IN THE COURT OF JUDICIAL MAGISTRATE, FIRST CLASS,GOLAGHAT

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1 IN THE COURT OF JUDICIAL MAGISTRATE, FIRST CLASS,GOLAGHAT GR CASE NO: 1315/ 2012 U/S 380/457 IPC STATE -VERSUS- SRI NIGRU NAHAK...ACCUSED PERSON PRESENT : Smti Sorbani Bhattacharjee, AJS Judicial magistrate, First Class Golaghat ADVOCATES APPEARED- FOR THE PROSECUTION : Sri Plaban Bhuyan,Learned Asst.PP. FOR THE ACCUSED : Sri Juganta Bijoy Dutta, Learned Defence Counsel. CHARGE FRAMED ON : 02/01/2013 EVIDENCE RECORDED ON: 16/01/2013, 12/02/2013, 15/03/2014, 09/09/2014 ARGUMENT HEARD ON: 16/10/2014 JUDGMENT DELIVERED ON: 30/10/2014. JUDGMENT 1. The case of the prosecution in brief is that on one Sri Rabi Chandra Dey lodged an ejahar before the O/C Ghiladhari Police Station

2 -2- stating inter alia that on on Sunday at night someone entered into his shop by breaking the wall and stole cash amount of Rs. 7000/- and other articles. In the FIR informant further alleged that from some reliable sources he came to know that the accused person was caught by the local VDP. He also mentioned in the FIR that the accused person Sri Nigru Nahak confessed his guilt and Rs. 750/- recovered. 2) The police upon receipt of the FIR registered Ghiladhari PS case No. 52/12 U/S 457/380 of Indian Penal Code (IPC) and started investigation in the case. Upon completion of investigation police submitted charge sheet against the accused Sri Nigru Nahak U/S 457/380 IPC. 3) On production of the accused from judicial custody Copies of relevant documents furnished to him U/S 207 CrPC. Formal Charges U/S 457/380 IPC framed and the same are read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 4) Prosecution examined six (6) witnesses including the I.O. The defence case is of total denial as is revealed from the statement of the accused recorded under section 313 CrPC and defence has not adduced any evidence. Upon the case set up by the prosecution I have framed the following point for determination in this case in order to arrive at a definite finding as regards the matter in dispute- 5) POINT FOR DETERMINATION- A) Whether the accused person has committed theft on at night in the shop of the informant Sri Rabi Ch. Dey of cash amounting to Rs. 7000/- and other articles and thereby committed offence punishable under section 380 of IPC? B) Whether the accused person has committed lurking house trespass by night on by entering the shop of Sri Rabi Ch. Dey and thereby committed offence under section 457 IPC? 6) I have heard the learned A.P.P and the learned defence counsel on behalf of the aforesaid accused person. The learned APP has contended that the prosecution has proved its case beyond reasonable doubt. Whereas the learned counsel for the accused person have contended that the prosecution has failed to prove the case beyond all reasonable doubt and as such the accused person is liable to be acquitted.

3 -3- Discussion, Decision and Reasons for the Decision- 7) PW1 Sri Rabi Chandra Dey deposed that on the day of alleged occurrence he left Rs 7000/-cash in his shop at Oating Railway Station near Kali Mandir. On the next morning when he opened his shop he saw that bamboo wall on the back side of his shop was cut and the articles were lying here and there. There was no money in the cash box. He immediately called the nearby people. Two days later he saw two boys aged about 10 years spending a lot of money and eating something. P.W.1 further deposed that then he enquired the two boys and they told him that the accused person gave them a knife and asked them to cut the wall. The accused person lured them and through them accused committed the theft of money. Those boys told him that the accused person gave them Rs. 900/-and he kept the rest of the amount. He received back an amount of Rs. 750/- from the two boys of which 7 notes were of 100 denomination and 1 of Rs 50/-. He further deposed that the boys mentioned the name of the accused person and told him that he had earlier also committed theft in the market. P.W.1exhibited the FIR given by him as Exhibit-1 and exhibited his signature on it as Exhibit-1(1). Police seized Rs. 750/- from him and he signed as a witness. He exhibited the seizure list as Exhibit-2 and his signature on it as Ext-2 (1). P.W. 1 further deposed that he does not know the name of the aforesaid two boys. The father s name of one of them is Nigru Chawra and another is Chotu, title is not known to him. He also exhibited Material Exhibit-1 as the money seized from him which he saw in the court. 8) During his cross examination P.W. 1 stated that the distance from his house and his shop is about 150 metres. He sells Paan, Tamul,biscuit, petrol, diesel etc. His shop is a kaccha shop. He does not have license for selling petrol and diesel. There are about 10 shops near his shop. He does not leave money every day in his cash box. He did not receive the seized amount of Rs. 750/- from the accused person. He received the amount from the two boys and he did not state that before police. He came to know about the theft on the very next day. He immediately did not lodge the ezahar. The accused was handed over to the police by him and VDP secretary Babu Das and Tapan Dhar. He further stated that in exhibit-2 i.e., the seizure list the seized articles were not shown to be seized from accused Nigru Nahak.

4 -4-9) PW2 Sri Bablu Das deposed that he heard about the incident of theft. During his cross examination he stated that he heard about it from the two small boys and these two boys entered into the shop to commit theft. On the day after the incident he heard about it from the informant. 10) PW3 Smti Bina Bhumiz deposed that she heard about the incident. The informant tied her son Ananta Bhumiz alleging him of committing theft in his shop. While she was on her way to workplace, she on seeing her son in tied condition asked the informant. Then the informant told her that her son committed theft of money from his shop. Another boy titled Chawra was also tied there. She heard that an old man has also been tied but she did not see him. When she asked the boys then they told her that they had not committed theft and they were tied by the informant while playing. 11) P.W. 4 Sri Ananta Bhumiz deposed that the accused earlier committed theft of money in the house of one Arun Modi on the day of Kali Puja. While he was playing the informant by luring tied him and was beaten. There was a theft in the shop of the informant and he enquired p.w.4 about it. He said to the informant that he had not committed the theft. Along with him one Dipak Chawra was also caught. He expressed his ignorance about the person who had committed theft in the shop of the informant. During his cross examination also P.W. 4 expressed his ignorance about the person who committed theft in the house of the informant. He stated that after the theft in the shop of the informant he, Dipak and accused were caught. But regarding theft in the house of Rabi he does not know anything. 12) PW5 Sri Dipak Chawra deposed that there was a theft in the shop of the informant. While they were playing in the field informant came and took them away by showing Morton (chocolate) and tied them. During his cross examination P.W.5 expressed his ignorance about the theft. 13) P.W. 6 Sri Kinaram Kalita, the Investigating Officer of this case deposed in court that on he was working as 2 nd officer at Ghiladhari police station. and that day on receiving an FIR from Sri Rabi Ch. Dey at the police station he did the investigation. He recorded the statement of the witnesses. He seized Rs 750/- from Ananta Bhumiz and Dipak Chawra. On completion of investigation he submitted charge sheet against the accused U/S 457/380 of IPC which is exhibited as Exhibit 4 and his signature as Exhibit-4(1). P.W. 6 exhibited the seizure list as -5-

5 Exhibit 2 and his signature on it as Exhibit-2(2) and also the sketch map as Exhibit-3 and his signature as Exhibit-3(1). 14) During cross examination P.W.6 stated that in the FIR the names of Ananta Bhumiz and Dipak Chawra were not there. Later on during investigation he came to know that these two persons were involved in the incident. But he did no investigation against them. Though in the ezahar it is mentioned that the accused Nigru Nahak confessed his guilt but his confessional statement was not recorded. He further stated that in this case a total of Rs. 750/- seized from Ananta Bhumiz, Dipak Chawra and Smti Bina Bhumiz who is the mother of Ananta Bhumiz. No money was seized from the accused. No charge sheet was given against Ananta Bhumiz and Dipak Chawra. He further stated that the informant had not stated before him that Ananta Bhumiz and Dipak Chawra were involved in the theft. Local people and VDP personal handed over the accused to police. 15) On carefully examining the evidence on record it becomes clear that there is no eye witness to the alleged occurrence. PW.1 Sri Rabi Ch. Dey who is the informant stated that on the next morning of the theft when he opened his shop he saw that bamboo wall on the back side was cut and the articles were lying here and there. There was no money in the cash box.. Two days later he saw two boys aged about 10 years spending a lot of money and eating something. P.W.1 further deposed that then he enquired the two boys and they told him that the accused person gave them a knife and asked them to cut the wall. The accused person lured them and through them he committed the theft of money. Those boys told him that the accused person gave them Rs. 900/-and he kept the rest of the amount. He received back an amount of Rs. 750/- from the two boys of which 7 notes were of 100 denomination and 1 of Rs 50/-. He further deposed that the boys mentioned the name of the accused person. These two minor boys alleged by P.W. 1 to have been used by the accused to commit theft were examined by prosecution as P.W. 4 and 5. In their evidence P.W. 4 Ananta Bhumiz and P.W.5 Dipak Chawra expressed their ignorance about the incident of theft. P.W. 6 Sri Kinaram Kalita the I.O. of this case deposed that he seized Rs. 750/- from Ananta Bhumiz and Dipak Chawra. During his cross examination he stated that in the FIR the names of Ananta Bhumiz and Dipak Chawra were not there. Later on during investigation he came to know that these two persons were involved in the -6-

6 incident. But he did no investigation against them. No charge sheet was given against Ananta Bhumiz and Dipak Chawra. From the evidence of the I.O. himself it becomes clear that though Ananta Bhumiz and Dipak Chawra were found after investigation to be involved in the case and stolen money amounting to Rs. 750/- were seized from them but they were neither charge sheeted in this case nor sent up for trial as juvenile in conflict with law in this case. Further, P.W. 2 Bablu Das and P.W. 3 Bina Bhumiz only heard about the incident of theft in the shop of the informant and there is nothing in their evidences to help the prosecution side. Thus, neither anyone saw the accused committing theft in the shop of the informant at night nor any money was seized from his possession. Apart from that there is also no evidence on record as to show how the accused took any precautions to conceal his act of house trespass. To constitute the offence of lurking house trespass by night, the offender must take active means to conceal his presence. 16) Considering the discussions made above it is held that the prosecution has failed to prove the charges U/S 457/380 of IPC against the accused person beyond all reasonable doubt and the accused is entitled to acquittal. ORDER 17. The accused person Sri Nigru Nahak is acquitted of the charges under sections 380/457 of IPC and is set at liberty forthwith. The bail bond of the accused person and his surety shall remain in force for six months from today as per amended CrPC. No one claimed the seized money of Rs. 750/- during trial. The same is to be deposited in the state exchequer under refundable head of account as per law. Given under my hand and seal of this court on this 30th day of October, Smti Sorbani Bhattacharjee Judicial Magistrate, First Class, Golaghat.

7 -7- PROSECUTION EXHIBITS: 1) EXHIBIT 1: Ezahar 2) EXHIBIT 2: Seizure list 3) EXIHIBIT 3: Sketch Map 4) EXHIBIT 4: Charge sheet GR.1312/15 APPENDIX DEFENCE EXHIBITS NIL PROSECUTION WITNESSES 1) Sri Rabi Ch. Dey 2) Sri Bablu Das 3) Smti Bina Bhumiz 4) Sri Ananta Bhumiz 5) Sri Dipak Chawra 6) Sri Kina Ram Kalita DEFENCE WITNESSES NONE MATERIAL EXHIBIT:- 1. Seized money of Rs. 750/- Smti Sorbani Bhattacharjee, Judicial Magistrate,First Class Golaghat

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