Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C.No.2121/PW/2022
MHMM180098742022
Received on : 14/10/2022
Registered on : 14/10/2022
Decided on : 07/11/2022
Duration : 00 Y. 00 M. 23 D.
Exh.No.- 12
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.2121/PW/2022
b) The date of commission of
offence
: In between the period from
15/08/2022 to 16/08/2022
c) The name of the complainant if
any
: The State through Mahim police
station. C.R.No.1059/2021.
d) The name of the accused persons,
parentage and residence
: 1. Ganesh Suryakant Pukar
Age-47 Yrs.
Occupation - Nil,
R/o. Sanjay Chawl, Badnam Vasti,
60 feet Road, Dharavi,Mumbai
2. Rahil Suleman Shaikh @
Shakil, Age-48 Yrs.
Occupation - Nil,
R/o. R.No.02, Haji Noora Line,
behind Bada Jamati, near Luckky
Hogel, Bandra(W), Mumbai
3. Arman Ismile Shaikh
Age-25 Yrs.,
Occupation - Nil,
R/o. Sai Shraddha Chawl,
..2/-
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Judgment 2 C.C.No.2121/PW/2022
Laxmi Nagar, Kalyan(E),Thane &
Jama Masjid, Dargha Galli,
Bandra(W), Mumbai
e) The offence complained of or
proved
: Under Section 457, 380 r.w.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 are acquitted.
h) The date of such order : 07/11/2022
=====================================================
Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr. P.P.Khot
=====================================================
JUDGMENT
(Delivered on 07/11/2022)
1) The accused are charged for the offence punishable under section
455,380 r.w.34 of the Indian Penal Code.
2) The case of prosecution in brief as under----
On 15/08/2022 the informant, his wife , daughter and husband went
to sleep at 10.00 p.m.. On 16/08/2022 at about 5.00 a.m. granddaughter of
informant was crying. Son-in-law and daughter of the informant woke up. The
daughter of the informant went to see her mobile phone. She found that her
mobile handset and mobile handset of her husband are missing. The golden
ornaments kept in the cupboard were also not found. The cupboard was found
opened. The window of the kitchen was half opened. Informant dialed 100
Number, called police and lodged FIR against unknown person about theft of his
articles.
..3/-
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Judgment 3 C.C.No.2121/PW/2022
3) On the report of the informant offence was registered vide crime
No.1059/2022 punishable under sections 457,380 r.w.34 of Indian Penal Code
against the accused. During investigation accused was arrested and on the basis
of evidence collected charge-sheet is filed against the accused.
4) Charge is framed against the accused at Exh.02. The contents of
the charge were read over and explained to the accused to which the accused
pleaded not guilty and claimed to be tried. Defence of the accused is of total
denial. Plea of the accused was recorded at Exh.03, Exh.04 and Exh.05.
5) The prosecution has examined only one witnesses P.W.No.1 Girish
Bhaskar Chincholkar, informant ( Exh.07). Statement of accused under Section
313(1)(b) of Code of Criminal Procedure is recorded (Exh.09, Exh.10 and
Exh.11). The defence of accused is of false implication in this case.
6) 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 15/08/2022 at 10.00 p.m. to
16/08/2022 at 05.00 a.m. at Room No.101,
Anand Building, Shitladevi Mandir Road,
near Saraswat Bank Colony, Mahim(W),
Mumbai in furtherance of their common
intention committed lurking house trespass
by entering into the house of the informant
used as human dwelling after the hour of
sunset and before the hour of sunrise in order
to in order to commit theft and thereby
committed an offence punishable under
Section 457 r.w. 34 of Indian Penal Code?
In the negative.
2] Whether the prosecution proved that accused
on the aforesaid date, time and place in
furtherance of their common intention
..4/-
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Judgment 4 C.C.No.2121/PW/2022
committed theft of gold ornaments and cash
amount ( Total worth Rs.1,88,000/-) from the
house of the informant used as a human
dwelling and thereby committed an offence
punishable under Section 380 r.w.34 of Indian
Penal Code?
In the negative.
3] What order? Accused are acquitted.
R E A S O N S
AS TO POINT NO.1 AND 2 :
7. Prosecution has examined only one witness i.e. (P.W.1) Girish
Bhaskar Chincholkar. As per version of Girish Bhaskar Chincholkar golden
ornaments, cash, five mobile hand sets, four ATM Cards and two wallet were
stolen. According he lodged the report of the incidence to the police station
against unknown persons.
8. The prosecution has closed the evidence. From the allegations it is
revealed that what was stolen is not recovered, but is recovered in a different
form. The circumstantial evidence is not sufficient to prove that accused has
committed the offence of theft by entering into the house of the informant. In
absence of substantive evidence it is held that prosecution failed to prove the
guilt of the accused beyond reasonable doubt. Findings to the Point No.1 and 2
is recorded in the negative. Following order is pass.
O R D E R
1) The accused No.1)Ganesh Suryakant Pukar, 2) Rahil Suleman
Shaikh @ Shakil and 3) Arman Ismile Shaikh are acquitted of the offence
punishable under Section 457, 380 vide Section 248(1) of the Code of Criminal
Procedure.
2) Bail bonds of accused No.1 Ganesh Suryakant Pukar and
..5/-
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Judgment 5 C.C.No.2121/PW/2022
accused No.2 Rahil Suleman Shaikh @ Shakil stands cancelled and cash
surety if any be refunded to accused.
3) The accused No.3 Arman Ismile Shaikh is in jail. He be released
forthwith if, not required in any other offence. Inform the Jail Authority
accordingly.
4) The accused No.3 Arman Ismile Shaikh 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.
5) Seized property be returned to the informant on verification after
the appeal period. If already returned, it be retained and bond stands cancelled.
6) The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of the Code of Criminal Procedure for further compliance.
( Dictated and pronounced in open Court.)
Date:-07/11/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai
Delivered on: 07/11/2022
Dictated on : 07/11/2022
Typed on : 07/11/2022
Signed on : 07/11/2022
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