in the court of the chief judicial magistrate - Lakhimpur Judiciary

1IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE::LAKHIMPUR.NORTH LAKHIMPUR.GR. Case No.545/2012U/s.457/380, of the IPC.State of Assam,-Vs.-PRESENT:Shri S. Hazarika, AJS,Chief Judicial Magistrate,Lakhimpur, North Lakhimpur.1. Sri Manoj Gowala ________ Accused persons.Advocates who appeared in this case.Mr. S. R. Dey, learned Addl. P.P. for the State,Mr. Eunus Ali, learned Advocate for the accused persons.Date of framing the charge : 19-05-2012.Dates of recording evidence : 14-06-2012 &08-08-2012.Date of hearing argument : 14-09-2012.Date of delivery of Judgment : 28-09-2012.J U D G M E N T1. The prosecution case, in brief, is that on 18-04-2012 at around 2 a. m. in theearly hours of the morning the accused was caught red-handed while stealing somearticles by breaking the door of the shop of the informant. It is alleged that the NightChawkidar of Silonibari Bazaar caught the accused person red-handed along with thestolen articles and he was accordingly handed over to police. Informant Md.Kutubuddin lodged an ejahar with the O/C, North Lakhimpur Police Station to thiseffect. On receipt of the said ejahar, the present case was registered by the O/C, NorthLakhimpur Police Station and the case was investigated by ASI Tapan Lahan ofSilonibari Police Out Post.2. The I.O., during the course of investigation visited the place of occurrence,prepared a sketch map, arrested the accused person and forwarded him to custody.The I.O. examined witnesses. The I.O. also during the course of investigation seized thestolen articles and after completion of investigation submitted the charge sheet underSecs. 457/380, of the IPC.3. The accused faced trial as a UTP. The copies of relevant documents werefurnished. Upon hearing the submissions of both sides and considering the materialsavailable on record, charges u/ss. 457/380 of the IPC were framed and the contents ofthe charges were read over and explained to which the accused person pleaded notguilty and claimed to be tried.Page 1 of 4

4. POINT FOR DECISION:2The point fort decision in this case is-(i) Whether accused Sri Monoj Gowala on 18-04-2012 at around 2 a.m. atSilonibari Bazaar under North Lakhimpur Police Station committed lurking housetrespass by night by entering into the shop house of informant Kutubuddin withintent to commit theft, as alleged ?(ii)Whether the accused person on the same date, time and place committed theft inrespect of three pairs of shoes, cosmetics and other articles in the shop housebelonging to the informant Md. Kutuuddin so as hold the accused liable for theoffence u/s. 380, of the IPC?5. The prosecution side examined four witnesses including the informant. Duringthe course of hearing, the accused admitted his guilt and after recording the evidenceof four witnesses, the statement of the accused u/s. 313 of the Cr.P.C. was recordedwherein he admitted that he has committed the offence and prayed for exonerating himfrom the offence as this is being his first offence.6. I have heard arguments advanced by the learned counsels for both sides andalso gone through the evidence on record. I have also gone through the exhibits onrecord.DECISION AND REASONSFOR DECISION :7. In the instant case, the prosecution side examined four witnesses including theinformant as PW.-1, PW.-2 is the Chawkidar of Slonibari Bazaar , PW-3 and PW-4 areindependent witnesses so examined by the prosecution.8. PW.-1, in his evidence, stated that he is the informant of the case and he knowsthe accused. Some one and half of a year earlier at around 2 a. m. at night time anincident of theft took place in his shop situated at Silonibari Bazaar. He came to knowabout the incident in the morning. From his shop three pairs of shoes, fair and lovelybody care lotion etc. were taken away and the price of the stolen articles would beRs.4040/-. On that day, the Chawkidar of the Bazaar caught the accused whilecommitting theft in his shop. The Chawkidar recognized the accused in the light of atorch light who was found hiding as the Chawkidar found him. Later on, he raised'hulla' and the nearby people came and the accused was caught along with the stolenarticles. The accused admitted that he is guilty of committing theft and accordingly helodged an ejahar (Ext.-1).9. The evidence of PW-1 is also corroborated by PW-2 Md. Surab Ali who is theChawkidar of the Bazaar. He also stated that he found the accused along with thestolen articles, and the accused tried to hide himself when he saw the accused walkingaway with the stolen articles.10. PW.-3 also stated that he came to the market and saw the accused being caughtby some persons of Silonibari Bazaar and on being asked, he was told that the accusedwas caught while he was committing theft. Later on, police came and took him away.Page 2 of 4

311. PW.-4 also stated that he saw the accused being tied up by public and the stolenarticles were found in the possession of the accused . He proved Ext.-2, the seizure list.12. The evidence of four prosecution witnesses proves beyond reasonable doubtthat on the alleged date of occurrence at around 2 a. m. there occurred an incident oftheft in the shop of the informant (PW.-1). The evidence on record further shows thatthree pairs of shoes and some other articles kept in the shop of the informant weretaken away and those articles were recovered from the possession of the accused . Theincident occurred at Slonibari Bazaar and the Chawkidar of the Bazaar who deposedin his evidence as PW.-2 that he found the accused carrying a bag from where thestolen articles were recovered. The other two witnesses also stated that they found theaccused being caught by public when they reached the market in the morning. Allthese facts go to show that on the alleged date of occurrence at about 2 a. m. theaccused was found inside the Silonibari Bazaar and he was caught by the Chawkidar(PW.-2) and other persons. The fact of recovery of the stolen articles from thepossession of the accused is proved by the evidence of seizure witness and also by theChawkidar who is an eye-witness to the occurrence. Admittedly, none of the witnesseshave actually seen the accused breaking the door and entering into the shop of theinformant. However, the evidence of the witnesses amply proves that the accused was,in fact, found carrying some articles where the stolen articles from the shop of theinformant were also found. The evidence of the witnesses including the evidence of theChawkidar (PW.-2) who has first caught the accused and saw the accused carrying thestolen articles finds support from the evidence of other witnesses. The witnesses wereduly cross-examined by the defence. However, the evidence remained unrebutted andthe evidence appears to be cogent, reliable and believable one. The accused also in hisstatement recorded u/s. 313 Cr.P.C. admitted the fact that he committed the offenceand he prayed for lenient punishment as this being his first offence. The admission ofguilty on the part of the accused finds corroboration with the evidence of the witnesseson record. From the evidence as well as the documents on record, it appears to me thatthe prosecution has amply proved the charge against the accused beyond allreasonable doubt and the accused is found to have committed the offence u/s. 380, IPCas the ingredients of the offence u/s. 457, IPC about lurking house trespass andbreaking into the house could not be proved by any of the witnesses as there is nothingon record to show that the accused, in fact, committed house breaking. However, it isevident that the accused committed theft from the shop house of the informant. Hence,it is proved that he is guilty of the offense u/s. 380 of the IPC. Accordingly, he foundguilty of committing the offense u/s. 380 of the IPC and I convict him for the offenseunder the said Section of law.13. From the facts and circumstances of the case, I am of the view of that theaccused does not deserve any benefit either as per provision of Sec. 360 of the Cr. P.Cor under the provision of Sec. 3 /4 of the Probation of Offenders Act.Page 3 of 4

414. The accused is heard on the point of sentence. The accused submitted that thisis his first offence and he has realized his mistake and hence, the accused has prayedfor exonerating him from this case. He has further submitted that in the mean time hehas suffered a lost as he has been languishing in the custody for a long period.Considering all the above facts and circumstances, I am of the view that the accuseddeserves a lenient punishment.O R D E R.15. Accordingly, I acquit accused Sri Manoj Gowala from the charge u/s. 457, ofthe IPC, and convict him under Sec. 380 of the IPC and sentence him to undergo S.I.for 6 months and also to pay a fine of Rs.1000/- ( one thousand), and in default ofpayment of fine, the accused shall have to suffer S.I. for a further period of 1 (one)month. The period of detention, if any, during the investigation, inquiry or trial of thiscase, shall be set off against the term of imprisonment imposed on the accused-convict,as per provision of Sec. 428 of the Cr. P.C.2012.Given under my hand and seal of this Court on this the 28 th day of September,Typed to my dictationand corrected by me.(S Hazarika)Chief Judicial Magistrate,Lakhimpur North Lakhimpur.(S. Hazarika)Chief Judicial Magistrate,Lakhimpur, North Lakhimpur.Typed by:N. Paul,28-09-2012.************Page 4 of 4