Gr 09/2009

IN THE COURT OF CHIEF JUDICIAL MAGISTRATE, DHEMAJI.
The State of Assam ………………………………………….The Complainant.
Sri. Tapan Gogoi .…………….………… ……………………The accused/person.
Date of recording evidence : 30.09.2010, 16.06.2011, 29.08.2011 & 17.11.2011. Date of hearing Arguments : 09.12.2011.
Mr. P. Gohain, Addl.P.P. ……………………….…….Appeared for the State.
Mr. M. Dihingia, Advocate,……….… …………….….Appeared for the defence.
J U D G M E N T.
The prosecution case in brief is that on 3rd January, 2009 on behalf of BGS – SGS- SOMA JV, the informant Sri. Awadhash Pratap Singh (P.W.1) Manager – P&A, Soma, Gerukamukh, under Gogamukh police station within the District Dhemaji had lodged a written ejahar (Ext.1) with Gogamukh police station stating that it was reported to the informant by the Security Assistant that on that day at about 12-30 p.m. some thieves went to Dumping Yard area and they picked up Iron Scrap weighing approximate 300 Kgs. And their security personnel had caught red handed the accused Sri. Tapan Gogoi. It is also stated that four numbers of bicycle and Iron Scrap weighing 300 Kgs. were recovered from the possession of the accused person. The accused and the stolen articles were handed over to the police station. Accordingly the police registered Gogamukh P/S. Case No.04/09, U/S.379 of IPC against the accused person and took up investigation. After completion of usual investigation and on being found a prima facie case against the accused the police submitted charge sheet U/S.379 of IPC against the accused person to stand for trial. Hence 2. After receiving the charge sheet the cognizance was taken against the accused person U/S. 379 of IPC and the process was issued to the accused person to stand for trial U/S. 379 of IPC. Accordingly the accused person has appeared before the court to The copies were duly furnished to the accused and after considering the materials on records and hearing both sides the formal charge U/S.379 of IPC was framed against the accused person and the charge was read over and explained to the accused person to which the accused person pleads not guilty and claimed to be tried. 4. At the trial the prosecution has examined as many as 4 (four) witnesses including the informant and the investigating officer of the case in support of the prosecution case. The prosecution has also produced and exhibited 4 (four) number of documents in support of its case. After completion of recording of evidence of the witnesses produced by the prosecution, the accused person has been examined as per provisions of section 313 of Cr. P. C. and his statements have been recorded. The accused person has denied his involvement in the commission of the offence alleged in the case and has pleaded his innocence. The accused person has declined to adduce defence evidence in support of his defence.
5. The witnesses examined by the prosecution are: P.W.1 – Sri. Awadash Pratap Singh (Informant), P.W.4 – S.I. Sri. Hema Chelleng (Investigating Officer).
6. The documents produced and exhibited by the prosecution are: Ext.3 – The sketch map of Place of occurrence and 7. NOW THE POINT FOR DETERMINATION IS:
(a) Whether on 03.01.2009 at about 12-30 p.m. at Dumping Yard area at Subansiri Lower H E Project the accused with dishonest intention took Iron Scrap weighing approx. 300 Kgs out of the possession of concerned authority of the Subansiri Lower H E Project without their consent and moved the said Scrap and in order to such taking and thereby committed and offence punishable U/S.379 of IPC; 8. I have carefully gone through the case records and perused the entire evidence on records both oral and documentary. I have heard the arguments advanced and the submissions made by the learned Addl. P. P. on behalf of the State and the learned advocate 9. DISCUSSION, DECISION AND REASONS THEREOF:
The evidence of the P.W.1, Sri. Awadash Pratap Singh the informant of the case is that he does not know the accused who is present in the dock. He has further stated that in the year 2009 one night the alleged occurrence had taken place at about 12-30 a.m. and at the relevant time he was in the office of Soma Company. The P.W.1 has stated that he was informed by the Security Guard Sri. Monoj Kumar Ranjan that the scraps weighing 300 kgs were stolen away from Dumping Yard area and one person was caught and the said person was brought to the office. And thereafter the P.W.1 had filed the ejahar which is the Ext.1 and the Ext.1(1) is his signature. The defence declined to cross-examine the P.W.1.
10. The evidence of the P.W.2, Sri. Monoj Kr. Ranjan is that the informant is the Manager of Soma Company and the P.W.2 knows the accused person. He has further stated that on the night of 03.01.2009 at about 3-00 a.m. the alleged occurrence had taken place at the New Garage of Soma Company and at the relevant time he was at his quarter. The P.W.2 has stated that the Security Guard Sri. Dulal Bora and Sri. Babul Bordoloi were on duty at the time of the occurrence and they had informed the P.W.2 that some one had stolen away scraps from the New Garage. The P.W.2 has also stated that they went in search of the stolen scraps and on being heard some sound inside the jungle the P.W.2 along with security personnel had gone there and they had found the accused with other three persons with the scraps inside the jungle. He has also stated that on being seen them the other three persons had fled away and the accused was caught and the accused was brought to their office. And thereafter the Manager of Soma Company was informed about the matter and the Manager had filed the case. The accused was arrested by the police and the police had taken the accused to police station. During his cross-examination the P.W.2 has stated that the accused was caught on the day of the alleged occurrence at about 12 Noon. He has also stated that there is free access of all persons at the place of occurrence and 300 Kgs of scraps were found at the place where the accused was caught. The P.W.2 has denied the other suggestions put to him by the defence during his cross-examination.
11. The evidence of the P.W.3, Sri. Punaram Boiragi is that he knows the informant and the accused person. He has further stated that on being heard that some one committed theft at the Dumping Yard area on 03.01.2009 at about 12-30 p.m. they had gone for patrolling duty. The P.W.3 has stated that they had found scraps weighing 300 kgs and four bicycle in the jungle of Dumping Yard area and the accused was found near the stolen scraps and he was caught and they had informed the matter to the Manager. And the accused was handed over to police. He has stated that the police had seized the scraps vide Ext.2 and the Ext.2(1) is his signature. During his cross-examination the P.W.3 has stated that there is a nearby road where the stolen articles were found and the P.W.3 was accompanied by Sri. Monoj Kumar and other 4 to 5 Guard at the time when the accused was caught. The P.W.3 has denied the other suggestions put to him by the defence during his cross-examination.
12. The evidence of the P.W.4, S.I. Sri. Hema Chelleng the investigating officer of the case is that on 03.01.2009 he was working at Gogamukh police station and on that day the officer-in-charge of the police station had received one written ejahar from the informant Sri. Awadash Pratap Singh and registered a case which was endorsed to him for its investigation. Accordingly he had paid visit to the place of occurrence, recorded the statements of the witnesses and he had drawn sketch map of the place of occurrence. He has also stated that during investigation scraps weighing 300 Kgs were recovered and seized vide Ext.2 and the Ext.2(2) is his signature. The P.W.4 has stated that during investigation the accused was arrested and forwarded to the court and after completion of the investigation he has submitted the charge sheet against the accused. The Ext.3 is the sketch map of the place of occurrence and the Ext.3(1) is his signature and the Ext.4 is the charge sheet and the Ext.4(1) is his signature. During his cross-examination the P.W.4 has stated that all the witnesses of the Ext.2 are the employees of Soma Company and there is a public road nearby the place of occurrence. He has also stated that the accused was apprehended by the security personnel of the Soma Company.
13. The learned Addl.P.P. appearing for the state has argued and submitted that the evidence of the prosecution witnesses have supported the prosecution case and the testimony of the prosecution witnesses is corroborative to each other. The learned Addl. P. P. has further submitted that the defence fails to shake the trustworthiness of the evidence of the prosecution witnesses during their cross-examination and the testimony of the prosecution witnesses can be relied on in support of the prosecution case. The learned Addl. P. P. has also submitted that the prosecution has successfully proved the case against the accused person as alleged beyond all reasonable doubt and the accused person is liable to be convicted as per law.
14. The learned advocate for the defence has submitted that the prosecution case is based on some false and fabricated allegations and the prosecution case is full of contradictions, omissions and exaggerations. The learned advocate for the defence has argued that the story narrated in the ejahar is quite different from the story narrated by the prosecution witnesses during their examination before the court. The learned advocate for the defence has argued that the prosecution witnesses have stated the alleged fact in different ways at the time of their examination before the court to that of their statements made under section 161 Cr. P. C. during investigation of the case. It is also argued by the learned advocate for the defence that as regards the time and place of the alleged occurrence the prosecution witnesses have contradicted to each other during their examination before the court and there is no eyewitness of the alleged occurrence and the P.W.1, 2 and 3 are the employees of the Soma Company and there is also no independent witness in this case. As such the evidence of the P.W.1, 2 and 3 can not be accepted in support of the prosecution case. The learned advocate for the defence has also submitted that the testimony of the prosecution witnesses are not corroborative to each other, there are so may material contradictions in the evidence of the prosecution witnesses and the evidence of the prosecution witnesses are not trustworthy and reliable in support of the prosecution case. The learned advocate for the defence has also submitted that the prosecution fails to prove the case against the accused person as alleged beyond all reasonable doubt and hence the accused person is entitled to get acquittal from 15. I have given my sincere consideration on the entire evidence on records both oral and documentary and other materials as well. Also heard suave submissions made by the learned counsels of both the parties. Now let us see how far the prosecution has been able to bring home the charges against the accused person on the basis of materials available before us on records. On perusal the ejahar i.e. the Ext.1 it is seen that the informant P.W.1 has stated in the ejahar that the alleged occurrence had taken place on 03.01.2009 at about 12-30 p.m. at Dumping Yard area. But in his evidence the informant as P.W.1 has stated that in the year 2009 one night at about 12-30 a.m. the alleged occurrence had taken place at the Dumping Yard area. Again on perusal the evidence of the P.W.2 who is the vital witness of the case it is seen that the alleged occurrence had taken place on the preceding night of 03.01.2009 at about 3-00 a.m. at New Garage of Soma Company. From the evidence of the P.W.3 it is seen that the alleged occurrence had taken place on 03.01.2009 at about 12-30 p.m. Thus on perusal the evidence of the P.W.1, 2 and 3 it is seen that there are so many material contradictions as regards the date, time and place of the alleged occurrence which creates some shadow of doubt in my mind as regards the alleged occurrence. Apart from that the Ext.1 i.e. the ejahar and the evidence of the P.W.3 shows that four number of bicycles were also found along with the alleged stolen articles. But neither the investigating officer of the case nor any other witnesses has uttered a single words about those bicycles. It also creates some doubt as to who are the owner of those bicycles and what happened to those bicycles. Thus it is seen that the investigation of the case was not properly held. 16. After perusal the evidence of the prosecution witnesses it is seen that the prosecution witnesses have not supported the prosecution case as alleged and the evidence of the P.W.1, 2 and 3 are not reliable and acceptable in support of the prosecution case. Hence I have no alternative but to hold the opinion that the prosecution has miserably failed to prove the charge against the accused person as alleged beyond all reasonable doubt by adducing reliable and acceptable evidence or circumstances. I find there is no evidence to show that the accused had committed theft of scraps from the possession of the Soma Company and the accused person is involved with the alleged offence U/S.379 of IPC. Hence in my considered view I hold the opinion that the accused person is not guilty U/S.379 of IPC. Accordingly I acquit the accused person of the charge U/S.379 of IPC levelled against him. Set him at liberty forth with. The bail bond stands cancelled. The seized scraps if any shall be returned to its owner in due course of time after proper identification. Inform I/O. 17. Given under my hand and seal of this court on this 23rd Day of December, 2011 at The prosecution fails to prove the case against the accused person as alleged beyond all reasonable doubt by adducing reliable and acceptable evidence. I find there is no evidence to show the involvement of the accused person with the alleged offence U/S.379 of IPC. And in my considered view I hold the opinion that the accused person is not guilty U/S. 379 of IPC. Accordingly I acquit the accused person of the charge U/S. 379 of IPC levelled against him. Set him at liberty forth with. The bail bond stands cancelled. The seized scraps if any shall be returned to its owner in due course of time after proper identification. Inform I/O. accordingly. The details Judgment is written on separate sheets and kept with case Chief Judicial Magistrate, Chief Judicial Magistrate,

Source: http://dhemajijudiciary.gov.in/data/cjm5.pdf