Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment -1- C. C. No. 1520/PW/2022
MHMM180075822022 Received on : 06/08/2022
Registered on : 06/08/2022
Decided on : 21/10/2022
Duration : 00 Y. 02 M. 15 D.
Exh.No.10
( Accused is produced on Video Conference)
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) Serial number of the case : 1520/PW/2022
(b) Date of commission of the offence. : 20.04.2022
(c) Name of the complainant, if any, : The State ( Mahim Police
Station, C.R.No. 324/2022 )
(d) Name of the accused person, his
parentage and residence
: Mohammed Ittisam
Mohammad Akhtar Khan
Age : 35 yrs, Occ : Nil
R/o: Mahim Choota Darga
Footpath, L.J. Road, Mahim
(W), Mumbai.
(e) Offence complained of or proved. : U/Section 392 r/w 34 of I.P.C.
(f) Plea of the accused person and
his examination, if any
: Accused pleaded not guilty and
claimed to be tried.
g) Final order : Accused is acquitted of the
offence punishable under
section 392 r/w 34 of I.P.C.
(h) Date of order : 21/10/2022
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Judgment -2- C. C. No. 1520/PW/2022
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Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr. P.P.Khot
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J U D G M E N T
(Delivered on 21.10.2022 )
1. The accused is charged for the offence punishable U/Sec.392
r/w 34 of the Indian Penal Code, 1860 (in short 'Code').
2. The case of prosecution in brief is as under :-
On 20.04.2022 at about 8.00 p.m., informant was going from the
gate of Mint Colony near bus stop, by speaking on his phone. Suddenly one
two wheeler came from front direction and one of the rider on motorcycle
snatched the mobile of informant. The informant tried to chase the motorcycle,
but he failed. As it was dark, informant was not able to see the face and
number of motorcycle. The mobile was of Vivo company Y21 model.
Informant lodged the report to police station.
3. Mahim Police station Officer registered the offence vide crime
No.324/2022. During investigation, the alleged stolen mobile is recovered.
After completion of the investigation, charge-sheet is filed against the accused.
4. The charge is framed against the accused at (Exh.-2) for the
offence under Section 392 r.w. 34 of the Indian Penal Code. The contents of
the charge are read over to the accused. The accused pleaded not guilty and
claimed to be tried. The defence of the accused is that he is falsely implicated.
5. To prove the guilt of the accused, the prosecution has examined
in all three witnesses PW-1 informant - Ramtilak Ramnaresh Sahani (Exh-4),
(P.W.2) Panch witness – Chand Zakir Shaikh (Exh-6) and (P.W.3)
Investigating officer – Balasaheb Dnyandev Khote (Exh-8). Statement of the
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Judgment -3- C. C. No. 1520/PW/2022
accused under Section 313(1)(b) of The code of Criminal Procedure 1973 is
recorded at (Exh.09). The defence of the accused is that he is falsely
implicated.
6. Heard Ld. APP and the Ld. Advocate for the accused. Perused
the record. Following points arose for determination, finding are recorded
against each of them for reasons to follow :-
Sr.No. POINTS FINDINGS
1. Whether the prosecution proved that on
20.04.2022 at 20.20 hours, at Mahim Phatak,
Bus Stop, near Mint Colony, Mahim (W),
Mumbai, the accused in furtherance of common
intention alongwith unknown person,
committed theft of one Vivo company mobile
handset by snatching the same from the hands
of the informant and in committing theft
voluntarily caused or attempted to cause death
or fear of instant death or of instant hurt or of
instant wrongful retrain to the informant and
thereby committed the offence punishable
u/sec.392 r/w 34 of the Indian Penal Code ?
In the Negative
2. What order? As per final order.
R E A S O N S
As to Point No. 1 :-
7. The case of prosecution is based on circumstantial evidence. To
begin with the evidence of (P.W.1) Ramtilak he deposed that his mobile
handset was snatched by some unknown persons who came on the bike from
his front side when he was speaking on phone. He lodged FIR (Exh.05)
against unknown persons. It is admitted by (P.W.1) Ramtilak Sahani that he
cannot identify the person who stolen mobile, if shown to him. The evidence
of (P.W.1) Ramtilak Sahani is that his mobile handset was stolen by unknown
person.
8. To connect the accused with the commission of the offence it is
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Judgment -4- C. C. No. 1520/PW/2022
seen from the evidence of(P.W.2) Chand Shaikh that one mobile handset was
seized from the accused in his presence. however, he has not given any
description of the mobile phone which was allegedly seized vide panchanama
( Exh-07). According to the investigating officer (P.W.3) Balasaheb Pote, he
got secrete information that one person is coming at Link Road, near Railway
Hospital, accordingly he lead a trap alongwith police staff and panch
witnesses. Secrete informant saw one person and shown that the person has
come. The person who was apprehended was accused. A personal search of
the accused was taken and one mobile handset was found in the pocket of the
pant of the accused, which is seized and sealed under panchanama (Exh-7).
9. (P.W.3) Balasaheb Khote first said that, the mobile handset was
of Redmi company and after refreshing his memory by going through his diary
deposed that the mobile handset was of Vivo company. (P.W.3) Balasaheb
Khote identified the seized mobile when it was shown to him before the court.
10. On scrutiny of evidence, it can be seen that the informant is not
able to identify the person, who snatched his mobile. The panch witness failed
to depose the description of the mobile handset though it was seized from his
presence. The mobile handset was not shown to the informant during trial and
the investigation. At the time of examination of panch witness and informant
prosecution failed to produce the seized mobile handset.
11. The evidence of investigating officer and panch witness is not in
corroboration to each other about seizure of mobile handset of Vivo company.
To establish the chain of circumstances, the important link is missing that it
was not shown to the informant and identified by him as the same mobile
handset, which was taken away from his possession. The seizure of mobile
handset is also doubtful. The chain of circumstances are not established
beyond reasonable doubt to conclude that except accused no other person has
committed theft of mobile handset. Merely the accused has not tendered any
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Judgment -5- C. C. No. 1520/PW/2022
explanation about mobile handset is not the sole ground to conclude that he is
connected with the offence. For this reason, it is held that the prosecution
failed to prove that the accused has committed theft of mobile handset of
informant beyond reasonable doubt. Finding to point No.1 is in negative with
the following order :-
ORDER
1. Accused Mohammed Ittisam Mohammad Akhtar Khan is
acquitted for the offence punishable under Section 392 r.w. 34 of the Indian
Penal Code, vide section 248 (1) of the Cr.P.C.
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 property Vivo Company Mobile handset be returned to
the informant on verification after the appeal period. If already returned, it be
retained and bond stands cancelled.
6) The copy of the Judgment be forwarded to District Magistrate
vide Sec.365 of the Code of Criminal Procedure for further compliance.
7) Dictated and Pronounced in the open Court.
Date:-21/10/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 21/10/2022
Dictated on : 21/10/2022
Typed on : 21/10/2022
Signed on : 21/10/2022
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