JUDGMENT

1. The Criminal Appeal No. 105/2010 has been preferred by the appellant against the judgment and order, dated 30.06.2010, passed by the learned Additional District & Sessions Judge (FTC), Karimganj, in Sessions Case No. 10/2009, convicting the appellant under Section 412 of the IPC and sentencing him to rigorous imprisonment for 4 (four) years with a fine of Rs 2,000/- and in default of payment of fine, rigorous imprisonment for 3 (three) months.

2. Heard Mr. A Ahmed, learned counsel for the appellant as well as Mr. K Konwar, learned Additional Public Prosecutor, appearing for the State respondent.

3. I have perused the records of the learned trial court, including the evidence and the impugned judgment.

4. The fact of the case is that on 18.02.1995, a gang of dacoits, armed with dagger and other deadly weapons, entered into the house of one Sukesh Ranjan Bhattacharjee of Longai Road, Karimganj Town, tied up the family members and looted the gold ornaments, cash money, etc from his house. The dacoits also physically assaulted the members of the family while they resisted them from committing the offence.

5. After completion of investigation, the police laid the charge-sheet against the appellant and others. The learned trial court tried the case of this appellant on being committed by the learned Magistrate. After exhausting all the required legal formalities, a formal charge was framed against this appellant under Section 412 of the IPC to which he pleaded innocence and claimed to be tried. Therefore, the trial commenced.

6. The prosecution examined as many as 10 (ten) witnesses, including the Investigating Police Officer. In his statement recorded under Section 313 of the Cr.PC , the appellant denied the allegations made against him and has taken the plea that whatever was seized from his jewellery shop, vide Exts. 5 and 6, belonged to his customers.

7. On perusal of the judgment of the learned court below and the evidence on record, it appears that the learned trial court has relied upon the evidence of PW1, PW2 and PW10 to hold that the appellant had received stolen properties involved in this case, i.e. the jewellery which was seized vide Exts. 5 and 6.

8. On examination of the evidence on record, it appears that police seized some ornaments which the PW1 identified to be his. Similarly, the evidence of PW2, is that the seized ornaments belonged to them. PWs 3 to 9 are not found deposing as regard the seizure of the gold ornaments allegedly taken away from the house of the informant.

9. PWs 6 and 7 are witnesses to the seizure made vide Ext. 3 which, however, does not relate to the gold ornaments involved in this case.

10. The evidence of PW10, the Investigating Police Officer makes it appear that he has seized the gold ornaments vide Exts. 5 and 6. But, he has admitted that the gold ornaments were not produced in the court while he was being examined as witness. There is also no evidence by PW1 and PW2, who allegedly identified the seized gold ornaments, that the seized ornaments were produced and identified by them in the court.

11. The fact remains that the seizure of the gold ornaments vide Exts. 5 and 6 has not been disputed by the appellant. But, in his statement recorded under Section 313 of the Cr.PC, he has taken the plea that the gold ornaments seized from his jewellery shop belonged to his customers. In view of such plea, it was necessary to produce the gold ornaments in court for proper identification, on oath, which, in fact, was not done by the prosecution in this case.

12. In the absence of identification of the gold ornaments in the court and there is specific evidence of the Investigating Police Officer (PW10) that the seized gold ornaments were not produced in the court while he was being examined speaks volume of the fact that without the gold ornaments being produced in the court and without their identification, a view was taken against the appellant. It does not also appear from the evidence