Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C.NO.1699/PW/2019
MHMM180077342019 Received on 01/11/2019
Registered on 01/11/2019
Decided on 18/01/2022
Duration 02 Y. 02 M. 17 D.
Exh.No.-15
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.1699/PW/2019
b) The date of commission of
offence
: In between from 18/06/2019 to
20/06/2019
c) The name of the complainant if
any
: The State through Khar police
station. C.R. No.376/2019
d) The name of the accused persons,
parentage and residence
: 1. Kishor Nandesh Pawar @
Bunty, Age- 36 Yrs.
Occupation- Nil
R/o. Ravindra Arcade Society, D
Wing,Flat No.203, Manda
Titwala(E), Tal. Kalyan
District Thane.
2. Rahul Ravindra Gurav
(Convicted vide order dated
01.10.2021 on pleading guilty)
e) The offence complained of or
proved
: Under section 454, 457, 380, 34 of
Indian Penal Code.
f) The plea of the accused and his
examination, if any
: Accused pleaded not guilty and
claimed to be tried.
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g) The Final Order : The accused No.1 is acquitted
h) The date of such order : 18/01/2022
=====================================================
Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr.P.P.Khot
=====================================================
JUDGMENT
(Delivered on 18/01/2022)
1) The above named accused is charge-sheeted for the offence
punishable under sections 454, 457, 380, 34 of Indian Penal Code.
The case of prosecution in short is as under: -
2) On 20/06/2019 at about 13.30 hrs. informant Smt.Richa
Himanshu Bajaj, one Alma and her son came to Mumbai with her brother
Rohit from Pune. Informant opened the door of her house Flat No.202,
Kakkad Enclave, 9th Cross Road, Khar(W),Mumbai with the keys kept with
her. Aafter taking lunch at about 15.00 hrs. when she wants to send her son
for swimming, she went for opening the door of her cupboard and found that
the cupboard was already opened. On opening of the cupboard informant
found that ornaments and cash kept in cupboard were missing. Further she
saw that the lock of the drawer was also broken. At that time she confirmed
that there was theft in her house. Thereafter, informant along with her brother
Rohit went to Khar Police Station and then lodged report.
3) On the report of the informant offence was registered vide crime
No. 376/2019 punishable under section 454, 457, 380 r.w. 34 of IPC against
unknown person. After completion of investigation charge-sheet is filed
against accused No.1 and 2. The accused No.2 Rahul Ravindra Gurav pleaded
guilty. By accepting his plea my Ld. Predecessor convicted him for the
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Judgment 3 C.C.NO.1699/PW/2019
offence punishable under Section 457, 380 r.w.34 of Indian Penal Code by
Judgment dated 01/10/2021.
4) My Ld. Predecessor framed charge against the accused Kishor
Nandesh Pawar @ Bunty. The contents of the charge were read over and
explained to the accused in vernacular through Video conferencing to which
he pleaded not guilty and claimed to be tried. Plea of the accused was recorded
at Exh.6-A.
5) The prosecution has examined in all two witness i.e. P.W.No.1
Richa Himanshu Bajaj, informant at Exh.07 and P.W.2 Sachine Ramdas
Trimukhe, Investigating Officer at Exh.05.
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.14. 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 in between 18.06.2019 to 20.06.2019
at about 15.00 hrs. at Flat No.202, Kakkad
Enclave, 9th Road, Khar(W), Mumbai in
furtherance of common intention with
accused Rahul Gurav committed the offence
of lurking house trespass by entering into the
dwelling house in the possession of the
informant with the intention of committing
In the negative
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theft and committed an offence punishable
under section 457 r.w. 34 of Indian Penal
Code?
2] Whether the prosecution proved that the
accused on the aforesaid date, time and
place in furtherance of common intention
with accused Rahul Gurav committed theft in
the house of the informant used as a human
dwelling and thereby committed an offence
punishable under section 380 r.w.34 of the
Indian Penal Code?
In the negative
3] What order? Accused is acquitted.
REASONS
AS TO POINT NOs. 1 TO 3: -
8) All the points are taken together for discussion to maintain
brevity. As per the evidence of P.W.1 Richa Bajaj on 20/06/2019 when she
came from Pune at her house at about 12.00 noon she found that both the
locks of cupboard were broken and her jewellery diamond bracelet, two
diamond rings having green stone, six golden chains, diamond ear rings and
six golden bangles alongwith cash amount of Rs.1 Lakh and 1000 Dollors are
stolen. It is clear from the evidence of P.W.1 Richa Bajaj that FIR Exh.08 is
lodged against unknown person.
9) As per evidence of P.W.2 Sachin Trimukhe on suspicion and
after checking history-sheeters he arrested accused Kishor Pawar and Rahul
Gurav on making inquiry with them. On 29/08/2019 accused Kishor Pawar
voluntarily given disclosure statement that he alongwith Rahul Gurav ready to
show the places from where theft has been committed and the place where the
stolen articles are kept. This disclosure statement is recorded by P.W.2 Sachin
Trimukhe at Exh.10. It is further deposed by P.W.2 Sachin Trimukhe that he
alongwith accused, Police and panchas proceeded as per the direction of the
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accused, accused then showed Flat No.02 which was in the possession of
informant and taken them to Madh Jetty area at the house of accused Kishor
Pawar and taken out the articles kept in Almira in his residential house.
Accordingly, seizure panchanama Exh.11 was prepared in presence of
panchas by sealing the seized property.
10) As seen from the evidence of P.W.2 Sachin Trimukhe after
seizure of the articles vide panchanama Exh.11, he reopened the seal and
shown the articles again to the accused and separate panchanama Exh.12 was
prepared by him in presence of panchas. In cross-examination all the
suggestions are put to this witness in the nature of denial.
11) It is clear from the evidence on record that there is no direct
evidence against the accused. The case of the prosecution is based on
circumstantial evidence. The burden is on the prosecution to prove all the
chain of circumstances to link the accused with the commission of the offence.
12) The evidence available against the accused is his disclosure
statement and alleged recovery in view of the confession given by the accused
under Section 27 of the Indian Evidence Act( for short 'Act'). As per evidence
of P.W.2 Sachin Trimukhe the accused has shown the place of theft i.e. the flat
which was in possession of the informant. Under Section 27 of the Act the
word 'discovery' has two shades of the meaning, one is “find” and “detect" and
the other is 'to uncover or reveal'. 'Cover' means a thing which is hidden or
concealed or unknown. When such thing becomes known, revealed or
exposed, it can be said that the thing covered becomes discovered. It can be
also said that a thing is discovered on removal of cover. Therefore, the thing
or fact which was already known to a person, it is not required to be
discovered by the person. The Hon'ble Gujarat High Court had occasioned to
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come across with similar issue in case of Sarvansing Omkarsing Rathod
Vs. State of Gujarat reported in 2009(1) GLR 245. The Hon'ble Gujarat
High Court has interpreted Section 27 that, “As per the scheme of Section 27
of the Evidence Act, it is clear that the fact may be said to be discovered when
the knowledge of the existence of the fact was for the first time derived from
the information furnished by the accused. When the fact has already been
known by the police, there cannot be a discovery again of that fact as a result
of a statement made by the accused, subsequent to the original “discovery”. In
view of the scheme of Section 27 of the Act the place from where the alleged
theft was committed specifically mentioned in FIR (Exh.08) by the informant
herself. The place from where the alleged theft was committed was within the
knowledge of P.W.2 Sachin Trimukhe who was aware about registration of
the FIR as he was investigating this offence prior to the arrest of the accused.
For this reason the place from where alleged theft was committed is
discovered at the instance of accused is unacceptable.
13) Now coming to the recovery of articles from the possession of
the accused is concerned, according to P.W.2 Sachin Trimukhe after showing
the flat of informant accused had shown the place where he has kept the
articles which was the house at Madh Jetty, accused has taken out the articles
kept in an Almira in his residential house. It is the duty of the prosecution to
lead clear and unambiguous evidence against the accused. P.W.2 Sachin
Trimukhe has nowhere stated that the house which was shown by the accused
whether it was locked or opened. It is also not deposed by P.W.2 Sachin
Trimukhe that whether any person was present at the house of accused at the
relevant time when allegedly articles are taken out by the accused under
disclosure statement. In absence of this evidence the discovery statement of
the accused becomes doubtful.
14) As per prosecution two bangles, one bracelet studded with white
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stones, one silver coin, one white metal chain, one yellow metal chain, 03
American Dollors 100 denomination are recovered in this offence. On going
through the panchanama Exh.10 nearabout 142 articles are shown to be seized
from the disclosure of the accused. According to evidence of P.W.2 Sachin
Trimukhe after seizure of the articles he opened the seal, shown the articles to
the accused again and then prepared panchanama Exh.12. On perusal of
panchanama Exh.12 it reveals that the panchas were called with am intimation
that the accused are ready to show which of the seized articles are from which
particular offence registered with Police Station and by mentioning different
offence numbers distributed all the articles in about 16 offences of various
police stations. This evidence clearly shows that Investigation Officer has not
taken any pains to call informants and to identify from them the seized articles
which were stolen from their respective possession. It is necessary for the
prosecution to establish a close link between discovery of the material object
and there by to lead to the conclusion that the offence has been committed by
the accused in respect of identified recovered articles. As per panchanama
Exh.12 the Investigation Officer has used the opinion of the accused to include
a particular property in a particular crime. Under Section 27 of the Act only
the information leading to the discovery is admissible, not any opinion form
on it by the prosecution or by any other person. In case of Mustkeem @
Sirajudeen Vs. State of Rajasthan reported in 2011(11) SCC 724, Hon'ble
Apex Court has held that, “With regard to Section 27 of the Act, what is
important is discovery of the material object at the disclosure of the accused
but such disclosure alone would not automatically lead to the conclusion that
the offence was also committed by the accused. In fact, thereafter, burden lies
on the prosecution to establish a close link between discovery of the material
objects and its use in the commission of the offence. What is admissible
under Section 27 of the Act is the information leading to discovery and not any
opinion formed on it by the prosecution. In the light of the aforesaid well
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Judgment 8 C.C.NO.1699/PW/2019
settled principles of law by several authorities of this Court, we are of the
opinion that the judgment and order of conviction as recorded by Trial Court
and confirmed by High Court in Appellants appeals cannot be sustained in law.
The same are, therefore, hereby set aside and quashed”
15) In order to establish link between discovery of object with the
commission of offence the alleged recovered articles are required to be shown
and identified by the informant as those are the same which were stolen from
the possession of informant and recovered by the police. Absence of this
evidence establish missing link between alleged theft and the accused.
16) On scrutiny of the evidence it reveals that the FIR was lodged
against unknown person. As far as discovery of the place of offence at the
instance of accused is concerned cannot be considered as discovery as the
place of incidence was known to the Investigating Officer prior to recording of
disclosure statement of the accused. Investigation Officer has not deposed
clearly that the place from where accused has taken out the articles was locked
or opened or whether there was presence of any person at the relevant time.
To link the alleged recovery of articles with the commission of offence
identification of recovered articles is not done from the informant. All these
missing links clearly establishes that prosecution has failed to prove guilt of
the accused beyond reasonable doubt. It reveals from the final report that the
seized property is in safe custody. No one has come forward to claim the
property or no document is placed on record about disposal of the seized
property. It will be justified to direct delivery of seized property to its rightful
owner. Accordingly, Point No.1 to 3 are recorded in negative with the
following order.
ORDER
1) The accused Kishor Nandesh Pawar @ Bunty is acquitted of
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the offence punishable under Section 457, 380 r.w.34 of Indian Penal Code
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 muddemal property be given to the original owner of the
property 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.
6) Pronounced in the open court.
Date:18/01/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 18/01/2022
Dictated on : 18/01/2022
Typed on : 18/01/2022
Signed on : 18/01/2022
vnh
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