This appeal is directed against the judgment and order dated 04.04.2005 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 10(JN)/2003 convicting the appellant Sri Bilaman Pegu (herein after referred to as the ‘accused person’) of offence u/s 395 IPC and sentencing him to suffer imprisonment for 5 (five) years and also to pay a fine of Rs. 5000/- (Rupees Five Thousand) only i.d. R.I. for another 6 (six) months for the offence aforesaid.

2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused person has preferred this appeal citing several infirmities in the judgment under challenge.

3. We have heard Mr. S. C. Biswas, learned counsel for the appellant and also heard Mr. K. Munir, learned Addl. P.P., for the State.

4. The case, projected in the FIR dated 22.03.1991 and in subsequent trial, in short, is that on the night of 21.03.1991 at about 10 pm, some miscreants, armed with various weapons, such as, gun etc. came to the house of one Sombar Tayung of Rukmini Gaon, PS Jonai in the district of Dhemaji and demanded the inmates of the house aforesaid to open the door. Once the door was opened, the miscreants, their number being more than 5 (five), over powered Sombar Tayung and looted gold ornaments and other articles including a dagger and in that process, they broke open various boxes in his house and took away very many articles there-from.

5. According to Sambur Tayung, he could recognize one of the miscreants namely Bilaman, appellant herein, in the light of the torch light which he flashed after the entry of miscreants into the house. An FIR to that effect on being lodged by Sri Sombur Tayung with the O/C, Jonai PS on 22.03.1991, police registered a case vide Jonai PS Case No. 42/1991 u/s 392 IPC and ordered one Sri Abdus Samad, S.I of police to investigate the case.

6. Being so entrusted, Sri Samad visited the place of occurrence (in short, PO), examined witnesses, arrested the accused person in connection with aforementioned case who was also arrested in the meantime in connection with some other case which was, committed on the night of 21.03.1991, seized some articles allegedly taken away by miscreants from the house of informant, did other things needful and on the conclusion of investigation, he submitted charge sheet against as many as 8 (eight) accused persons showing Birinchi Doley, Dharmeswar Pegu and Bihua Doley as absconders.

7. In due course, learned Judicial Magistrate, before whom Charge –sheet was so laid, committed the case against accused Bilaman Pegu, Bani Kt. Doley, Baikuntha Kardong and Dimbeswar Pegu and Handique Doley to the court of sessions Judge, Dhemaji. Learned Sessions Judge, Dhemaji, after hearing the learned counsel for the parties, was pleased to frame charge u/s 395 IPC against accused persons aforesaid and charge, so framed, on being read over and explained to them, accused persons pleaded not guilty and claimed to be tried.

8. During trial, the prosecution side has examined as many as 9 (nine) witnesses including the informant and the I/O of the case. The statements of accused persons u/s 313 CrPC were also recorded, their plea was of total denial. On conclusion of trial and on hearing the learned counsel for the parties, learned Trial Court while acquitting all the accused persons except Bilaman Pegu, convicted him of offence u/s 395 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal.

9. Mr. S.C. Biswas, learned counsel for the appellant submits that judgment under challenge is unsustainable in law for reasons more than one. In that context, it has been stated that though the learned trial Court convicted accused person of offence u/s 395 IPC, yet, he blissfully overlooked the fact that prosecution could not establish that on the night in question, 5 (five) or more miscreants looted various properties from the house of the informant. Being so, the first ingredient of offence u/s 395 I