patil he seized and sealed
cash in presence of panchas and prepared seizure panchnama at Exh.08. In his
cross-examination PSI Pradeep Patil, P.W.2 admitted that the place from where
the amount was seized is a open place. The seizure of the cash at the instance of
the accused should be linked with the commission of theft. Mere seizure of cash
is not sufficient to establish link between theft and recovery of the cash. There is
no record to show that the cash which is recovered at the instance of the accused
is anyway linked with the commission of offence or the cash stolen from the
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Judgment 5 C.C. No.1469/PW/2022
shop of the informant. The accused specifically denied the seizure of cash at his
instance in his statement under Section 313(1)(b) of Cr.P.C.. For these reasons
mere seizure of the alleged cash and that too from open place does not establish
chain of circumstances pointing out the involvement of the accused in the
commission of the offence.
11) As per FIR Exh.05, informant has checked CCTV footage and saw
one unknown person while committing theft at his shop. To establish link of the
accused this vital evidence is not produced by the prosecution to prove link of
the accused or involvement of the accused in the commission of the offence. On
the basis of evidence on record no conclusion can be drawn that accused has
committed the offence punishable under Section 457, 380 of Indian Penal Code.
Accordingly finding is recorded to Point No.1 in the negative. Following order
is passed.
ORDER
1) The accused Dilipmohan Ramsurat Singh is acquitted of the
offence punishable under Section 457, 380 vide Section 248(1) of the Code of
Criminal Procedure.
2) The accused is in jail. He be released forthwith if, not required in
any other offence. Inform the Jail Authority accordingly.
3) The accused to furnish bail bonds in compliance of Section 437(A)
of the Code of Criminal Procedure. Jail Authority is directed to release the
accused on executing P.R.Bond of Rs.10,000/-(Rupees Ten Thousand only) and
to submit the report accordingly to this Court.
4) Seized cash amount be returned to the informant after appeal
period.
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Judgment 6 C.C. No.1469/PW/2022
5) The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of the Code of Criminal Procedure for further compliance.
( Dictated and pronounced in open Court.)
Date:-28/09/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai
Delivered on: 28/09/2022
Dictated on : 28/09/2022
Typed on : 28/09/2022
Signed on : 28/09/2022
vnh
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