Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO.1556/PW/2018
Filed on .. 12/06/2018
Registered on .. 12/06/2018
Delivered on .. 20/02/2023
Duration .. 04Y 08M 08D
CNR No. MHMM190061742018
Exh.11
BEFORE 65th METROPOLITAN MAGISTRATE,
ANDHERI, MUMBAI.
(Presided over by C.P. Kashid)
(Judgment as per Sec. 355 of the Cr.P.C.)
(a) The serial number of the
case;
: C.C. No. 1556/PW/2018
(b) The date of commission of
offence;
On 26.03.2018 at about 10.00
p.m. till 27.03.2018 at about
09.30 a.m.
(c) The name of the
informant, if any;
: Through PSO Andheri Police
Station (CR No.166/2018)
(d) The name of the accused
person, his parentage and
residence;
: Mohammad Farukh Gulab
Patel
Age : 24 years
Occupation : Nil
R/o.: Room No.7,
Ganesh Pada, Andheri East,
Mumbai.
(e) The offence complained of
or proved;
: U/Sec.454, 457, 380 r/w Sec.34
of the Indian Penal Code
(f) The plea of the accused
and his examination, (if
any);
: Accused pleaded not guilty
(g) The final order; : As Per Final Order
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h) The date of such order; : 20/02/2023
Appearance : APP. Samrat Patil for the State
Adv. R.T. Shaikh for accused
JUDGMENT
(Delivered on 20/02/2023)
1. Accused has been chargesheet ed for the offences
punishable U/Sec.454, 457, 380 r/w Sec.34 of the Indian Penal
Code (for short “IPC”).
The prosecution case in short is as follows :
On 27.03.2018 at about 09.30 a.m., when informant
opened his shop namely S. B. Communication, Shop No.3,
Aaradhana Cooperative Housing society, Andheri East, Mumbai,
he found that someone had broken the lock of his shop. He also
found that someone had committed lurking house trespass in said
shop and committed theft of cash, laptop and mobile total worth of
Rs.1,35,490/ belonging to the informant. Therefore, the
informant went to Andheri police station and lodged FIR against
unknown person. As per FIR, crime No. 166/2018 registered
against the unknown person. Thereafter, Investigating Officer
started investigation. During investigation, he recorded statement
of witnesses. He arrested the accused, he prepared spot
panchanama, memorandum panchanama and seized one mobile of
Rs.18,900/ from accused and prepared its seizure panchanama
and after completion of investigation submitted chargesheet
against the accused.
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2. I have framed charge against the accused vide Exh.2 and
it read over and explained to accused in vernacular, to which he
pleaded not guilty and claimed to be tried. The statement of the
accused is recorded U/Sec.313 of CrPC. His defence is of total
denial and false implication.
3. Following points arise for my determination and I have
recorded findings thereon for the reasons discussed herein after :
S.NO. POINTS FINDINGS
1 Whether prosecution prove that on
26.03.2018 at about 10.00 p.m. till
27.03.2018 at about 09.30 a.m. at S. B.
Communication, Shop No.3, Aaradhana
Cooperative Housing society, Andheri
East, Mumbai, accused committed lurking
house trespass by entering into the above
said place of the informant in order to
commit offence of theft ? No
2 Whether prosecution prove that on above
said date, time and place, accused
committed house breaking after sunset
and before sunrise by entering into above
said place in order to commit offence of
theft ? No
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4 C. C. NO.1556/PW/2018
3 Whether prosecution prove that on above
said date, time and place, accused
committed theft from the above said place
of informant without his consent ? No
4 What order ? As per final
order
R E A S O N S
As to points No. 1 to 3 :
4. In order to establish guilt of the accused, prosecution has
examined total two witnesses i.e. the informant namely Kailash
Sharma as PW1 at Exh.4 and Investigating Officer API Yashwant
Patil as PW2 at Exh.6.
5. It has come in the evidence of PW1 that when he opened
his mobile shop, he found lock of shutter was broken and mobiles
and laptop and cash was stolen by someone. Therefore, he went
to police station and lodged FIR (Exh.5) against unknown person.
During cross examination, he admitted that he did not see any
person while committing theft and he did not see the accused in
the police station. He further stated that he do not want to
proceed further against the accused. Thus it shows that PW1 has
not stated anything incriminating against the accused. Therefore
his evidence is not helpful to the prosecution.
6. The evidence of PW2 shows that during the investigation,
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he arrested the accused and recorded memorandum statement of
the accused and prepared its memorandum panchanama (Exh.7).
Thereafter he, accused, panch witness and police staff went to the
house of the accused and he took out stolen mobile from his
cupboard. PW2 seized that stolen mobile and prepared its seizure
panchanama (Exh.8) and after completion of investigation, he
submitted chargesheet. During cross examination, he admitted
that he recovered only one mobile from the possession of the
accused.
7. The evidence of PW2 shows that seized mobile was not
shown to him during examination. It is the case of the prosecution
that five mobiles, two laptops and cash of Rs.24,000/ of the
informant was stolen. But it shows that only one mobile was
recovered from the custody of the accused and the identification or
description of mobile was not given in panchanama. Therefore, it
is not proved that seized mobile belongs to the informant.
Moreover, the prosecution has not examined any panch witness to
prove seizure panchanama. The prosecution has not examined
any eye witness of the incident. It shows that the evidence of PW1
is not supported to the prosecution. Therefore, considering above
discussion, I come to the conclusion that there is no sufficient and
cogent evidence on record to prove that accused has committed
theft as alleged by the prosecution.
8. Thus, considering above discussion, I come to the
conclusion that the prosecution has failed to prove the case against
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the accused beyond reasonable doubt. Therefore, I answered
points No.1 to 3 in the negative. Therefore, accused is entitled to
be acquitted from the charges levelled against him. Hence for
answering point No.4, I pass following order :
ORDER
1) Accused is acquitted of the offences punishable U/Sec.454,
457, 380 r/w Sec.34 of IPC vide Section 248(1) of the Cr.P.C.
2) His bail bonds (if any) are cancelled.
3) The accused is directed to furnish P.B. & S.B. of Rs. 15,000/ or
cash bail of the same for appearance before the Hon'ble Appellate
Court towards the compliance of Section 437(A) of the Cr.P.C.
4) Seized muddemal be returned to its real owner if not returned
after appeal period is over.
5) Dictated & declared in the open Court.
Date : 20.02.2023 (C.P. Kashid)
Metropolitan Magistrate
ask 65th Court, Andheri, Mumbai.
Dictated &
typed on : 20.02.2023
Signed on : 20.02.2023
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