Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment – 1 – C.C.NO.1897/PW/2019
MHMM180087252019 Received on 03/12/2019
Registered on 03/12/2019
Decided on 15/03/2022
Duration 02 Y. 03 M. 12 D.
Exh.No.- 13
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.1897/PW/2019
b) The date of commission of
offence
: 17/07/2019
c) The name of the complainant if
any
: The State through Khar police
station. CR No.424/2019
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, 380,511 34 of
Indian Penal Code.
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Judgment – 2 – C.C.NO.1897/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 : 15/03/2022
=====================================================
Learned counsel for Prosecution: APP Smt.M.F. Pakajade for State
Ld. Counsel for Accused : Adv. Mr.R.K.Gupta
=====================================================
JUDGMENT
(Delivered on 15/03/2022)
1) The above named accused are charge-sheeted for the offence
punishable under section 454, 380, 511, 34 of Indian Penal Code.
The case of prosecution in short is as under: -
2) On 17/07/2019 at about 05.50 hrs. informant Kum.Shruti Umesh
Khovala has heard sound of opening of sliding windows of the Hall, she saw
outside from balcony however she could not see anything. After some time again
she heard sound of opening of sliding of windows, hence she saw there and
found that one unknown person with one leg inside the balcony and one outside
the balcony. By hearing the shouts of informant that person run away towards
hall. Thereafter, informant made phone call to the caretaker Shrikrishan and
asked him whether anyone is arrived to which he said no one was arrived.
Thereafter, she came outside in the hall and saw that the windows of the Hall
were partly opened. Thereafter, she shouted to Guard for help. She and
watchman together tried to search that unknown person but no one was found
there. They saw the windows of the hall and found that someone was entered
the hall by breaking the latch of the windows. Thereafter, she called office boy
Sandesh Nair on phone. As she was frightened she went to the police station,
Khar alongwith said Sandesh in the evening and lodged the report.
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Judgment – 3 – C.C.NO.1897/PW/2019
3) On the report of the informant offence was registered vide crime
No. 424/2019 punishable under sections 454, 380, 511 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 454, 380, 511 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 only one witness i.e. P.W.No.1
Sachine Ramdas Trimukhe, Investigating Officer at Exh.07.
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.12. 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 17.07.2019 at about 5.50hrs. at
Room No.101, 01st floor, Oyster Building,19th
Road, near Womens Hospital, Khar(W),
Mumbai in furtherance of common intention
with accused Rahul Gurav committed the
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Judgment – 4 – C.C.NO.1897/PW/2019
offence of lurking house trespass by entering
into the office in the possession of the
informant with the intention of committing
theft thereby committed an offence
punishable under section 454 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 attempted to commit
theft in the office of the informant used for
custody of property thereby committed an
offence punishable under section 380,511 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.12.
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.08. 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 Oyster Building, Road No.19, Near Women
Hospital, Khar(W), Mumbai 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
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Judgment – 5 – C.C.NO.1897/PW/2019
articles kept in Almira in his residential house. Accordingly, seizure
panchanama Exh.09 was prepared in presence of panchas by sealing the seized
property.
10) 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 attempted 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
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. The place from where the alleged theft wascommitted
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
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is discovered at the instance of accused is unacceptable.
11) As per prosecution nothing is stolen from the house of informant.
This is attempted theft. No evidence is on record to establish that it was the
accused who tried to enter in the house of informant with intention to commit
trespass and theft.
12) 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. These missing links clearly establishes that
prosecution has failed to prove guilt of the accused beyond reasonable doubt
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 454, 380, 511 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) The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of the Code of Criminal Procedure for further compliance.
5) Pronounced in the open court.
Date:15/03/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 15/03/2022
Dictated on : 15/03/2022
Typed on : 15/03/2022
Signed on : 15/03/2022
vnh
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