STATE OF ASSAM versus SRI MRIDUL BARUAH & ONE

IN THE COURT OF THE JUDICIAL MAGISTRATE 1st CLASS

DIBRUGARH, ASSAM

GR CASE NO-1236/97

u/s 379/34 IPC

THE STATE OF ASSAM ------Sri Budhin Bordoloi (Informant).

-Vs-

SRI PROMUD GOGOI & 3 others ------Accused persons.

PRESENT: NUR MUHAMMAD ABDULLAH AHMED

JUDICIAL MAGISTRATE 1ST CLASS

DIBRUGARH, ASSAM

APPEARANCE:

(1) Mr H. K. Gogoi ----- Ld Addl. PP for the State.

(2) Mr A. Saikia, Mr U Shah & Mr B Ahmed

----- Ld Counsel for the accused persons.

EVIDENCE RECORDED ON ------22/03/12 & 04/04/12,

ARGUMENTS HEARD ON ------30/07/12.

JUDGMENT DELIVERED ON ------30/07/12.

J U D G M E N T

1. The prosecution story in brief is that on 11/07/1997, Sri Budhin Bordoloi, the Senior Engineer Production OIL, Duliajan lodged an ejahar with the Duliajan P.S stating inter alia that on 10-07-1997 at about 7 a.m, when he was on duty in the NHK Well No-41, he found that approximately 1000 metres of tubes were missing from that place which were used as flow line of NHK Well No-41. Hence the case.

2. On receipt of the ejahar, Duliajan P.S Case No-59/1997 u/s 379 IPC was registered against unknown accused persons. The investigation into the case was commenced and after the completion of the usual investigation, charge sheet u/s 379 IPC was submitted against the accused persons namely, Sri Amrit Lama, Sri Jitu Deka, Sri Diganta Mech, Sri Promod Gogoi and Sri Bhaskar Gogoi, to stand the trial.

3. Trial of the case was commenced. After the appearance of the accused persons namely, Sri Amrit Lama, Sri Jitu Deka, Sri Diganta Mech, Sri Promod Gogoi and Sri Bhaskar Gogoi, relevant copies were furnished to them. Both the sides were heard on the point of charge and the Court found grounds to presume that the accused persons have committed an offence u/s 379 IPC. As such charge in writing u/s 379 IPC was framed against the above-named accused persons. On being read over and explained the contents of charge under the above-mentioned provisions, the accused persons pleaded not guilty and claimed to face the trial. The Case against the accused Sri Diganta Mech was abated on receipt of his death report on 25-05-11.

4. To bring home its charges, the prosecution side examined only three (3) witnesses including one seizure witness. The informant, I.O and other witnesses could not be examined as the prosecution failed to secure his attendance despite several opportunities were given to prosecution. Accused persons were not required to be examined u/s 313 Cr PC as there was no incriminating materials against them. The defence side declined to adduce any evidence in its defence. I have also heard the arguments of both the sides.

5. POINTS FOR DETERMINATION:

After the perusal of the case record, I have found the following points to be determined:

I)  Whether the accused persons namely, Sri Amrit Lama, Sri Jitu Deka, Sri Promod Gogoi and Sri Bhaskar Gogoi, in furtherance of their common intention, removed 1000 metres of tubes which were used as flow line of NHK Well No-41? If yes,

II)  Whether the accused persons, in furtherance of their common intention, removed the same without the consent of the owners on that day?

III)  Whether the accused persons, in furtherance of their common intention, removed the same with dishonest intention?

APPRECIATION OF EVIDENCE, DECISION AND REASONS THEREOF:

6. To determine the above mentioned points and to reach a judicial decision on the same, the Court has at its disposal the depositions of as many as three (3) PWs. Let me now discuss the germane evidence on record to determine the points.

POINT NO: I

7. PW-1 Sri Ashok Proja stated that he did not know as to why was called in the Court. But on being shown the C/R, he admitted that he has his signature in a paper. Prosecution exhibited that paper (Seizure List) as Ext-1 and the signature of PW-1 as Ext-1(1). During his cross-examination, PW-1 admitted that he did not know as to why his signature was taken in Ext-1. PW-2 Sri Bijoy Nayak stated in his deposition that at about one year ago, he heard about the commission of theft from Greenwood Tea Estate but he was taking food at that time in his house and at that time, the Choukiders caught those thieves. Then the police took his signature in a Seizure List. Prosecution exhibited that Seizure List as Ext-1 and the signature of PW-2 as Ext-1(2). During his cross-examination, PW-2 admitted that he did not see any tea leafs with the accused persons. He also admitted that since he met the accused persons in the line, so he did not know as to whether the accused persons committed theft on that night. He also admitted there was nothing written in Ext-1 when he put his signature therein. PW-3 Sri Sukra Bedia stated in his deposition that at about one year ago, three persons were caught when they were stealing green tea leafs from Greenwood Tea Estate. Then they handed over the accused persons to the Manager. During his cross-examination, PW-3 admitted that he did not know as to whether they caught the accused persons who were present in the Court. PW-4 Sri Bitra Bedia stated about his ignorance of the case.

8. If the above evidences of the PWs are scanned closely, it can be seen that there is no incriminating materials against the accused persons so much so that even the seizure witnesses (PW-1 & PW-2) stated about their ignorance although Ext-1 (Seizure List) speaks of seizure of green tea leafs from the accused persons in their presence. PW-1 stated that he could not identify the accused persons as there was darkness at that time. He further admitted that he did not know the contents of that Ext-1 and PW-2 admitted that nothing was written in Ext-1 when he put his signature therein. It is the accepted principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt and in case of any doubt, the benefit of doubt has to be given to the accused. An accused can not be convicted merely on the basis of surmise and conjectures. The foregoing adumbration led me to conclusion that the prosecution has miserably failed to prove that the accused persons namely, Sri Mridul Baruah and Sri Amit Gowalla, in furtherance of their common intention, removed green tea leafs from the Section 7A of Greenwood Tea Estate on 13/05/10 at about 11p.m as alleged. As the prosecution has failed to prove the point no-I, it would be futile to proceed with the determination of Point No-II and III. Considering the decision reached in point no-I, it can be said that the prosecution has failed to prove point no-II & III also.

9. From the above appreciation of evidences in its entirety, this Court is of the considered opinion that the prosecution has miserably failed to prove the case against the accused person. Upon finding the accused persons namely, Sri Mridul Baruah and Sri Amit Gowalla not guilty, they are acquitted of the charges u/s 379 IPC as was leveled against them. The accused person be set at liberty forthwith.

10. Given under my hand and seal of this Court on this 25th day of July, 2012.

(NUR MUHAMMAD ABDULLAH AHMED)

JUDICIAL MAGISTRATE 1ST CLASS

DIBRUGARH, ASSAM

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