A.K. Goswami, J.

Heard Mr. M. Sarania, learned counsel for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam.

2. This appeal is directed against the judgment and order dated 1.11.2006 passed by the learned Additional Sessions Judge, Lakhimpur in Sessions Case No. 113(NL)/2002, convicting the appellant under Section 380 IPC and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for another six months.

3. The appellant, on the intervening night of 10.9.1995 and 11.9.1995, was a Home Guard and was assigned duty in the residence of one Biseswar Bora. There were three other Home Guards, namely Aku Orang, Rupeswar Bora, Lilakanta Sonwal, besides one Lance Nayak Bhadram Konwar, who was the In-charge.

4. It appears that on the basis of information given by the Officer-in-charge of Police Reserve to the Officer-in-Charge of Sadar Police Station, a GD entry No. 383 dated 11.9.1995 was registered and based on that investigation was started. Arms and ammunition belonging to the police department were stolen and these are: one stengun, two rifles, 50 rounds of stengun ammunition and 10 rounds of rifle ammunition.

5. It appears that subsequently, the investigating officer who was entrusted with the investigation of the case pursuant to the information received from the Officer-in-Charge of the Police Reserve, himself filed an ejahar at around 1.00 P.M. and based on the same, North Lakhimpur Police Station case No. 457/1995 under Section 380/120(B)/121/122 IPC was registered. In the said ejahar, the present appellant was implicated with the aforesaid theft of arms and ammunition. It was mentioned that he had fled away with such arms and ammunition.

6. After completion of investigation, charge sheet was submitted against the present appellant as well as two other persons, namely, Dimbeswar Saikia and Krishna Barua @ Keshab Barua, showing all of them as absconders, under Section 380/120(B)/121/122 IPC. It was mentioned in the charge sheet that incriminating materials were also found against Tileswar Saikia, Pulak Saikia and Manas Bora, but they could not be sent up for trial as they had expired in the meantime.

7. After ensuring appearance of the accused persons, the case was committed to the court of Sessions by the learned Magistrate as the case was exclusively triable by the court of Sessions and, accordingly, Sessions Case No. 113(NL)/2002 was registered in the Court of Sessions Judge, FTC, Lakhimpur. Charges under Section 380/34 and 120(B)/121/122 IPC were framed against the accused persons to which they pleaded not guilty and claimed to be tried.

8. During trial, prosecution examined six witnesses. In his statement recorded under Section 313 Cr.P.C., the appellant had taken the plea that he was on leave prior to three days of the date of occurrence and was thus not present on the date of incident. However, defence did not adduce any evidence. On consideration of the evidence on record and upon hearing the learned counsel for the parties, Dimbeswar Saikia and Keshav Barua were acquitted of the charges as no evidence was found against them. The learned trial court, as noticed earlier, convicted the appellant only under Section 380 IPC.

9. Mr. Sarania has submitted that though PW 6, the Investigating Officer, had deposed that in the information given from the police Reserve based on which a GD entry was recorded, name of the appellant was mentioned as the accused person, prosecution had not exhibited the GD entry and, as such, the same is a serious flaw in the prosecution case. The Investigating Officer having been entrusted with the duties and he, in fact, having come to the place of occurrence for investigation on the basis of the GD entry, his own FIR lodged much later cannot be construed as an ejahar in the eye of law as the same is hit by Section 162 Cr.P.C. He has further contended that PW 6 could not have