Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.1804/PW/2019
MHMM180082572019 Received on 20/11/2019
Registered on 20/11/2019
Decided on 02/02/2022
Duration 03 Y. 02 M. 12 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.1804/PW/2019
b) The date of commission of
offence
:
In between the period from
31/05/2019 to 03/06/2019
c) The name of the complainant if
any
: The State through Khar police
station. CR No.322/2019
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 454, 457, 380, 34 of
Indian Penal Code.
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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 : 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 section 454, 457, 380, 34 of Indian Penal Code.
The case of prosecution in short is as under: -
2) On 31/05/2019 at about 7.00 hrs. the office of informant Smt.
Lin Lesly D'souza was closed and locked properly by one Smt. Devkanya
Dhar working as a Programme Director in her office. Thereafter, on
03/06/2019 in the morning at about 11.00 hrs. Account Officer of her office
Smt. Jenefer Dais informed her that theft was committed in the office. At that
time informant went to the office and she found that the articles in the office
were lying scattered so also the windows of the office were found opened.
The cupboard in the office was also kept opened, hence she inspects the same
and found that the packed of old used C.D.'s and the smart speaker of Alexa
Company kept on the table were found missing. On this situation informant
was sure about committing of theft in her office by entering through window.
Thereafter, she went to Police Station, Khar and lodged report against the
unknown person.
3) On the report of the informant offence was registered vide crime
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No. 322/2019 punishable under section 454, 457, 380 r.w. 34 of IPC against
unknown person. The Investigating Officer prepared spot panchanama,
recorded the statement of witnesses. He arrested the accused and after
completion of investigation filed the charge-sheet against accused No.1 and 2.
During the course of trial accused No.2 Rahul Ravindra Gurav pleaded guilty
to the offence and as per order dated 01/10/2021 he was convicted for the
offence registered against him.
4) My Ld. Predecessor framed charge Exh.5 against the accused
Kishor Nandesh Pawar @ Bunty. The contents of the charge were 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.06.
5) The prosecution has examined only one witness i.e. P.W.No.1
Sachine Ramdas Trimukhe, Investigating Officer at Exh.08.
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. 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 31.05.2019 at about 19.30 hrs.
03.06.2019 11.00 hrs. at B/108, Sai Sangeet
Building, Linking Road, Khar(W),Mumbai in
furtherance of common intention with
accused Rahul Gurav committed the offence
of lurking house trespass by entering into the
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Judgment 4 C.C. No.1804/PW/2019
office 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
office of the informant used for custody of
property 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. The prosecution has not examined the informant as the accused
admitted genuineness of the First Information Report Exh.07.
9) As per evidence of P.W.1 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.1 Sachin
Trimukhe at Exh.09. It is further deposed by P.W.1 Sachin Trimukhe that he
alongwith accused, Police and panchas proceeded as per the direction of the
accused, accused then showed Valntine Bldg. Flat No.501,15th Road, Khar(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
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in his residential house. Accordingly, seizure panchanama Exh.10 was
prepared in presence of panchas by sealing the seized property.
10) As seen from the evidence of P.W.1 Sachin Trimukhe after
seizure of the articles vide panchanama Exh.10, he reopened the seal and
shown the articles again to the accused and separate panchanama Exh.11 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.1 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
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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.07) by the informant.
The place from where the alleged theft was committed was within the
knowledge of P.W.1 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.1 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.1 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.1 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 Speakers of Amazon Alexa Company were
recovered in this offence. On going through the panchanama Exh.10
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nearabout 142 articles are shown to be seized at the instance of the accused.
According to evidence of P.W.1 Sachin Trimukhe after seizure of the articles
he opened the seal, shown the articles to the accused again and then prepared
panchanama Exh.11. On perusal of panchanama Exh.11 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. 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.11 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 formed 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
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Judgment 8 C.C. No.1804/PW/2019
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 during investigation. 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 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 and 2 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:-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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