Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment – 1 – C.C.NO.1812/PW/2019
MHMM180082602019 Received on 21/11/2019
Registered on 21/11/2019
Decided on 05/05/2022
Duration 02 Y. 05 M. 14 D.
Exh.No.-16
Accused 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) The Serial number of the case : C.C. No.1812/PW/2019
b) The date of commission of
offence
: In between the period from
18/06/2019 to 19/06/2019
c) The name of the complainant if
any
: The State through Khar police
station. CR No.373/2019
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)
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Judgment – 2 – C.C.NO.1812/PW/2019
e) The offence complained of or
proved
: Under section 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.
g) The Final Order : The accused is acquitted
h) The date of such order : 05/05/2022
=====================================================
Learned counsel for Prosecution: APP Smt.M.F. Pakajade for State
Ld. Counsel for Accused : Adv. Mr.R.K.Gupta
=====================================================
J U D G M E N T
(Delivered on 05/05 /2022)
1) The above named accused is charged for the offence punishable
under section 457, 380, 34 of Indian Penal Code( For short Code).
The case of prosecution in short is as under: -
2) The informant and his wife are residing in separte flat of the same
building. On 19/06/2021 at about 4.30 a.m. informant Mr. Harsh Rajendranath
Lamba received a phone call of his daughter Ambika that theft has taken place
in a flat where they are residing. When informant reached there, at that time his
wife told him that on 18/06/2019 at about 11.00 p.m. she and her daughter
Ambika were asleep and on 19/06/2021 at about 4.00 a.m. as usual they got up
and went to bedroom. The wife of the informant found the cupboard in bedroom
was opened. On taking search of the cupboard she found that one green colour
hand bag was missing. She also found that the drawer of the cupboard was
opened and the cash amount of Rs.10,000/- kept for daily expenses was
missing. The window of the bedroom is opened and the grills of the window
were broken. Hand bag kept in a cupboard was found kept outside on the grills
of the window and cash amount of Rs.10,000/- kept in the said hand bag was
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Judgment – 3 – C.C.NO.1812/PW/2019
missing. One white colour Samsung Company S6 Mobile phone was also found
missing. The informant lodged the report against unknown person at Police
Station, Khar about theft of cash, articles and mobile.
3) On the report of the informant offence registered vide crime No.
373/2019 punishable under sections 457, 380 r.w. 34 of the Code 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 of guilty. My Ld. Predecessor convicted him for the
offence punishable under Section 457, 380 r.w.34 of Indian Penal Code by
Judgment & order 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 three witnesses P.W.No.1
Sachine Ramdas Trimukhe, Investigating Officer at Exh.07, P.W.2 Vishwanath
Parshuram Sawant, pancha witness at Exh.12 and P.W.3 Harsh Rajendranath
Lamba, informant at Exh.13.
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.15. 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.
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Judgment – 4 – C.C.NO.1812/PW/2019
Sr.No POINTS FINDINGS
1] Whether the prosecution proved that the
accused in between the period from
18/06/2019 at about 23.00 hrs. to 19/06/2019
at about 04.00 hrs. at B/301, Amrut Society,
Carter Road, Khar (W), Mumbai in
furtherance of common intention with
accused Rahul Gurav committed the offence
of lurking house breaking by entering into the
house in the possession of wife of 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 of
cash , mobile and articles from the house in
possession of wife of informant 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 case of prosecution is entirely based on circumstantial evidence. The FIR is
lodged against the unknown person about theft taken place at the huse of wife of
informant. During investigation only cash amount of Rs.10,000/- has been
recovered at the instance of accused Kishor Pawar.
9) To establish the chain of circumstances against the accused the
evidence of P.W.1 Sachin Trimukhe is important. As per evidence of P.W.No.1
Sachin Trimukhe on suspicion and after checking history sheeter and on making
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Judgment – 5 – C.C.NO.1812/PW/2019
inquiry he arrested accused Kishor Pawar and Rahul Gurav. 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.08. It is further deposed by P.W.1 Sachin
Trimukhe that he alongwith accused, police and panchas proceeded as per
direction of the accused, accused then shown Flat No.301, Amrut Society, Carter
Road, Khar(W),Mumbai which was in possession of informant. After disclosure
statement accused taken them to Madh Jetty area at his house and taken out the
articles kept in Almira inside his residential house. Accordingly seizure
panchanama Exh.09 was prepared in presence of panchas by sealing the seized
property.
10) As seen from the evidence of P.W.1 Sachin Trimukhe while seizing
the articles vide panchanama Exh.09 he reopened the seal and shown the articles
to both the accused and separate panchanama vide Exh.10 was prepared by him
in presence of panchas. In cross-examination all the suggestions are put to the
witness in the nature of denial.
11) In support of P.W.No.1 Sachin Trimukhe, panch witness P.W.No.2
Vishwanath Parshuram Sawant deposed that he was called at Khar Police Station
in detection room for panchanama on 29/08/2019. Accused gave disclosure
statement in his presence that he is ready to show the places and the places where
the articles are kept. Disclosure statement was recorded in his presence and
P.W.2 Vishwanath Sawant admitted contents of Exh.08, as correct. In evidence
of P.W.2 Vishwanath Sawant deposed in detail the places which were shown by
the accused as a place from where the theft was committed. The address of the
informant is one of the place deposed by P.W.2 Vishwanath Sawant and shown
by the accused Kishor Pawar. As deposed by P.W.2 Vishwanath Sawant, accused
asked them to accompany him to the place where he kept the articles, accused
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taken them to Versova Jetty, Andheri(W). They alighted from the vehicle and
boarded in a boat to proceed at Madh Jetty. Then accused shown one house
which was locked and disclosed that he is residing in that house on rent.
12) P.W.2 Vishwanath Sawant further deposed that accused shown
Block No.08, Room No.97 and name as Pankaja Pratima Singh was written on
the name plate. The accused took out keys from outer unit of the AC and opened
the lock of the house. On entering in a room the accused taken out one bag
containing articles from iron cupboard. The articles which were found as
deposed by P.W.2 Vishwanath Sawant are speaker of Amazon Company, one I-
pad of Apple Company, three mobile phones, 34 wrist watches and currency of
Indonesia, Omen and america and an Indian currency of Rs.25,830/-, seven
earrings, four bracelets, one Katavani of 15 inches, one knife of 15 inches, one
Khanjir of 09 inches and 05 different pendants with coloured stones. All the
articles were sealed and seized in his presence by drawing panchanama (Exh.09)
(P.W.2) Vishwanth Sawant deposed about panchanama dated 02/09/2019 at
(Exh.10)that he was called at Police station, informed that the articles are to be
opened as accused is ready to show which articles is of which offence. PSI
Trimukhe told to P.W.2 Vishwanath Sawant that the property which is seized is
in respect of offence registered at Khar, Bandra, Santacruz and Juhu and it is to
be separated. Then accused Kishor Pawar and Rahul Gurav disclosed the
particular property is of particular offence.
13) According to P.W.No.3 Harsh Rajendranath Lamba, informant
renovation of his flat was going on, one person entered in the flat through grills
of the window, went to the cupboard, taken out certain articles and left from the
above flat. The footprints of that person were also impressed on the floor. After
that person left, his daughter got up from the sleep, she came to know about the
theft and she called him. A cash of Rs.10,000/-, one mobile handset of Samsung
Company and small jewellery of Rs.15,000/- to 20,000/- were stolen. Then he
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lodged FIR Exh.14 at police station.
14) The evidence available against the accused is disclosure statement
and alleged recovery in view of the statement 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 in case of Sarvansing Omkarsing Rathod Vs. State of
Gujarat reported in 2009(1) GLR 245, 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.
15) 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 the accused is unacceptable.
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16) Now coming to the recovery of articles at the instance of the
accused. According to P.W.1 Sachin Trimukhe after showing the flat of
informant accused had shown the place where he has kept the articles. The place
was the house at Madh Jetty, accused has taken out the articles kept in an Almira
in his residential house. As per the evidence of P.W.No.2 Vishwanath Parshuram
Sawant the accused shown the house where the articles were kept was locked,
was having name plate by name Pankaja Pratima Singh, accused taken out keys
from outer unit of AC and opened the lock of the house, then they entered in the
house, accused taken out one bag from iron cupboard containing articles. On
comparing the evidence of P.W.1 Sachin Trimukhe and P.W.2 Vishwanath
Sawant is not in corroboration with each other. The reason is being investigating
officer not deposed in detail as deposed by P.W.2 Vishwanath Sawant.
17) As per prosecution 20 Indian currency notes of Rs.500/-
denomination are recovered in this offence. On going through the panchanama
Exh.10, near about 142 articles were seized at the instance of the accused. The
cash amount seized is more than the cash amount shown in this offence.
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 an 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.
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18) P.W.No.2 Vishwanath Swant described the various articles which
are allegedly seized at the instance of the accused. P.W.2 Vishwanath Sawant
nowhere deposed that 20 currency notes of Rs.500/- denomination were seized
at the instance of the accused. This evidence clearly establishes that the alleged
seizure of currency notes is not proved and P.W.2 Vishwanath Sawant was not
witness for seizure of the currency notes in this offence.
19) 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 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 appeals cannot be sustained in law. The
same are, therefore, hereby set aside and quashed”
20) 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. There is
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no substantive evidence to establish time between seizure of currency notes and
currency notes stolen from the house of wife of informant.
21) 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 cash with the commission of offence no substantive
acceptable evidence is given by the prosecution. 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 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 property i.e. 20 currency notes of Rs.500/- denomination be
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returned to the original owner after the 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) Dictated on computer and pronounced on Video Conferencing in
the open court.
Date:-05/05/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 05/05/2022
Dictated on : 05/05/2022
Typed on : 05/05/2022
Signed on : 05/05/2022
vnh
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