Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C. NO. 396/PW/2018
Received on : 01/02/2018
Registered on : 01/02/2018
Decided on : 15/09/2018
Duration : 00 Y. 07 M. 14 D.
Exh. : 13
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
RAILWAY MOBILE COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY IMRAN R. MARCHIYA)
(JUDGMENT U/SEC. 355 OF CRIMINAL PROCEDURE CODE)
(a) The serial No. of the case; : 396/PW/2018
(b) The date of commission of
the offence;
: 19.01.2018
(c) The name of the informant
(if any);
: The State (Andheri Railway Police
Station in C. R. No.157/2018).
(d) The name of the accused person
and his parentage
and residence;
: Imtiyaz Baba Shaikh.
Age : 22 Years,
Occ. : RickshawDriver.
R/o :
Walmiki Chawl, Mogarapada
Zopadpatti, Near Amboli Phatak,
Jogeshwari – East, Mumbai.
(e) The offence complained of
or proved ;
: Under Section 392 of the Indian
Penal Code.
(f) The plea of the accused and
his examination (if any);
: The accused pleaded not guilty.
(g) The final order; : The accused is convicted for the
offence punishable under Section
379 of the Indian Penal Code.
(h) The date of such order; : 15/09/2018
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2 C.C. NO. 396/PW/2018
Mr. Gosavi, APP for the State.
Mr. Sanjay Singh, Advocate for the accused.
J U D G M E N T
(Delivered on 15/09/2018)
1 The accused in the dock has been arraigned for the offence
punishable under Section 392 of the Indian Penal Code.
2 In brief, it is the case of the prosecution that the informant Arvind
Yamuna Pal is doing job in MIDC, Andheri, Mumbai. On 19/01/2018 after
office hours, the informant came to Andheri Railway station for going towards
home. At that time at about 6.00 p.m. when the informant was boarding in a
Borivali slow local train on platform no. 3, he realised that in the crowd one
person has took out his wallet from the back side pocket of his pant. Thereafter
the informant immediately turned back and caught that person. The wallet of
the informant was in the hand of that person. When the informant tried to take
back his wallet from that person, said person scuffled with the informant. The
informant raised shouts. The policeman, who was present on the platform,
nabbed said person when he was running away. The informant gave
information about the incident to said policeman. The police took said person
to police station. The informant also went to the police station. In police
station the police took personal search of said person in presence of the panch
witnesses. During personal search, the wallet of black colour belonging the
informant was found in the possession of the said person. Four notes of
Rs.100/ denomination, photograph, colour photocopy of Aadhar card and
other documents were in the wallet of the informant. On inquiry by police said
person stated his name as Imtiyaz Baba Shaikh, R/o. Jogeshwari (East),
Mumbai (the accused). Thereafter the informant lodged report about the
incident against the accused in police station Andheri Railway.
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3 On the basis of the report lodged by the informant, crime No.
157/2018 came to be registered against the accused. The investigation
followed. The accused came to be arrested. During further investigation I.O.
recorded statement of witnesses and after completion of investigation, I.O.
filed chargesheet in the court.
4 My learned predecessor framed charge against the accused. The
accused pleaded not guilty and claimed to be tried. The prosecution has
examined in all four witnesses. The statement of the accused under Section
313 of the Code of Criminal Procedure came to be recorded at Exh. 12. The
defence of the accused is that at the time of the incident quarrel took place
between the informant and the accused and therefore the informant lodged
false report against the accused.
5 The points for determination alongwith my findings thereon as
under :
POINTS FINDINGS
1] Does the prosecution prove that the accused
robbed the informant of his wallet ?
No
2] Whether the accused has committed any
other offence ?
Yes, under section
379 of IPC
3] What order ? The accused is
convicted, as per
final order.
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REASONS
AS TO POINT NOS. 1 AND 2 :
6 The informant Arvind Pal (P. W. 1) deposes at Exh.P5 that the
incident took place on 19/01/2018 at about 6.00 p.m. at platform no. 3 of
Andheri Railway station. At the time of the incident when he was boarding in a
local train for going to Borivali, one person took out his wallet from the back
side pocket of his pant. He caught that person. He raised shouts. Police came
there. The accused was said person. An amount of Rs.400/ and some
documents were in his wallet. After the incident he lodged FIR (Exh.P6)
regarding the incident.
7 The learned APP argued that the evidence of the informant is
trustworthy and it is corroborated by the other evidence produced by the
prosecution. The prosecution has established guilt of the accused. Hence, the
accused may be convicted.
8 Per contra, the learned advocate of the accused argued that the
accused has been falsely implicated in the crime. There are variances in the
evidence of the prosecution witnesses. The panchwitness has not supported
the case of the prosecution and it creates doubt about the case of the
prosecution. The prosecution failed to prove the charge against the accused.
Hence, the accused may be acquitted.
9 I have gone through the evidence adduced by the prosecution. The
evidence of the informant is corroborated on material points by the contents of
FIR (Exh.P06) lodged by him. The evidence of the informant is also
corroborated by the evidence of P.C. Sudarshan Ballad (P. W. 2). He deposes at
Exh. P07 that on 19/01/2018 he was posted at police station Andheri
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5 C.C. NO. 396/PW/2018
Railway. On that day he was doing patrolling duty on platform no. 3 of
Andheri Railway station. P.C. Nikam was with him. At that time he heard
shouts “Chor, Chor”. The informant had caught the accused while he was
taking out his wallet from his possession. The informant gave information to
them about the incident. Thereafter he took the accused to Andheri Railway
police station. In police station Police Hawaldar Dalvi (P. W. 3) took the
personal search of the accused. In search one wallet was found in the
possession of the accused. Police Hawaldar Dalvi (P. W. 3) seized the same.
10 The evidence of the informant and P.C. Sudarshan Ballad (P. W.2)
is corroborated by the evidence of Police Hawaldar Satish Dalvi (P. W.3).
Police Hawaldar (P. W. 3) deposes at Exh. P8 on 19/01/2018 he was posted
at police station Andheri Railway. On that day P.C. Sudarshan Ballad (P. W. 2)
and P. C. Nikam had brought the accused to police station. The informant was
also with them. At that time the informant gave information to him that the
accused has committed theft of his wallet and the police personnel
apprehended the accused on platform no. 3 when he was going away.
Thereafter he took personal search of the accused in presence of two panch
witnesses. In the personal search of the accused one black colour wallet
(ArticleA) was found. Four notes of Rs.100/ denomination and one colour
photocopy of Aadhar card were in the said wallet. He seized the wallet in
presence of the panchwitneeses by drawing personal search panchanama
(Exh. P9). On the basis of FIR (Exh. P6) given by the informant, day officer of
the police station registered the crime. He himself conducted the investigation
of the crime. He recorded statement of the witnesses. He arrested the accused.
After completion of investigation, he filed chargesheet in the court.
11 Panchwiness Shamshu Sayyed (P. W. 4) deposes at Exh. P10 that
on 19/01/2018 police had called him at Andheri Railway police station. Police
had already recovered Rs. 400/ and mobile handset from the accused present
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before the court. Police had obtained his signature on personal search
panchnama (Exh. P9). During his cross examination, he admitted that police
had already prepared the panchanama and had only obtained his signature.
12 I have given due consideration the submissions of both parties.
The informant and P. C. Sudarshan Ballad (P. W. 2) have stated that the
informant caught the accused when he was taking out the wallet of the
informant from the pocket of his pant. However, Police Hawaldar Satish Dalvi
(P. W. 3) stated that the informant gave information to him that police
personnel apprehended the accused when he was going away. According to the
learned advocate of the accused this is a major contradiction and it shows that
prosecution witnesses have deposed false. However, I did not find much force
in the argument of the learned advocate of the accused. Due to lapse of time
between the date of the incident and date of evidence and due to the capacity
of the human memory, some variences in the evidence of the witnesses is
bound to occurred. The learned advocate of the accused cross examined the
prosecution witnesses, but nothing to be brought on record to disbelieve their
evidence. There is no any major contradiction in the ocular evidence adduced
by the prosecution. Therefore I find no reason to disbelieve the evidence of the
prosecution witnesses. Admittedly the panchwitness Shamshu Sayyed (P. W.4)
has not fully supported the case of the prosecution. However, on this sole
ground the entire case of the prosecution can not be discarded. It is not
unusual that the panchwitnesses are not supporting the case of the
prosecution. Further there is no principle of law that evidence of police
personnel can not be relied upon without corroboration. The prosecution has
established by the evidence of P. C. Sudarshan Ballad (P. W. 2) and Police
Hawaldar Satish Dalvi (P. W. 3) that during personal search of the accused one
black colour wallet (Article – A) was found in the possession of the accused.
The informant has identified his wallet before the court. There was no any
reason for the informant to lodged false FIR against the accused and to falsely
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implicate him in the crime. The defence of the accused is also not convincing.
According to the defence of the accused, at the time of the incident the
informant quarreled with the accused and due to quarrel the informant lodged
false report against the accused. However, the accused has not explained as to
why the quarrel took place between him and the informant. I do not find any
reason for the informant to quarrel with the accused except the reason that the
accused took out his wallet from his possession. Therefore I find no substance
in the defence of the accused.
13 As stated above, the evidence of the prosecution witnesses is
corroborating to each other. There was no reason for the informant to lodged
false report against the accused. The prosecution has established that the
wallet (Article – A) was found in the possession of the accused during his
personal search. Hence, it is established that the accused committed theft of
the wallet of the informant by taking out his wallet from the back side pocket
of his pant without his consent.
14 The accused is charged for the offence of robbery punishable
under section 392 of the Indian Penal Code. As per section 390 of the Indian
Penal Code, in all robbery there is either theft or extortion and theft is robbery,
if in order to the committing of theft or in committing the theft or in carrying
away or attempting to carrying away property obtained by the theft, the
offender for that purpose causes or attempts to cause to any person death or
hurt or wrongful restraint or fear of instant death or of instant hurt or of
instant wrongful restraint. As discussed above, the prosecution has established
that the accused committed theft by removing the wallet from the possession
of the informant without his consent. However, there is no any evidence that in
committing theft or in carrying away the property obtained by the theft, the
accused voluntarily caused or attempted to cause any hurt or any wrongful
restraint or any other act, as described in section 390 of the Indian Penal Code.
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As per the evidence of the informant, at the time of the incident the accused
took out wallet from the back side of his pocket and he caught the accused.
The evidence of the informant is not sufficient to prove the ingredients of the
offence punishable under section 392 of the Indian Penal Code. The evidence
of the prosecution establishes the offence against the accused only to the
extent of offence punishable under section 379 of the Indian Penal Code. As
per section 222 (2) of the Code of Criminal Procedure, when a person is
charged with an offence and facts are proved which reduce it to a minor
offence, he may be convicted of the minor offence, although he is not charged
with it. Hence, although the accused is not charged under section 379 of the
Indian Penal Code, he may be convicted for it. Considering all these, I hold
that the prosecution failed to prove guilt of the accused for the offence
punishable under section 392 of the Indian Penal Code and the prosecution has
established guilt of the accused for the offence punishable under section 379 of
the Indian Penal Code. Hence, I answer point no. 1 in the negative and point
no. 2 accordingly.
AS TO POINT NO. 3 :
15 The prosecution has established guilt of the accused beyond doubt
for the offence punishable under Section 379 of the Indian Penal Code.
Therefore, the accused is liable to be convicted. Considering the offence
proved against the accused, I am not inclined to extend the benefit of the
Probation of Offenders Act to the accused. Here I stop to hear the accused on
the point of sentence.
16 The accused submits that he is poor person and he is the only
earning member in his family. He therefore, prays that leniency may be shown
while giving punishment to him. Considering the nature of the offence
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established against the accused, I am of the view that the accused should be
sentenced to suffer simple imprisonment for eight months and to pay a fine of
Rs. 500/. The accused was arrested on 19.01.2018 and since then he is in jail.
The accused is entitled to get set off in respect of the period of detention vide
Section 428 of the Code of Criminal Procedure. The seized wallet including
the amount of Rs. 400/ and other documents belongs to the informant.
Therefore, the informant is entitled to receive back his wallet including amount
and documents. In the result, in answer to point no. 3, I pass the following
order.
ORDER
1 The accused is convicted for the offence punishable under Section 379
of the Indian Penal Code vide Section 248 (2) of the Code of Criminal
Procedure and he is sentenced to suffer simple imprisonment of eight
months and to pay a fine of Rs. 500/, in default to suffer simple
imprisonment for seven days.
2 The accused is acquitted for the offence punishable under Section 392
of the Indian Penal Code vide Section 248 (1) of the Code of Criminal
Procedure.
3 The accused be given set off in respect of the period from 19.01.2018
till today vide Section 428 of the Code of Criminal Procedure.
4 After appeal period, seized wallet including cash amount of Rs. 400/
and documents be given to the informant Arvind Yamuna Pal, R/o.
Laljipada, Kandivali (West), Mumbai.
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5 Copy of Judgment be given to the accused vide Section 363 of the
Code of Criminal Procedure.
sd/
Place : Mumbai.
Date : 15/09/2018.
(Imran R. Marchiya)
Metropolitan Magistrate,
Railway Mobile Court, Andheri, Mumbai.
Dictated On : 15/09/2018
Transcribed On : 15/09/2018
Checked and Signed On : 15/09/2018
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