Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.1468/PW/2022
MHMM180074302022 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.1468/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.312/2022.
d) The name of the accused persons,
parentage and residence
: Junaid Kifad Qureshi
Age – 30 years,
Occupation- Nil
R/o. Shop No.4, Tower Company,
90 ft. Road, near Suneri Building,
behind Gausiya Masjid, Dharavi,
Mumbai.
e) The offence complained of or
proved
: Under Section 454, 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
..2/-
-- 1 of 5 --
Judgment 2 C.C. No.1468/PW/2022
=====================================================
Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr. Ankit Mota
=====================================================
J U D G M E N T
(Delivered on 28/09/2022)
1) The above named accused are charged for the offence punishable
under section 454 380 of Indian Penal Code(For short 'Code').
The case of prosecution in short is as under: -
2) On 03/04/2022 at about 2.00 p.m. all the persons in the house left
the house. Thereafter at 2.30 p.m informant locked the house and went to watch
a movie at Bandra and at about 6.30 p.m. she returned home. Informant found
that lock of the door was broken and the door was half opened. Informant
entered in the house and saw that iron cupboard in the bedroom is opened. All
the articles kept in the cupboard are scattered. An amount of Rs.25,000/- is
stolen from the cupboard. The informant lodged the report of the incidence to
the police station. On the basis of report lodged by the informant offence bearing
Crime No.312/2022 is registered against the unknown persons.
3) During investigation accused is arrested. On the basis of disclosure
statement of the accused cash of Rs.4,000/- is recovered. After completion of the
investigation charge-sheet is filed against the accused.
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
was recorded at (Exh.03 ) .
5) The prosecution has examined in all Two witnesses (P.W.No.1)
Seema Nitin Utewala, informant at (Exh.04) and (P.W.No.2) Pradeep Ashok
..3/-
-- 2 of 5 --
Judgment 3 C.C. No.1468/PW/2022
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 03/04/2022 at about 14.30 to
18.30 hrs. at Room No.277, Warin Pada,
Khardanda, Khar(W), Mumbai committed
lurking house trespass by entering into the
house 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 from the
cupboard of the informant and thereby
committed an offence punishable under
Section 380 of Indian Penal Code?
No.
3] What order? Accused is acquitted
R E A S O N S
AS TO POINT NO.1 & 2 :
8) The burden is on the prosecution to prove that accused entered in
the house by breaking lock of the door and stolen cash of Rs.25,000/-. As per
evidence of P.W.1 Smeea Utewala, she left the house and returned after watching
..4/-
-- 3 of 5 --
Judgment 4 C.C. No.1468/PW/2022
movie at about 6.00 p.m.. Informant P.W.1 Seema Utewala found that door of
her house was broken. Lock was kept on chair and lights were on. On entering
the room she found that all the articles were scattered and cash of Rs.25,000/-
kept in the locker of Almira were stolen. It is deposed by P.W.1 Seema Utewala
that FIR Exh.05 is lodged by her against unknown person.
9) To link the accused with the commission of offence prosecution
has examined P.W.No.2 Pradeep Patil . It is deposed by P.W.2 Pradeep Patil that
on the basis of secrete information he arrested the accused and recorded
disclosure statement of the accuse on 19/06/2022 as per Exh.07. In disclosure
statement accused was ready to show the place where he has kept cash.
According to P.W.2 PSI Pradeep Patil, accused taken him and panchas near Fire
Brigade Office at KFC Road and taken out cash of Rs.4,000/- from a cotton bag.
The cash of Rs.4,000/- was seized and sealed by him in presence of panchas
vide panchanama Exh.08.
10) As per the evidence of P.W.2, accused taken them near fire brigade
office at K.F.C.Road and taken out cash of Rs.4,000/- from a cotton bag. This
evidence about discovery of cash amount is vague. The reason is where the
cotton bag was kept is not deposed by the P.W.2 PSI Pradeep Patil. To attract
Section 27 of the Indian Evidence Act, it is one of the essential element that it
must be deposed in respect of the place from where the articles are recovered or
fact is discovered. The evidence is required to be specific and clear in respect of
the place and the object found. There is no clear and specific evidence as to from
where the cotton bag was taken out by the accused. For these reasons as the
discovery of fact cannot be admitted in view of the Section 27 of Indian
Evidence Act.
11) The accused has denied in his statement under Section 313(1)(b) of
the Code of Criminal Procedure,1973 that nothing is recovered at his instance.
..5/-
-- 4 of 5 --
Judgment 5 C.C. No.1468/PW/2022
The amount of cash seized then can be given to the informant.
12) On the basis of evidence on record guilt of the accused is not
proved beyond reasonable doubt. Accordingly finding is recorded to Point No.1
in the negative. Following order is passed.
ORDER
1) The accused Junaid Kifad Qureshi 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.
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
../-
-- 5 of 5 --