Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C. No. 1139/PW/2018
Filed on : 20042018
Registered on : 20042018
Decided on : 16102019
Duration : 01Y, 05M, 26D
Exh. : 25
IN THE COURT OF THE ADDIL. CHIEF METROPOLITAN MAGISTRATE,
22nd COURT, ANDHERI, MUMBAI.
(Presided Over by S. N. SALVE)
Judgment Under Section 355 of the Code of
Criminal Procedure
(a) The serial & CNR No. of
the case;
: C. C. No. 1139/PW/2018
CNR No.MHMM190048942018
(b) The date of commission of
the offence;
: 07032018
(c) The name of the
complainant
(if any);
: The State of Maharashtra
(At the instance of M.I.D.C.
Police Station in Crime No.
104/2018)
(d) The name of the accused
person and his parentage
and residence;
: 1)
2)
Arif Chand Khan
Age : 28 yrs. Occu. : Nil,
R/o.: Room No. 1,
Noori Chawl, Gate No. 3,
Malvani, Malad (W),
Mumbai.
Asif Chand Khan
Age : 28 yrs. Occu. : Nil
R/o.: Room No. 1,
Noori Chawl, Gate No. 3,
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2 C.C. No. 1139/PW/2018
3)
4)
Malvani, Malad (W),
Mumbai.
Sahil Abdul Ganja
Age : 23 yrs, Occu. : Nil
R/o.: Kasim Patel Chawal,
V.K. Wadi, Main Road,
Dharavi, Mumbai
Milind Manohar Sawant
Age : 23 yrs. Occu : Nil
R/o.: Room No. 114,
Renuka S.R.A Building,
Charkop, Kandivali (W)
Mumbai.
(e) The offence complained
of or proved;
: Under Section 379 r/w Section 34
of the 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; : Accused No. 1 is convicted and
accused Nos. 2 to 4 are acquitted.
(h) The date of such order; : 16102019
Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Shri. Chavan for accused.
J U D G M E N T
(Delivered on 16102019 )
The accused are prosecuted for the offence punishable
under section 379 read with section 34 of the Indian Penal Code (For
short, the IPC) for having in furtherance of their common intention
intending to take dishonestly certain movable property viz. Activa
motorcycle No. MH47AC3556 out of the possession of the informant
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3 C.C. No. 1139/PW/2018
Vikas Bhute without his consent, moved it in order to such taking and
thereby committed theft.
2. Narrated shortly, the prosecution case is that the informant
is working as a Gym Trainer at SEEPZ, M.I.D.C. and Reliance Energy,
Aarey Colony. On 07032018 as usual he parked his Activa motorcycle
No.MH47AC3556 in front of Domino's Pizza Shop at SEEPZ,
M.I.D.C., Andheri. At about 9.15 p.m. when he came back, he saw
that his Activa was missing. He took search of it but it was not found.
After this incident, he lodged report with Police Station M.I.D.C.. On
the basis of the aforesaid report, the offence is registered against
unknown person vide Crime No.104/2018 under Section 379 of the
IPC.
3. The initial investigation of the crime was carried out by PSI
Nalawade. Firstly, he visited the place wherefrom the Activa No. MH
47AC3556 was stolen and prepared its panchanama. Initially, the
police were clueless about the author of crime. The accused were
arrested in connection with the Crime No 19/2018 under Sections
420, 465, 467 468 and 471 of IPC registered with Police Station
Bandra. The accused No. 1 while in police custody in the aforesaid
crime made a memorandum statement revealing that he along with
co accused committed theft of Activa No. MH47AC3556 and shown
his willingness to point out the stolen property. Accordingly,
memorandum statement as above was recorded in presence of two
panchas and on pointing out by the accused No. 1, the stolen Activa
was recovered in presence of panchas. Accordingly, custody of the
accused was sought in the present crime and the stolen Activa was also
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4 C.C. No. 1139/PW/2018
got transferred in the present crime. On completion of investigation,
PSI Aahire submitted chargesheet.
4. The Charge (Exh. 2) under Section 379 read with Section
34 of the IPC came to be framed against all the accused. It was read
over and explained to them in their vernacular to which they pleaded
their innocence and claimed to be tried. The statements of accused
under section 313 of the Cr.P.C. are recorded at Exh.24. Their defence
is that of total denial.
5. The points for determination along with my findings with
reasons thereon are as follows:
Sr.
No.
Points Findings
1. Whether the prosecution proves that
the accused in furtherance of their
common intention intending to take
dishonestly Activa motorcycle No.
MH47AC3556 out of the possession
of the informant Vikas without his
consent, moved it in order to such
taking and thereby committed theft?
In the affirmative
only against the
accused No. 1
2. What order ? 	The accused No.1 is
convicted and rest
of the accused are
acquitted.
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: R E A S O N S :
Point No.1 :
6. The prosecution, in support of its case, has examined in
all five witnesses. They are, the informant Vikas Bhute (PW1), Raju
Gautam (PW2) who happens to be panch witness on panchnama
Exh.14, Mohd. Shaikh (PW3) who happens to be a panch witness to
the memorandum statement Exh.16 & seizure panchnama Exh.17, PSI
Shyam Ahire (PW4) who carried out the investigation and API Irfan
Shaikh (PW5) who recorded memorandum statement of accused No.1
and seized the stolen Activa in pursuance of memorandum statement.
Besides, the prosecution has also relied upon documentary evidence viz.
FIR (Exh.11), Memorandum Statement made by accused No.1
(Exh.16) and Recovery Panchanama (Exh.17).
7. The evidence of the informant Vikas (PW1), in short, is
that on 09032018 as usual he had been to his work place i.e. at
SEEPZ, M.I.D.C., Mumbai. He had parked his Activa No. MH47AC
3556 in front of the Domino's Pizza. His further evidence shows that
when he came back, he saw that his Activa was missing. He, therefore,
lodged FIR (Exh.11). The testimony of informant Vikas (PW1) coupled
with the FIR (Exh. 11) goes to prove that the Activa No.MH47AC
3556 was stolen.
8. API Ahire (PW4) has merely sought the custody of the
accused in the present crime and on completion of the investigation he
submitted chargesheet. His evidence is more or less of a formal
character.
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9. Raju Gautam (PW2) happens to be a panch witness to
panchnama (Exh.14). He deposed that on pointing out the spot by the
accused No.4 spot panchnama (Exh.14) was drawn up in front of
Domino's Pizza Shop. Prosecution has duly proved the panchnama of
the place of theft.
10. Now, the crucial question is “Whether the accused are the
authors of the Crime? Indisputably, the evidence of the informant Vikas
(PW1) is of no use to the prosecution to connect the accused persons
with the crime as he has not seen the persons who had committed theft
of Activa No. MH47AC3556.
11. This leaves me with the circumstantial evidence relied
upon by the prosecution in the form of recovery of stolen Activa in
pursuance of memorandum statement made by accused No. 1 and
recovery panchanama under which the stolen Activa is recovered.
12. In order to prove the recovery of stolen Activa at the
instance of accused No. 1, the prosecution has examined API Irfan
Shaikh (PW5) who recorded the memorandum and recovered the
Activa and Mohammad Shaikh (PW3). API Irfan Shaikh (PW3) deposed
that he arrested the accused persons in Crime No. 19/18 under section
465, 466, 467 and 471 of IPC and while the accused No. 1 was in
police custody, he made a memorandum statement showing willingness
to point out the stolen property and on pointing out by him, he
recovered the same under seizure panchanama (Exh.17). Panch
witness namely Mohammad Shaikh (PW3) has also supported to the
prosecution case by deposing that while the accused No. 1 was in police
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7 C.C. No. 1139/PW/2018
custody, he made memorandum statement and shown his willingness to
point out the stolen Activa and in pursuance of the statement, accused
No. 1 pointed out the stolen Activa and accordingly, it was recovered
in his presence under seizure panchanama (Exh. 17).
13. Through the evidence of API Irfan Shaikh (PW5) and
panch Mohammad Shaikh (PW4), the fact that the stolen Activa was
kept at Ram Auto Parts is proved. So also, the fact that the seizure of
stolen Activa from the Ram Auto Parts in consequence of the
information given by the accused No. 1 is also proved. The oral
evidence of API Irfan Shaikh (PW5) and panch Mohammad Shaikh
(PW4) coupled with the memorandum statement (Exh. 16) and
seizure panchanama (Exh. 17) go to prove that the stolen A c t i v a was
recovered at the instance of accused No. 1. The fact that the accused
No. 1 parked the stolen Activa at Ram Auto Parts is duly proved. The
accused No. 1 has not offered any satisfactory explanation with respect
to the Activa parked in front of Ram Auto Parts. In such circumstances,
presumption under section 114 (a) of the Evidence Act is required to be
drawn that the accused No. 1 is either the thief or has received the
Activa knowing it to be stolen.
14. In so far as accused Nos. 2 to 4 are concerned, a question
arises whether the confession of accused No.1 can be used against
them ? Sec. 30 of the Evidence Act lays down that where more persons
than one are jointly tried for the same offence, the confession made by
one of them, if admissible should be taken into consideration against
all the accused and not against the person alone who made it. On going
through the memorandum statement of accused No. 1, I find that there
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8 C.C. No. 1139/PW/2018
is no reference of accused Nos. 2 to 4 by name in it. For this simple
reason, it can not be taken into consideration against the accused Nos.
2 to 4.
15. Considering the evidence led by the prosecution and the
reasons discussed herein above, I hold that the prosecution succeeded
in establishing the charge against the accused No. 1, whereas it has
failed to establish against the accused Nos. 2 to 4. I, therefore, answer
point No.1 partly in the affirmative.
Point No.2 :
16. In view of partly affirmative findings to point No. 1, the
accused No. 1 is liable to be convicted and rest of the accused are liable
to be acquitted.
17. In so far as benefit of Probation of Offenders Act is
concerned, considering the modus operandi of the accused that he
changed the number plates, Chasis number and Engine number of the
stolen vehicle, I am of the opinion that this is not the fit case wherein
powers under section 3 and 4 of the benefit of Probation of Offenders
Act can be extended.
18. Heard accused No.1 on the point of sentence. He
submitted that he is only earning member of the family and so lenient
view may be taken.
19. As against this, Ld. APP for the State submitted that
considering the nature of offence maximum sentence be imposed.
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20. Having heard the accused on the point of sentence and
considering the nature of the offence, I am of the opinion that following
sentence would squarely meet the ends of justice.
21. In the result, following order:
O R D E R
(i) The accused No. 1 Arif Chand Khan is convicted for the
offence punishable under section 379 of the Indian Penal
Code and sentenced to suffer simple imprisonment for 1 year
and 6 months under section 248(2) of the Code of Criminal
Procedure.
(ii) The period of detention undergone by the accused No.1 in
jail be set off against the sentence of imprisonment under
section 428 of Code of Criminal Procedure.
(iii) The accused Nos. 2 to 4 are acquitted of the offence
punishable under section 379 read with section 34 of IPC,
under section 248 (1) of the Code of Criminal Procedure.
(iv) The accused Nos. 2 & 4 are in jail. They be released
forthwith if not required in any other crime.
(v) The seized stolen Activa No. MH47AC3556 is already
returned to the informant on execution of indemnity bond.
The bond executed by him stands cancelled and he is
allowed to retain the property with him.
(vi) Copy of judgment be supplied to the accused No. 1 free of
cost.
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10 C.C. No. 1139/PW/2018
(vii) These sentences shall run concurrently with all other
sentences imposed in C.C.No. 281/PW/2018 decided by
Metropolitan Magistrate, 27th Court, Mulund, Mumbai.
Date : 16102019
(S. N. Salve)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
*csj
Dictated on : 16102019
Typed on : 16102019
Signed on : 16102019
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