Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment – 1 – C.C.NO.1898/PW/2019
MHMM180087272019 Received on 03/12/2019
Registered on 03/12/2019
Decided on 23/03/2022
Duration 02 Y. 03 M. 20 D.
Exh.No.- 14
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.1898/PW/2019
b) The date of commission of
offence
: 21/07/2019
c) The name of the complainant if
any
: The State through Khar police
station. CR No.433/2019
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.
..2/-
-- 1 of 10 --
Judgment – 2 – C.C.NO.1898/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 : 23/03/2022
=====================================================
Learned counsel for Prosecution: APP Smt.M.F. Pakajade for State
Ld. Counsel for Accused : Adv. Mr.R.K.Gupta
=====================================================
JUDGMENT
(Delivered on 23/03/2022)
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 21/07/2019 informant Smt.Mira Harish Bijlani as usual was
playing game on her mobile till 03.30 a.m. and thereafter she left to her bedroom
for sleep. The maid servant of the informant namely Meena was also slept in the
bedroom of the informant at about 00.30 a.m.. In the morning at about 06.00
a.m. maid of the informant Meena woke up and she saw that the articles in the
house were scattered. Therefore she woke up the informant. When informant
take inspection of her house, she found that the articles kept in the dressing table
of her another bedroom were stolen. Informant frightened and she checked all the
rooms of her house and she found that some one has committed theft in her house
by entering through sliding window of her bedroom and stolen the articles i.e.
cash amount of Rs.30,000/- and one lady bracelet weighing 12 gms. worth
Rs.30,000/- kept in the drawer of the dressing table. Therefore, the informant
lodged the report to Police Station, Khar.
3) On the report of the informant offence was registered vide crime
No. 433/2019 punishable under sections 457, 380 r.w. 34 of IPC against
..3/-
-- 2 of 10 --
Judgment – 3 – C.C.NO.1898/PW/2019
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
Sachine Ramdas Trimukhe, Investigating Officer at Exh.07 and Vishwanath
Parshuram Sawant, pancha witness at Exh.12.
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.13. 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 21.07.2019 at about 03.30 to 6.00
hrs. at Flat No.201, Oyster Apartment, near
Women Nursing Home, 19th Road, Khar(W),
Mumbai in furtherance of common intention
with accused Rahul Gurav committed the
offence of lurking house trespass by entering
In the negative
..4/-
-- 3 of 10 --
Judgment – 4 – C.C.NO.1898/PW/2019
into the 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?
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 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.
9) The case of prosecution is based entirely on circumstantial
evidence. The FIR is lodged against the unknown person about theft of cash of
Rs.30,000/- and one 12 gms. Golden ladies bracelet of Rs.30,000/- from the
house of the informant Smt.Meera Bijlani. During investigation one bracelet
studded with white stones without any value has been recovered at the instance
of accused and charge-sheet is filed.
10) 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
inquiry he arrested accused Kishor Pawar and Rahul Gurav. On 29/08/2029
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
..5/-
-- 4 of 10 --
Judgment – 5 – C.C.NO.1898/PW/2019
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.201, Oyster Apartment,
near Nursing Lane, 19th 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.
11) 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 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.
12) 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 he 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 the place where he kept the articles,
accused 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. It
is further deposed by P.W.2 Vishwanath Sawant that accused shown Block
..6/-
-- 5 of 10 --
Judgment – 6 – C.C.NO.1898/PW/2019
No.08, Room No.97 and name as Pankaja Pratima Singh was written on the
name plate. The accused took out outer unit of the AC and opened the lock of
the house. They entered in a room of accused and 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 Amaezon 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 and panchanama was drawn vide
Exh.09. P.W.2 Vishwanath Sawant admitted the contents of panchanama Exh.09
as correct. P.W.2 Vishwanth Sawant deposed about panchanama dated
02/09/2010 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 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) 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
..7/-
-- 6 of 10 --
Judgment – 7 – C.C.NO.1898/PW/2019
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
is discovered at the instance of the accused is unacceptable.
14) 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. 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.
15) As per prosecution one yellow colour bracelet studded with white
..8/-
-- 7 of 10 --
Judgment – 8 – C.C.NO.1898/PW/2019
stones was recovered. On going through the panchanama Exh.09, near about 142
articles were 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.10. On perusal
of panchanama Exh.10 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.
16) 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 one golden bracelet studded with white stone was seized at
the instance of the accused. This evidence clearly establishes that the alleged
seizure of bracelet is not proved and P.W.2 Vishwanath Sawant was not witness
for seizure of the bracelet in this offence.
17) As per panchanama Exh.10 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
..9/-
-- 8 of 10 --
Judgment – 9 – C.C.NO.1898/PW/2019
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”
18) 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.
19) 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
..10/-
-- 9 of 10 --
Judgment – 10 – C.C.NO.1898/PW/2019
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. one yellow metal bracelet be returned to the
original owner after the appeal period.
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:23/03/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 23/03/2022
Dictated on : 23/03/2022
Typed on : 23/03/2022
Signed on : 23/03/2022
vnh
../-
-- 10 of 10 --