DHIRA CHOUDHURY Vs. STATE OF ASSAM

JUDGEMENT

(1.) ON 16.9.1981, upon hearing the parties and on threadbare scrutiny of the evidence the conviction and sentence passed against the appellant were set aside. We expressed that a reasoned judgement will follow. We now deliver the reasoned judgement.

(2.) THE appellant was convicted under Section 395/397 I.P.C. and sentenced to 5 years R.I. by the Additional Deputy Commissioner, Karbi Anglong. The prosecution case is that on 24.6.1975 at or about 2.30 P.M., Loknath Mukherjee since dead, a senior office clerk of Lahorijan T. E. along with PW -4, Paulush Guria were returning with cash from Dimapur. When they reached near the Tea Estate, a gang of 7/8 persons over -powered them and snatched away Rs. 3,300/ - from PW -4, Paulush Guria, at pistol point. Some nearby persons including PW -3 and PW -5 raised alarm, chased the gang and a few personnel of the 4th Assam Police Battalion rendered help and one of them caught a person, later identified as Monbahadur Thapa. The police arrested Monbahadur and an Ejahar was lodged by Loknath Mukherjee wherein the name of the accused appears. The police, on completion of investigation, submitted a charge -sheet against the appellant and Monbahadur under Section 395/397 I.P.C. The prosecution examined as many as 9 witnesses. The case was tried by the Additional Deputy Commissioner, Karbi Anglong at Diphu under "The Rules for the Administration of Justice and Police in Mikir Hills District". Both the appellants were convicted under Section 395/397 I.P.C. and each sentenced to five years R.I. Dhira Choudhury the appellant has preferred this appeal.

(3.) MR . P. Das Gupta, learned counsel for the appellant, advanced weighty arguments dealing with circumstantial evidence. Counsel contended that there was no legal evidence against the appellant. The learned counsel made two - pronged assault on the evidence. Counsel submitted that the alleged circumstantial evidence, the foundation for conviction, was neither 'evidence' nor circumstantial evidence as the facts alleged and proved were not compatible with the guilt of the appellant. Counsel has also pointed out that the learned Magistrate admitted and used inadmissible evidence when he used the statements of Loknath Mukherjee who had died before the commencement of the trial. Counsel submitted that the statements in the Ejahar was not substantive evidence and could not be so used to bear up the prosecution case. Counsel further submitted that the said statement of late Loknath Mukherjee about his claim of recognition stood completely demolished and wrecked by the testimony of the witnesses examined by the prosecution as none of them affirmed that late Loknath Mukherjee could name or place any culprit at or about the time of the occurrence.