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2009 DIGILAW 232 (GAU)

Dulal Ch. Baidya v. State of Tripura

2009-04-01

UTPALENDU BIKAS SAHA

body2009
JUDGMENT U.B. Saha, J. 1. Both the appeals arise out of the common judgment and order dated 27-5-2005 passed by the learned Special Judge, South Tripura, Udaipur in Case No. Special 2 of 2007 whereby and where-under the appellant in both the cases were convicted under Section 136 of the Electricity Act, 2003 (hereinafter referred to as 'the Act of 2003') and sentenced to suffer R.I. for two years and to pay of fine of Rs. 1,000/-each, in default to suffer further R.I. for six months and as such the same were taken up together for hearing and are being diposed of by this common judgment and order. 2. Heard Mr. S. Talapatra, learned senior counsel, assisted by Mr. P. Sarkar, learned Counsel for the appellant in Crl. A. No. 53 of 2008 as well as Mr. P. Roy Barman, learned Counsel appearing for the appellant in Crl. A. No. 60 of 2008. Also heard Mr. D. Sarkar, learned Counsel Public Prosecutor for the respondent in both the appeals. 3. The prosecution case, in brief, is that one Major Kr. Deb Barma, the Senior Manager, Amarpur Electrical Sub-Division, Amarpur lodged a written complaint before the Officer-in-Charge of Birganj Police Station, Amarpur alleging inter alia, that he sent Shri Dulal Chandra Baidya Manager of the office (appellant in Crl. A. No. 53 of 2008), for collection of GI Wire along with other store materials from the Central Stores. A. D. Nagar, Agartala. In the ejahar it was also stated that though said Baidya received 485 kg. GI Wire and the some was dispatched from Central Stores, Agartala through truck bearing No. TRL-3272 on 26-7-2006, but on arrival of the truck at Amarpur on 27-7-2006, shortage of 204.5 kg. GI wire valuing Rs. 10,754.65 was noticed. On receipt of the aforesaid First Information Report, the police registered the same as Birganj P.S. No. 22/06 under Section 379 of the Indian Penal Code and Section 136 of the Act of 2003 and started investigation. On completion of investigation, the investigating authority filed charge sheet against the accused-appellants under Section 136 of the Act of 2003. On receipt of the charge-sheet, the learned Special Judge framed charge against the accused-appellants under the aforesaid Section of the Act of 2003 to which the accused-appellants pleaded not guilty and claimed to be tried. 4. On completion of investigation, the investigating authority filed charge sheet against the accused-appellants under Section 136 of the Act of 2003. On receipt of the charge-sheet, the learned Special Judge framed charge against the accused-appellants under the aforesaid Section of the Act of 2003 to which the accused-appellants pleaded not guilty and claimed to be tried. 4. To being home the charge prosecution examined as many as 12 witnesses including the official witnesses and exhibited some documents including the seizure list and the gate pass. Defence did not examine only witness in support of their case as their case was of pure denial. 5. On completion of examination of prosecution witness, the learned Special Judge examined the accused-appellants under Section 313 of the Code of Criminal Procedure and thereafter, upon hearing the learned Counsel for the parties and considering the evidence on record the learned Special Judge convicted and sentenced the accused-appellants as stated (supra). Hence the present appeals. 6. Mr. Talapatra, learned senior counsel appearing for the accused-appellant in Crl. A. No. 53 of 2008 contended that the entire trial is vitiated as the learned Special Judge took cognizance on the basis of a police report filed under Section 173 of the Cr. P.C. but not in accordance with the provisions of Section 151 of the Act of 2003 wherein it is specifically stated that no Court shall take cognizance of an offence punishable under the Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose, it is also contended by Mr. Talapatra that the impugned judgment of the learned Special Judge is wholly based on surmise and conjecture. Moreso, even if it is assumed that the accused-appellant was entrusted with the materials then also there is no evidence that it is he who committed the theft as alleged rather from the evidence available it would be evident that the entire materials were weighed in absence of both the accused-appellants, which also creates doubt regarding the involvement of the accused-appellants in the alleged crime. His further contention is that the FIR itself would show that though the accused-appellant Dulal Ch. His further contention is that the FIR itself would show that though the accused-appellant Dulal Ch. Baidya revelved the materials and the same were dispatched through truck No. TRL-3272 from Agartala to Amarpur, he was not in the said truck and the materials were unloaded at Amarpur in his absence by the informant and not only that the presence of one Assistant of the vehicle at the time of unloading of the materials also creates a doubt about the prosecution case as P.W. 10. Shri Prabhat Rn. Saha, the owner of the vehicle specifically stated in his deposition that there was no Assistant in his vehicle except the driver namely, Nakul Ch. Dey, the accused-appellant in Crl. A. No. 60 of 2008 and though the said Assistant was examined by the police, he could not be produced before the Court. Non-examination of such a witness also creates doubt regarding the prosecution case. He also contended that the Magistrate who recorded the statement of P.W. 7 was not examined by the prosecution and P.W. 7 also rescinded from his earlier statement made before the Magistrate. Therefore, it was not proper for the learned Special Judge to rely on the evidence of P.W. 7 for the purpose of conviction of the accused-appellants. He pointed out from the evidence of P.W. 3, the informant that P.W. 3 took the weight of the GI wire and found the said shortage. At the time of weighing the accused-appellant Dulal Baidya was not present and the driver and assistant were present. Thereafter, he reported the matter to the O/C. of Birganj Police Station. But P.W. 3 in his cross stated that at the time of unloading the materials from the vehicle police were present meaning thereby the statement of P.W. 3 in his deposition and cross contradicts each other for which he cannot be treated as a believable witness. Learned senior counsel also referred to the deposition of P.Ws. 1 and 2 wherein those witnesses stated that they took weight of the GI wire and subsequent to that the police officer of Birganj Police Station came to their office and took all the bundle to the Police Station after preparing the seizure list. P.W. 2 in his cross stated that the police was not present when they unloaded the truck in their office. P.W. 2 in his cross stated that the police was not present when they unloaded the truck in their office. He (P.W. 2) also stated that the driver of the vehicle was not present at that time, but the assistant was present. Mr. Talapatra contended that the learned Special Judge relied on Section 161 statement of P.Ws. 5 and 7 for the purpose of conviction of the accused-appellants though those witnesses completely denied that they had made any statement to the police. He finally contended that the original indent was not placed before the learned trial Court and withholding of the said incident also creates a doubt regarding the prosecution case. His contention is that even if there was any shortage of the materials, the accused-appellant cannot be made responsible for such shortage and there is no iota of evidence that after the dispatch of the materials from the Central Stores, Agartala at any time the accused-appellant Dulal Ch. Baidya entered into the vehicle or he had unauthorisedly taken away any part of the materials. 7. Mr. Roy Barman, learned Counsel appearing for the appellant in Crl. A. No. 60 of 2008, Shri Nakul Ch. Dey while adopting the submission of Mr. Talapatra submits that the accused-appellant Nakul Ch. Dey is in no way involved with the alleged offence of theft and there is no evidence at all against him except the statement that he was the driver of the said vehicle. He contended that the learned Special Judge relied on the statement of P.Ws. 7 and 10 for the purpose of convicting the accused-appellant, particularly the driver though it would be evident from the evidence of those witnesses that there is no incriminating evidence against the accused-appellant Nakul. He again contended that the entire trial should be vitiated only on the ground that in Section 313 examination none of the accused-appellant were put the question whether they committed the alleged theft of GI wire or not though the learned Special Judge put so many questions to them including the question that whether at the relevant date and time they were the Junior Engineer and driver of their Amarpur Electrical Sub-Divisional Office respectively. 8. Mr. Sarkar, learned Public Prosecutor fairly submits that from the evidence available on record, it cannot be said that the prosecution proved its case beyond any reasonable doubt. He also supports the contention of Mr. 8. Mr. Sarkar, learned Public Prosecutor fairly submits that from the evidence available on record, it cannot be said that the prosecution proved its case beyond any reasonable doubt. He also supports the contention of Mr. Talapatra and Mr. Roy Barman that the learned Special Judge convicted the accused-appellant solely on the basis of presumption. According to him also unloading of the materials in absence of both the accused-appellants creates a doubt about the prosecution case as the normal procedure for unloading the materials is that the some should be unloaded in presence of the person who received dispatched and carried the same. 9. For better appreciation of the submission of the learned Counsel for the parties. It would be proper to re-produce the salient portion of the evidence of P.Ws. 1,2, 3, 5, 7 and 10. Accordingly, the same are re-produced herein under: P.W. 1, Dhirendra Ch. Pal in his deposition stated that they took weight of the GI wire. Subsequently, the police officer of Birganj Police Station came to their office and took all the bundles to the police station. The police officer seized those GI wires after preparing a seizure list. In his cross, this witness stated that at the time of weighing the materials, accused-appellant Dulal Ch. Baidya was not present. P.W. 2, Atul Chandra Banik corroborated the statement of P.W. 1 in his cross, he stated that when they unloaded the truck, the driver of the vehicle was not present, but the assistant of the vehicle was present. P.W. 3 Manoj Kumar Debbarma, the informant deposed that they took the weight of the GI wires and found the shortage. At that time the accused-appellant Dulal Ch. Baidya was not present but the driver and assistant of the vehicle were present "hereafter, he reported the matter to the Officer-in-charge of Briganj Police Station. But in his cross, this witness stated that at the time of seizure the driver of the vehicle was not present, the assistant of the vehicle was present. The police recovered the G.I. wire from the back side of the shop of P.W. 7.Prahallad Rn. Saha, in his cross, he stated that they unloaded the vehicle for measurement after arrival of police. P.W. 5, Kumud Debnath stated that he saw electric wire in the vehicle of the police. The police recovered the G.I. wire from the back side of the shop of P.W. 7.Prahallad Rn. Saha, in his cross, he stated that they unloaded the vehicle for measurement after arrival of police. P.W. 5, Kumud Debnath stated that he saw electric wire in the vehicle of the police. He did not state to the I.O. that on 27-7-2006, he saw that the accused-appellant Dulal Ch. Baidya and the driver of the vehicle of his brother had dropped some electric wire and kept inside the boundary of Prahhalad Ch. Saha (P.W. 7) and subsequently he brought the matter to the notice of P.W. 7. P.W. 7, Prahhalad Rn. Saha deposed that the police officer took his signature over a blank paper. The police officer took his signature stating that there are some allegations against him. He was taken to the Court via Police Station where he made statement before a Magistrate. He did not know the accused persons. P.W. 10, Prabhat Ranjan Saha, the owner of the vehicle in his deposition stated that accused-appellant Nakul Ch. Dey was the driver of his vehicle (Truck) No. TRL-3272 on 26-7-2006, but his vehicle had no assistant. 10. On going through the evidence of prosecution witnesses and the impugned judgment of the learned Special Judge and upon consideration of the submission of the learned Counsel for the parties, this Court is of the considered opinion that the learned Special Judge failed to properly appreciate the evidence of prosecution witnesses. He also failed to consider the purpose of examination of the accused-appellants under Section 313 of the Cr. P.C. The examination of an accused under Section 313, Cr. P.C. is not a mere formality, the questions put and answers given have great use. The purpose of examination is to bring the substance of accusation to the notice of the accused. In the instant case, the allegation of the prosecution against the accused-appellants is commission of offence punishable under Section 136 of the Act of 2003, i.e. theft of electric materials. At the time of examination under Section 313, Cr. P.C. though the learned Special Judge put so many general questions like whether they admit the shortage of 204.500 kg. of GI wire, whether they admit the loss of Rs. 10,755/- (approx.) by the department etc. At the time of examination under Section 313, Cr. P.C. though the learned Special Judge put so many general questions like whether they admit the shortage of 204.500 kg. of GI wire, whether they admit the loss of Rs. 10,755/- (approx.) by the department etc. to the accused-appellants, but he did not put the vital questions to the accused-appellants which could help them to examine the evidence of the prosecution witnesses by which they were implicated with the alleged offence of theft of electric materials, which is sine qua non in trial of a criminal offence like theft. 11. In the case of Bakhshish Singh Dhaliwal v. The State of Punjab reported in 1967 CriLJ 656 the Apex Court considering the scope of Section 342, Cr. P.C. 1898 (corresponding to Section 313 of the Code) held in para 33 of that judgment as follows: 33 ...Under that provision, questions are put to an accused to enable him to explain any circumstances appearing in the evidence against him, and for that purpose, the accused is also to be a questioned generally on the case, after the witnesses for the prosecution have been examined and before he is called on for his defence.... 12. In S. Harnam Singh v. The State (Delhi Admn.) reported in 1976 CriLJ 913, the Apex Court held thus: 22. Section 342 of the Code of Criminal Procedure. 1898, casts a duty on the court to put, at any enquiry or trial, questions to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if it is shown to have prejudiced the accused.... 13. The aforesaid decision of the Apex Court in S. Harnam Singh (supra) was also followed by the Orissa High Court in Sudhakar Sarangi v. State 1991 (II) OLR 272 wherein it is held: The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. 13. The aforesaid decision of the Apex Court in S. Harnam Singh (supra) was also followed by the Orissa High Court in Sudhakar Sarangi v. State 1991 (II) OLR 272 wherein it is held: The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of Court, all these are subject to rider whether they have caused miscarriage of justice or prejudice. In the aforesaid case, it is further held - "Non-indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. A bald statement asking the accused whether he committed an act of indiscretion like outraging modesty of a woman without even indicating when the alleged occurrence is supposed to have taken place is non-compliance of the statutory mandate. Recording of a statement of the accused under Section 313 is not a purposeless exercise...." 14. Again in Basavaraj R. Patil v. State of Karnataka 2000 CriLJ 4604 , the Apex Court discussed about the aim and object of Section 313, Cr. P.C. and observed as follows: Section 313, Cr. P.C. is mainly intended to benefit the accused and as its corollary to benefit the Court in reaching the final conclusion. The provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of Sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the Court does not put any question under that clause the accused cannot raise any grievance of it. But if the Court fails to put the needed question under clause (b) of the subsection it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. 15. But if the Court fails to put the needed question under clause (b) of the subsection it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. 15. In the instant case though so many general questions were put to the accused-appellants by the learned Special Judge, but he did put no such question to the accused-appellants by which their involvement in the alleged crime could be ascertained. Therefore, there is no hesitation in the mind of this Court to hold that the learned Special Judge failed to consider the purpose of examination of the accused-appellants under Section 313, Cr. P.C. for which so they have been prejudiced. Accordingly, this Court further hold that the accused-appellants were denied the benefit of doubt, which they were entitled to in accordance with law. 16. In State of West Bengal v. Orilal Jaiswal 1994 CriLJ 2104 , the Apex Court in para 15 held thus: 15. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498A, IPC and Section 113A of Indian Evidence Act. Although, the Court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the fats and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter. 17. Lord Denning in Bater v. Bater has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter. 17. It is also settled by this time that if from the evidence of the prosecution witnesses two views are possible then the view, which supports the case of the accused should be accepted by the Court. In the instant case, from the evidence of P.Ws. 1, 2 and 3, a doubt creates in the mind of this Court regarding the truthfulness of the prosecution case. Not only that when the owner of the vehicle (P.W. 10) specifically stated in his deposition that he never engaged any Assistant for his vehicle, it is not clear to this Court from where the prosecution got the said assistant for examining him in support of its case, it is also not clear to this Court how a Court can take note of the statement of a witness recorded under Section 161, Cr. P.C. for the purpose of convicting the accused person when the said witness himself stated before the Court that he never deposed to the investigating agency regarding the alleged incident and also his statement was not recorded under Section 161, Cr. P.C. Moreso, there is a difference between 'missing' and 'theft' in the instant case, at best it can be said that certain quantity of materials namely, GI wire were missing which was later on recovered by the police from the back side of the house of P.W. 7. But the said seizure was also not proved. Therefore, it can be easily held that the prosecution failed to prove its case beyond reasonable doubt. 18. Not only that, there are some procedural defect as regards the cognizance taken by the learned Special Judge. As per Section 151 of the Act of 2003, the cognizance can only be taken on the basis of the complaint lodged by the appropriate authority as mentioned in the section. But as the law has been changed by the legislature subsequently and also permitted the Court to take cognizance on the basis of the police report, it would not be proper for this Court to set at naught the trial only on the basis of technical objection raised by Mr. But as the law has been changed by the legislature subsequently and also permitted the Court to take cognizance on the basis of the police report, it would not be proper for this Court to set at naught the trial only on the basis of technical objection raised by Mr. Talapatra, learned Senior Counsel for the accused-appellant in Crl. A No. 53 of 2008 that no cognizance can be taken on the basis of police report. 19. For the foregoing reasons and discussions, this Court is of the considered view that the impugned judgment and order of the learned Special Judge dated 27-5-2008 requires to be set aside, which this Court accordingly do. The appellants are acquitted from the charge. 20. It is submitted by the learned Counsel for both the appellants that they are on bail. Therefore, they need not surrender before the Court. Their bail bond stand discharged. 21. With the above observations and direction, both the appeals are allowed.