Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.1700/PW/2019
MHMM180077362019 Received on 01/11/2019
Registered on 01/11/2019
Decided on 02/01/2022
Duration 02Y. 02 M. 01 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.1700/PW/2019
b) The date of commission of
offence
: 20/07/2019
c) The name of the complainant if
any
: The State through Khar police
station. CR No.437/2019
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)
e) The offence complained of or
proved
: Under section 457, 380, 34 of
Indian Penal Code.
f) The plea of the accused and his : Accused pleaded not guilty and
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Judgment 2 C.C. No.1700/PW/2019
examination, if any claimed to be tried.
g) The Final Order : The accused is acquitted.
h) The date of such order : 02/02/2022
=====================================================
Learned counsel for Prosecution: APP Smt.M.F. Pakajade for State
Ld. Counsel for Accused : Adv. Mr.P.P.Khot
=====================================================
JUDGMENT
(Delivered on 02/02/2022)
1) The above named accused is charge-sheeted for the offence
punishable under sections 457, 380, 34 of Indian Penal Code.
The case of prosecution in short is as under: -
2) On 20/07/2019 at about 21.05 hrs. the sister and brother-in-law of
the informant Shri.Mayank Govindji Momaya came to his house to meet them.
Thereafter at about 22.50 hrs. they went of the house, at that time informant had
gone downstairs to see off them. Thereafter, at about 22.55 hrs. they returned to
their house and wife of informant went in the kitchen and he went in the
bedroom for changing clothes. Thereafter, informant and his wife watching the
T.V. in the Hall. At about 23.30 hrs. by switching off the T.V. they both went to
the bedroom for taking rest. At that time they saw that the cupboard and drawer
in the cupboard were opened in the bedroom. So also the informant saw that on
the bed one box was lying empty wherein he kept his flat and vehicle keys,
money and wallet. He also saw one gift box empty wherein there idol of Lord
Ganesha was kept. He also found One Rolex old used watch, debit card and cash
amount of Rs.35,000/- from his drawer and one hand bag of his wife were
missing. On this the informant confirmed that some unknown person by entering
his house committed theft of his above mentioned articles. Thereafter, he went
to Khar Police Station and then lodged report against the unknown person.
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Judgment 3 C.C. No.1700/PW/2019
3) On the report of the informant offence was registered vide crime
No. 437/2019 punishable under sections 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 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 .
5) The prosecution has examined in all two witnesses i.e. P.W.No.1
Mayank Govindji Momaya, informant at Exh.07 and P.W.2 Sachine Ramdas
Trimukhe, Investigating Officer at Exh.09.
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 on 20.07.2019 at about 23.00 to
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6.00 hrs. at 3/B, Horizon Apartment, Nargis
Dutta Road, near Rajkumar Chowk,
Bandra(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 theft thereby
committed an offence punishable under
section 457 r.w. 34 of Indian Penal Code?
In the negative
2] Whether 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 for human
dwelling 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 Mayank Govindji Momaya on 20/07/2019 he was
present in his house with his wife. On that day his sister namely Bina and
bother-in-law have come to his house. He went to see off his sister out of the
building. When he returned, he saw that cupboard of his bedroom was opened.
He found that his watch of Rollex Company, cash amount of Rs.35,000/-, his
purse, vehicle key, licence, RC Book of vehicle were missing from the drawer of
the cupboard. Informant asked the watchman as to who has come in the
building. Thereafter he made phone call to 100 number. Police came to spot.
Thereafter he lodged FIR Exh.08 against unknown person in Khar Police
Station.
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Judgment 5 C.C. No.1700/PW/2019
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
accused, accused then showed 3/B Horizan Apartment, Nargis Dutta Road,
Rajkukar Chowk, Bandra(W) 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
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Judgment 6 C.C. No.1700/PW/2019
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 occasion to 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 at the instance 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
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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 one blue colour Samsung Company J-2 Model,
Mobile Phone worth Rs.7,000/- has been seized. 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 an 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.
15) 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
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Judgment 8 C.C. No.1700/PW/2019
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 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”
16) 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 at the instance of accused. Absence of
this evidence establish missing link between alleged theft and the accused.
17) 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 record that seized property already given
on bond to Mayank Govindji Momaya. It will be justified to direct retention of
property with him.
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Judgment 9 C.C. No.1700/PW/2019
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 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 is already returned to its owner. His
Supurtnama to that effect stands cancelled.
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:02/02/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 02/02/2022
Dictated on : 02/02/2022
Typed on 02/02/2022
Signed on : 02/02/2022
vnh
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