The central legal point established in the judgment is the requirement to prove the essential elements of theft as per Section 380 of the Indian Penal Code to establish the charge of theft.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. This instant criminal appeal is preferred against the judgment and order of acquittal dated 31.08.2001 passed by Learned Metropolitan Magistrate, 8th Court, Calcutta in Case No. C-1122/96 arising out of the T.R. No. 331/96 holding thereby the accused/respondents not guilty of having committed an offence under Section 380 of the Indian Penal Code.

2. Appellant filed a complaint on 20.06.1996 in the court of the Learned Chief Metropolitan Magistrate, Calcutta against the accused/respondents to the effect that on 16.12.1993 he filed a complaint in the court against the accused/respondents under Section 156(3) of the Code of Criminal Procedure being Case No. C/126/93. Accordingly a case was registered and investigation was going on.

The averments of complaint disclosed that on 05.02.1993 at about 12 noon the accused/respondents along with 30/40 persons including house breakers and anti-social forming an unlawful assembly in furtherance of their common intention attacked the room of the appellant at 3/H/31, Khalasitola Road (Personage Road) under Police Station Hastings, Calcutta – 700022 and by using of criminal force caused extensive damage to the room by breaking its door, roof and wall most wrongfully and illegally and dishonestly removed all belongings and valuable materials of the appellant, comprising of Clothing, Furniture, Utensils, One Bicycle, Radio-cum-Tape, One Steel Box containing of Cash of Rs. 1400/-, One Gold Tailak and other Gold Ornaments valued Rs. 12,000/-, gold and silver Ornaments were purchased for the marriage of the daughter of the appellant.

At the time of incident the appellant had gone to Mosque to attend Jumma Prayer. When the complainant returned, he found the accused/respondents gathered in front of his room. The accused/respondents were instigating the anti-socials assembled there to pull down his room and to remove all the articles and belongings of the appellant. Appellant out of fear ran away and lodged a G.D. Entry with Hastings Police Station but the police was found to be in-active. Thus the aforesaid Case No. C-126/93 was filed in the Court.

Pursuant to the direction of Court in the Case No. C-126/93 the Section ‘L’ Case No. 107 dated 30.03.1993 i.e. G.R. Case No. 107 dated 30.03.1993 i.e. G.R. Case No. 926/93 was instituted. Subsequently the aforesaid case was shifted the Hastings Police Station, Police did not investigate and file charge-sheet even after lapse of more than 3 years from the date of occurrence. Under the above circumstances Narazi petition was filed in form of the above stated case against the accused persons seeking justice.

3. Under Section 200 of the Code of Criminal Procedure, a prima facie case under Section 147/380 and 427 of the Indian Penal Code was noted by the Learned Chief Metropolitan Magistrate, Calcutta who issued summons against the accused/respondents.

4. Charge was framed against the accused/respondents under Section 380 of the Indian Penal Code.

5. The aforesaid charge was read over and explained to the accused/respondents to which they pleaded not guilty and claimed to be tried.

6. To prove his case the appellant adduced six witnesses including himself as PW-1.

7. On the other hand the accused/respondents adduced One oral evidence and three documentary evidence to rebut the charge against them.

8. However, the Learned Metropolitan Magistrate, 8th Court, Calcutta after considering the evidence and other materials on record was pleased to acquit the accused/respondents from the case on 31.08.2001.

9. Heard the submissions of both the Learned Amicus Curiae.

10. A circumspection of the prosecution witnesses revealed as follows:

i. PW-1 was the de-facto complainant of the instant case. He stated that he was the sole occupant of the premises situated at 3/H/31 Khalasitola Road, Calcutta-22, where the alleged incident transpired on 5.2.93, at 12pm. He further stated that, on the aforementioned date, subsequent to attending 'Jum