Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C. NO. 1736/PW/2018 JUDG
Filed on : 28/06/2018
Registered on : 28/06/2018
Decided on : 04/07/2019
Duration : 01 Y 00M 06 D
Exh. :
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
66TH COURT, ANDHERI, MUMBAI.
(Presided by R. M. Nerlikar)
(JUDGMENT U/SEC. 355 OF CRIMINAL PROCEDURE CODE)
(a) The serial No. of the case ; : 1736/PW/2018.
(b) The date of commission of
the offence ;
: 24/09/2017.
(c ) The name of the
informant(if any) ;
: The State (Powai Police
Station in C. R. No.-
459/2017).
(d) The name of the accused
persons and their
parentage and residence;
: 1.
2.
Milind @ Khekda Manohar
Sawant
Age : 23 years,
Occ.: Driver
R/o. SRA Building, Room
No.114, New Link Road,
Charkop, Kandivali (W),
Mumbai – 400 067.
Aasif Chand Khan
Age : 33 years,
Occ.: Driver
R/o. Room No.01, Noori
Chawal, Gate No.03, Near
Mangalmurti Hospital,
Malwani, Malad (W),
Mumbai.
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2 C.C. NO. 1736/PW/2018 JUDG
3.
4.
Aarif Chand Khan
Age :- 24 Years,
Occ. :- Mechanic
R/o. :-Room No.01, Noori
Chawal, Gate No.03, Near
Mangalmurti Hospital,
Malwani, Malad (W),
Mumbai.
Sahil Abdul Ganja
Age :- 31 Years,
Occ. :- Mechanic
R/o. :- Kasim Patel Chawal
Chawl No. 7, V.K. Wadi,
Dharavi Main Road,
Dharavi,
Mumbai – 400 017.
(e) The offence complained of
or proved ;
: U/Sec. 379, 420, 465, 467,
468, 471, 201, 34 of Indian
Penal Code.
(f) The plea of the accused
No.-3 and his examination
(if any) ;
: Accused pleaded not guilty.
(g) The final order ; : Accused No. 1 to 4 are
acquitted.
(h) The date of such order ; : 04/07/2019.
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CHARGE : OFFENCE P. U. S. 379, 420, 465, 467, 468, 471,
201, 34 of Indian Penal Code.
Ld. APP for the State : Mr. G.G. Khade
Ld. Advocate for accused
no. 1 and 4 : Mr. P.S. Palekar
Ld. Advocate for accused
no. 2 and 3 : Mr. V.G. Surve
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3 C.C. NO. 1736/PW/2018 JUDG
J U D G M E N T
(Delivered on 04/07/2019)
The accused have faced the trial for the offence
punishable under sections 379, 465, 467, 468, 471, 420, 201
r/w section 34 of Indian Penal Code.
2. In short it is the case of the prosecution that, all the
accused in furtherance of their common intention committed
theft of the pulsar motorcycle bearing no. MH-03-CJ-6746 so
also destroyed the chassis number and engine number
prepared new motorcycle and thereby committed abovesaid
offences. Upon report the crime was registered for the
aforesaid offences. After completion of investigation police
submitted chargesheet against the accused.
3. The charge against the present accused was framed
below Exh.-2. The contents of the charge were read over and
explained to the accused in vernacular. The accused pleaded
not guilty and claimed for trial. Their defence is that of total
denial and false implication.
4. Heard Ld. APP Shri G.G. Khade for the State and
Ld. Counsel Mr. P.S. Palekar for accused no. 1 and 4 and Mr.
V.G. Surve for accused no. 2 and 3 at length.
5. The points for determination along with my
findings thereon are, as under...
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SR. NO. POINTS FINDINGS
1 Does prosecution prove that, on
24/09/2017 at about 20.45 hrs. to
21.30 hrs. At Panchkutir, in front of
Pawar Wadi, Aadi Shankaracharya
Marg, Powai, Mumbai; all accused in
furtherance of their common intention
took dishonestly a certain movable
property i. e. Pulsar Motorcycle
bearing No. MH-03-CJ-6746 out of the
possession of its owner without his
consent, moved it in order to such
taking and thereby committed an
offence publishable u/sec. 379 r/w
section 34 of IPC?
No.
2 Does prosecution prove that on the
abovesaid date, time and place all
accused in furtherance of their common
intention, dishonestly forged chassis
number and engine number of above
vehicle and thereby committed an
offence punishable U/sec. 465 r/w
section 34 of IPC?
No
3 Does prosecution prove that on the above
said date, time and place all accused in
furtherance of their common intention,
dishonestly forged chassis number and
No
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engine number of the above vehicle,
which purported to be valuable security
and thereby committed an offence
punishable u/sec. 467 r/w section 34 of
IPC?
4 Does prosecution prove that on the
abovesaid date, time and place all
accused in furtherance of their common
intention forged chassis number and
engine number of the abovesaid vehicle
intending that it shall be used for the
purpose of cheating and thereby
committed an offence punishable u/sec.
468 r/w section 34 of Indian Penal Code?
No.
5 Does prosecution prove that on the above
said date time and place all accused in
furtherance of their common intention
dishonestly forged chassis number and
engine number of the abovesaid vehicle,
which purported to be valuable security,
intending that it shall be used for the
purpose of cheating, which you know at
the time when used it to be a forged
document and thereby committed an
offence punishable U/sec. 471 r/w
section 34 of IPC?
No.
6 Does prosecution prove that on the
above said date time and place you in
No.
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furtherance of your common intention
cheated the complainant, dishonestly
by changing chassis number and
engine number of above vehicle and
thereby committed an offence
punishable u/sec. 420 r/w section 34
of IPC?
7 Does prosecution prove that on the
abovesaid date, time and place, you
knowing that, the offence, to rough
the chassis number and engine
number of stolen property punishable
with 379 of I.P.C. has been committed,
caused certain evidence connected
with the said offence of theft to
disappear with intention to screen the
offender from legal punishment, and
thereby committed an offence
punishable under section 201 r/w 34
of the Indian Penal Code?
No.
8 What order ? As per final
order.
R E A S O N S
AS TO POINT NO.-1 TO 7 : -
6. In order to prove the case, prosecution examined
informant Mahesh Pashupati Wanjade as (P.W.-1), at (Exh.-9),
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panch Sanjay Rambachan Yadav as (P.W.2) at (Exh.12), Mohd.
Hanif Moinuddin Shaikh as (P.W.3) at (Exh.17), panch Yatin
Jaywant Patil as (P.W.-4) at (Exh.-20), panch Anil Hari
Dhangar as (P.W.5) at (Exh.-22) and Police Sub-Inspector
Yogesh Suryabhan Kale as (P.W.-6) at (Exh.-23).
7. If minutely read the evidence of informant Mahesh
(P.W.1), it disclosed with regard to the theft of motorcycle and
lodging report Exh.10.
8. Evidence of Sanjay (P.W.2) disclosed obtaining
signature by PSI Kale, carried him at Powai Plaza, informed
about theft of the motorcycle, he signed panchanama Exh.13.
9. In his cross-examination he admitted the fact of
making signature on the panchanama only. He denied the fact
of making the signature on spot panchanama.
10. Evidence of Mohd. Hanif (P.W.3) disclosed presence
of the accused alongwith police officer. He narrated chassis
number and number plate of the motorcycle. Thereafter he
was carried at Hindustan Naka. He stated three vehicles was
in the shop situated in the Hindustan Naka. Police obtained
his signature. He identified accused Aarif.
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11. In his cross-examination he denied accused has not
stated anything in his presence. He denied the fact of making
the signature on the panchanama in police station.
12. Evidence of Yatin (P.W.4) disclosed that he was
called by the crime branch, officer Irfan Shaikh was present
there 2-3 persons and accused Sawant were also present. He
showed the accused and informed him the case was registered
against him. In his presence the accused told him that he
committed theft of scooter and bike and kept in Bisleri
company at Kandivali wherein the police officer drawn
panchanama as vehicles were found. He made his signature
on it. He identified his signature on the copy of the
panchanama. He unable to tell the name of the persons who
were present alongwith him. He testified police told him that
the accused committed theft of vehicles. He expressed his
ignorance in respect of the name of person who typed the
panchanama. He testified that the police obtained print out on
the spot of incident. He unable to tell the model number of
the vehicle. He denied that no panchanama was drawn.
13. Evidence of Anil (P.W.5) disclosed that he was
called by one Office Shri Naik at Unit-IX Bandra Mumbai.
There were Police Officer Shaikh, Walanje and staff present.
One person Sahil Ganja was also present. In his presence 27
vehicles were seized and panchanama was drawn and he
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made his signature on it. He identified the xerox copy of the
panchanama.
14. In his cross-examination he stated that he unable to
tell who typed the panchanama. He testified that he made
only one signature. He denied the fact of non-drawing of
panchanama.
15. Evidence of Yogesh (P.W.6) disclosed that he
investigate the crime, seized vehicle and obtaining the custody
of the accused. He further stated that accused Milind Sawant
made confession statement. Accordingly panchanama of spot
of incident was drawn which is at Exh.14. Thereafter he
obtained custody of the vehicle by drawing panchanama
Exh.13, recorded supplementary statement of the informant,
arrested accused.
16. In his cross-examination he denied the fact of
confessional statement made by the accused. He admitted that
he has not seized the vehicle for which the crime was
registered.
17. If minutely read the evidence of above discussed
witnesses and perusal of report, it appears that the evidence of
both witnesses though they have testified in respect of
drawing of seizure panchanama and memorandum
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panchanama in lieu of confession statement of accused. The
original seizure panchanama is not on record. Its copy is on
record.
18. Furthermore the evidence of Sanjay (P.W.2) and
Mohd. Hanif (P.W.3) do not inspire confidence so as to believe
this fact in their presence accused give confessional statement
and in lieu of that vehicles were seized, because in absence of
original memorandum and seizure panchanama.
Furthermore, the evidence of Investigating Officer has
admitted the fact of non-seizure of the vehicles for which the
report is lodged. The sum and substance of above discussion
goes to show that the vehicle was not seized for which the
crime was registered, the memorandum panchanama and
seizure panchanama not proved by the prosecution. The
prosecution miserably failed to establish the chain and link of
present accused in respect of alleged offence. In the absence
of it, it cannot be said that it is the accused only who
committed offence as alleged, therefore I answer point no. 1
to 7 in negative.
AS TO POINT NO.-8 : -
19. The prosecution failed to prove the guilt of
accused for which they are charged, therefore accused are
entitled for acquittal. Accordingly, I answer point No.-8 and
pass the following order.
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ORDER
1 Accused no.1 Milind @ Khekda Manohar
Sawant, 2. Aasif Chand Khan, 3. Aarif Chand
Khan and 4. Sahil Abdul Ganja are hereby
acquitted of the offence punishable U/Sec. 379,
420, 465, 467, 468, 471 and 201 of Indian
Penal Code, vide Sec. 248 (i) of Criminal
Procedure Code.
2 Accused shall furnish P. R. Bond of Rs.10,000/-
(Rupees Ten Thousand Only) each, as per
section 437 (A) of Criminal Procedure Code.
3 The seized property be returned to the concern
police station.
4 Dictated and pronounced in open Court.
Date 04/07/2019.
Sd/-
(R. M. Nerlikar)
Metropolitan Magistrate,
66thCourt, Andheri, Mumbai.
Dictated on :- 04/07/2019.
Transcribed on :- 04/07/2019.
Signed on :- 04/07/2019.
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