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2007 DIGILAW 876 (JHR)

Niyaz Ahmad v. State of Jharkhand

2007-11-28

D.K.SINHA

body2007
JUDGMENT 2. The brief fact of the case was that one Sashikant Pandit and another Ram Baraik had made complaint before the Administrator, Ranchi Municipal Corporation, Ranchi about illegal water connection provided to the residents of Shanti Nagar, Garha Toli, Kanta Toli, within jurisdiction of Kotwali Police Station, Ranchi. The allegation was inquired into by the Deputy Administrator, Ranchi Municipal Corporation and after inquiry it was detected that about 13 persons had been provided water connection illegally by the petitioner herein, who was at the relevant time Pipe Line Inspector of the Municipal Corporation, collecting a total sum of Rs.50,0001- from the users. It was further alleged that the petitioner was responsible for such act of illegal water connection and that he had illegally obtained Rs.50,0001-as such a written complaint was made by the informant Ram Jatan Sharma, lncharge Jal Parishad, Ranchi Municipal Corporation and on the basis of which a case was registered on 27.10.1997 for the offence under sections 420/409" of the Indian Penal Code against the petitioner. 3. Mr. B.M. Tripathy, the learned Counsel submitted that the petitioner has been convicted for the offence under section 409 of the Indian Penal Code without any element to attract such offence under the facts and circumstances of the case. The prosecution failed -to adduce evidence in support of the charge that entrustment of any amount was made to the petitioner, who was a Pipe Line Inspector, to make out a case under section 409 of the Indian Penal Code. Similarly none of the allegedly users of water illegally from whom the amounts were collected by the petitioner was produced in the witness box in support of the case that he had entrusted certain amount to the petitioner in order to obtain water connection illegally. The aggrieved person i.e. P.W 3 Shankar Prajapati also did not support the prosecution case. 4. Advancing his argument Mr. Tripathy submitted that P.W 1 Shashikant Pandit enquired into the allegation and during inquiry he was conveyed by wives of Peter Barua and Mahindra Prasad that 13 persons of different coionies were provided water connection illegally. It was the simple hearsay statement of P.W 1 without any legal evidence that the petitioner Niyaz Ahmad had collected Rs.60,0001- from the residents of Shanti Nagar area and the amount so collected was not deposited in the office of Water Board. It was the simple hearsay statement of P.W 1 without any legal evidence that the petitioner Niyaz Ahmad had collected Rs.60,0001- from the residents of Shanti Nagar area and the amount so collected was not deposited in the office of Water Board. Admittedly this witness did not inquire from the persons who had allegedly obtained water connection illegally and therefore, the allegation made against the petitioner for the charge under section 409 IPC was baseless. Similarly P.W. 2 Ram Jatan Sharma, who was the informant of the case, admitted by testifying that he had lodged the FIR on the instruction of the senior officer without his personal knowledge of the fact of the case. P.W.3 Shankar Prajapati did not support the prosecution case. Similarly P.W. 4 Vishwanath Singh, who was the Investigating Officer of the case, had not examined any of the 13 persons against whom there was allegation that they had made entrustment of certain amount to the petitioner for providing water connection and pursuant to that connection was given illegally. The Investigating Officer under wrong notion described the office of Jalparishad of Ranchi Municipal Corporation being the alleged place of occurrence where entrustment was made. But in the same sequence he testified by expressing ignorance as to the place of alleged transaction. He admitted having found connections of water supply in the house of Peter Barua and Mahindra Prasad but derived information from others that there were illegal connections of water supply in other houses of Shanti Nagar and Kanta Toli. He further admitted having not taken pain to collect evidence of illegal water connection by digging earth at the alleged colonies. 5. Concluding his argument Mr. Tripathy submitted that the learned appel-ate court below without legal evidence on the record observed:- "The accused dishonestly provided water connection to several persons and thus caused wrongful loss to the Corporation as well as wrongful gain to himself. The accused had failed to give any plausible explanation for his illegal act. In fact the accused has not denied the prosecution allegation of providing unauthorized water connection to several persons." Such observation, according to the learned counsel, for dismissal of the appeal without legal evidence on the record against the petitioner cannot sustain and therefore, this Cr. The accused had failed to give any plausible explanation for his illegal act. In fact the accused has not denied the prosecution allegation of providing unauthorized water connection to several persons." Such observation, according to the learned counsel, for dismissal of the appeal without legal evidence on the record against the petitioner cannot sustain and therefore, this Cr. Revision application may be allowed by setting aside the judgment of conviction and order of sentence passed under section 409 of the Indian Penal Code recorded by the Trial Magistrate against the petitioner. 6. Having regard to the facts and circumstances of the case, I find substance in the arguments that the materials on the record were not sufficient on the record before the Trial Magistrate to convict the petitioner for the charge under section 409 of the Indian Penal Code. The prosecution miserably failed to prove the required ingredient of entrustment of Rs.50,000/- or more to the petitioner for the alleged charge under section 409 IPC. I further find substance in the arguments that the allegation was based upon speculation and not on material evidence. The leaned counsel pointed out that the prosecution failed to produce any witness on the dock claiming having entrusted any amount for illegal water connection. The informant had no personal knowledge about the facts of the case and other two witnesses failed to substantiate the charge by proving the ingredients as required to. prove for the offence under section 409 of the Indian Penal Code against the petitioner. The Investigating Officer investigated the case erroneously without recording statement of any of the 13 persons against whom there was allegation that they had obtained water connection illegally by entrusting certain amount to the petitioner. 7. In the facts and circumstances of the case, I find materials on the record for the indulgence of this Court in criminal revision and accordingly the judgment of conviction and order of sentence recorded against the petitioner Niyaz Ahmad in G.R. No. 2533 of 1997 corresponding to Tr. No. 283 of 2004 by the Court of Judicial Magistrate, 1st Class, Ranchi as well in Cr. Appeal No. 35 of 2004 by AJC, FTC, VI 11th Ranchi are set aside. The petitioner is acquitted from the charge. This Criminal Revision is allowed.