S. R. K. PRASAD, J.

( 1 ) THE accused has preferred this appeal against the judgment of conviction and sentence of rigorous imprisonment for a period of one year and imposition of fine of Rs. 5,000. 00 for the offence under Section 353 IPC, passed by the in Additional Metropolitan Sessions judge-cum-Special Judge for Trial of cases under the Essential Commodities Act in S. C. No. 516ofl995.

( 2 ) THE factual matrix that arise for consideration can be briefly stated as follows: rigorous imprisonment for six months. Aggrieved thereby, the accused has preferred this appeal.

( 3 ) THE point that arises for consideration is "whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence punishable under Section 353 IPC"?

( 4 ) THE learned Counsel appearing for the appellant contends that non-examination of Sirajul Hasan is fatal to the version of the prosecution. It is further contended that recovery was not made by the officer who recorded the confession statement and it was recovered by another police officer, who took charge of this case. Moreover, there is discrepancy in the evidence of police officials and the independent witnesses regarding recovery of the property. Therefore, it is contended that the accused is entitled to be given benefit of doubt.

( 5 ) THE learned Public Prosecutor on the other hand contends that the evidence of police officials is reliable and has to be accepted. It is also contended that the lower court has rightly come to the conclusion in finding the accused guilty of the offence punishable under Section 353 IPC.

( 6 ) ADVERTING to the said contentions, i am of the view that the prosecution has to prove that there was an attack on the sirajul Hassan, and the prosecution had to examine Sirajul Hassan. Non-examination of the said witness is certainly fatal to the prosecution case; since no explanation is forth coming for failure to prove the said version. Further no independent evidence is forthcoming corroborating the evidence of police officers. In the absence of such evidence, I am of the considered view that much reliance cannot be placed on the testimony of police officials. The contention of the police officials that PW. 1 fired two rounds aiming below the knees of the accused, when the accused tried to attack them, cannot be believed, since the necessary material is not forthcoming with regard to the same. The prosecution ought to have placed the documentary evidence in support of its version. In the absence of any such material, it cannot be said that they have fired two rounds aiming below the knees of the accused. The only piece of evidence is Ex. P-2-F. I. R, and the same cannot form part of evidence. More so, the Trial Court ought not to have proceeded with the premise that the accused is a rowdy-sheeter, as the prosecution has come with a specific case that the accused is a rowdy-sheeter. The Court has to again record evidence after framing charge about that aspect and can consider the same so as to impose enhanced punishment. The accused is entitled to take the plea of innocence and the Court has to presume until the contrary is proved. Moreover, no record is produced before the court to show that he is a rowdy-sheeter. The prosecution cannot ask the Court to presume that a particular person is a rowdy- sheeter, without producing any documentary evidence.

( 7 ) COMING to the aspect of recovery of the property, it is to be seen that PW. 6 is said to have recorded the confessional statement of the accused under Ex. P. 3. PWs. 3 and 4 are the persons who attested the panchanama and they turned hostile. PW. 4 did not identify the accused in the Court hall and he clearly stated that the police have not taken him to anywhere but shown a knife stating that they seized it from a person and further asked him to sign on some papers, and hence, he signed. The version of the independent witness is different from that of the police. There is no cogency and consist

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