Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment – 1 – C.C.NO.1923/PW/2019
MHMM180087292019 Received on 05/12/2019
Registered on 05/12/2019
Decided on 21/01/2022
Duration 02 Y. 01 M. 16 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.1923/PW/2019
b) The date of commission of
offence
: In between the period from
28/06/2019 to 29/06/2019
c) The name of the complainant if
any
: The State through Khar police
station. CR No.396/2019
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, 380,511 34
of Indian Penal Code.
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Judgment – 2 – C.C.NO.1923/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 : 21/01/2022
=====================================================
Learned counsel for Prosecution: APP Smt.M.F. Pakajade for State
Ld. Counsel for Accused : Adv. Mr.P.P.Khot
=====================================================
JUDGMENT
(Delivered on 21/01/2022)
1) The above named accused are charge-sheeted for the offence
punishable under section 454, 457, 380, 511 34 of Indian Penal Code.
The case of prosecution in short is as under: -
2) On 28/06/2019 at about 10.00 hrs.one Narsanna working with
informant Shri.Shankar Poshanna Vekkam has locked the door of the office and
they both get asleep in the adjacent room. On 29/06/2019 at about 7.00 a.m. one
Ramesh working in the office of the informant came and told him that someone
has broken the lock of the Basera Construction Office. Thereafter, informant met
his owner Shri.Khatri and told about the incident. They both went to the said
office and saw that all the articles were found in order and nothing has been
stolen . The informant lodged the report to Police Station, Khar.
3) On the report of the informant offence was registered vide crime
No. 396/2019 punishable under sections 454, 457, 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 457, 380 r.w.34 of Indian Penal Code by Judgment
dated 01/10/2021.
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Judgment – 3 – C.C.NO.1923/PW/2019
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.09.
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 28.06.2019 at about 22.00 hrs. to
29/06/2019 at 07.00 hrs. at Flat No.112,
Ground Floor, 5th Road, TPS, 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 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 attempted to commit
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Judgment – 4 – C.C.NO.1923/PW/2019
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.08.
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.10. 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 No.112, 6th Road, TPS, Khar, 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.11 was prepared in presence of
panchas by sealing the seized property.
10) 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.
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Judgment – 5 – C.C.NO.1923/PW/2019
11) 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.
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 accused is unacceptable.
12) The accused is arrested in this offence on the basis that accused has
shown the place from where theft was committed. From the contents of FIR
nothing was stolen from the office of informant. Therefore, there is recovery of
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Judgment – 6 – C.C.NO.1923/PW/2019
any article in the offence has no relevance.
13) 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 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) 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:21/01/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 21/01/2022
Dictated on : 21/01/2022
Typed on : 21/01/2022
Signed on : 21/01/2022
vnh
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