Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment – 1 – C.C.NO.1899/PW/2019
MHMM180087282019 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 C OURT 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.1899/PW/2019
b) The date of commission of
offence
: 31/07/2019
c) The name of the complainant if
any
: The State through Khar police
station. CR No.471/2019
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 9 --
Judgment – 2 – C.C.NO.1899/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 457, 380 r.w. 34 of Indian Penal Code.
The case of prosecution in short is as under: -
2) Informant is from Belgium and staying in Mumbai for her work.
Informant has taken a flat at Jolly Friends Building. On 20/07/2019 to
04/08/2019 the informant locked her flat and left for Belgium. On 21/07/2019
the informant got phone from her colleague Drias Hozda that window of her flat
is opened and he has doubt that theft has taken in a flat. Informant allowed her
colleague to enter into the flat and to see what has stolen. It was also informed to
the informant that one person is found in CCTV Camera while leaving her flat.
On 04/08/2019 informant returned to her flat and found that the articles are
scattered in two bed rooms and a hall. Informant also found that nearabout eight
articles of diamond and gold as mentioned in the FIR were stolen. One camera
of Olympus Company, one HTC mobile handset, Indian currency of Rs.12,000/-,
two hundred Euros are stolen from her flat. The informant lodged the report to
Police Station, Khar on 05/08/2019.
3) On the report of the informant offence was registered vide crime
No. 471/2019 punishable under sections 457, 380 r.w. 34 of IPC against
..3/-
-- 2 of 9 --
Judgment – 3 – C.C.NO.1899/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 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 31.07.2019 at about 06.00 hrs at
Flat No.402, Jolly Friends Building, 15th
Road, Khar(W), Mumbai in furtherance of
common intention with accused Rahul Gurav
committed the offence of lurking house
trespass by entering into the office in the
possession of the informant with the intention
In the negative
..4/-
-- 3 of 9 --
Judgment – 4 – C.C.NO.1899/PW/2019
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 commit theft in the
house of the informant used as a 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.
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 Flat No402, Jolly Friends Building, 15th Road,
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 articles
kept in Almira in his residential house. Accordingly, seizure panchanama
Exh.09 was prepared in presence of panchas by sealing the seized property.
..5/-
-- 4 of 9 --
Judgment – 5 – C.C.NO.1899/PW/2019
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 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.
..6/-
-- 5 of 9 --
Judgment – 6 – C.C.NO.1899/PW/2019
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
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 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 two pearl necklace worth Rs.18,000/- are
recovered in this offence. On going through the panchanama Exh.10 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.10. On perusal of panchanama Exh.10 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
..7/-
-- 6 of 9 --
Judgment – 7 – C.C.NO.1899/PW/2019
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.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 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 during investigation. Absence of this
evidence establish missing link between alleged theft and the accused. There is
..8/-
-- 7 of 9 --
Judgment – 8 – C.C.NO.1899/PW/2019
no specific mark, sign or numbers on the currency notes by which those could
have been identified as same which were stolen from the house of informant.
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. There is no specific marks,
sign or numbers on seized currency notes to link with this offence. 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
..9/-
-- 8 of 9 --
Judgment – 9 – C.C.NO.1899/PW/2019
to submit the report accordingly to this Court.
4) Seized property be returned to its 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) 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
../-
-- 9 of 9 --