Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment – 1 – C.C.NO.1739/PW/2019
MHMM180079282019 Received on 11/11/2019
Registered on 11/11/2019
Decided on 19/01/2022
Duration 02 Y. 02 M. 08 D.
Exh.No.-
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.1739/PW/2019
b) The date of commission of
offence
: 20/02/2019
c) The name of the complainant if
any
: The State through Khar police
station. CR No.101/2019
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.
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Judgment – 2 – C.C.NO.1739/PW/2019
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 : 19/01/2022
=====================================================
Learned counsel for Prosecution: APP Smt.M.F. Pakajade for State
Ld. Counsel for Accused : Adv. Mr.P.P.Khot
=====================================================
JUDGMENT
(Delivered on 19/01/2022)
1) The above named accused are charge-sheeted for the offence
punishable under section 457, 380, 34 of Indian Penal Code.
The case of prosecution in short is as under: -
2) On 20/02/2019 at about 19.20 hrs. informant Smt.Malika Desikan
was watching T.V. in the Hall of her house. At that time she heard some sound
inside the bedroom , she went in the bedroom and saw that the window of the
bedroom was opened and the door of iron cupboard was half opened. On
inspection of the articles kept in the cupboard she found that the articles are
scattered. She also found missing Silver Kalash and silver glass ( total worth
Rs.40,000/-) from her cupboard. She thereafter confirmed that one unknown
person has entered in her house through window and committed theft.
Thereafter, she lodged report at Khar Police station.
3) On the report of the informant offence was registered vide crime
No. 101/2019 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
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Judgment – 3 – C.C.NO.1739/PW/2019
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
Malika Desikan, informant at Exh.06 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 20.02.2019 at about 19.30 hrs.B
Wing Flat No.16, 6th Floor, Jivan Satyakam
Building, LIC Complex, Ambedkar 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 theft thereby
committed an offence punishable under
In the negative
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section 457 r.w. 34 of Indian Penal Code?
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 Malika Desikan on 20/02/2019 she was present in
her house. She found that her Silver Kalash and Silver glass were found missing
from the drawer of the cupboard and it was stolen by thief. It is clear from the
evidence of P.W.1 Malika Desikan 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
accused, accused then showed Flat No.16, 6th Floor, Jeevan Satyakam Building,
LIC Complex, Ambedkar Road, Khar(W) which was in the possession of
informant and taken them to Madh Jetty area at the house of accused Kishor
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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 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
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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
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 white metal glass 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
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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 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 at the instance of accused. Absence of
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Judgment – 8 – C.C.NO.1739/PW/2019
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 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.
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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:19/01/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 19/01/2022
Dictated on : 19/01/2022
Typed on : 19/01/2022
Signed on : 19/01/2022
vnh
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