JUDGMENT :

1. Heard Mr. P.P. Dutta, learned counsel appearing on behalf of the appellants. Also heard Mr. K.K. Das, learned Addl. P.P. for the State of Assam.

2. The petitioners Sri Sunil Mirdha, Sri Samim Ali and Bipul Kurmi are before this Court with an application under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short). The petitioners are aggrieved by the judgment and order dated 24.08.2016 passed by the learned Chief Judicial Magistrate, Jorhat in G.R. Case No. 1508/2011, convicting them under Section 380 of the Indian Penal Code (IPC for short) and sentencing them to undergo simple imprisonment for 6(six) months and to pay a fine of Rs. 1,000/-with default stipulation. The petitioners are also aggrieved by the judgment and order dated 13.12.2019 passed in Criminal Appeal No. 33/2016 passed by the learned Addl. Sessions Judge, Jorhat dismissing the appeal preferred by the petitioners and upholding the sentence passed by the learned Chief Judicial Magistrate, Jorhat.

3. The genesis of the case was that the petitioners who were casual labourers under the MES Contractor were found carrying copper wire and metal piece (Rang) from the Technical Area of Air Force Station at Jorhat. On being checked by the Sentry at 16.15 hours on 01.10.2011 at MES exit gate, the petitioners were caught red handed carrying the above mentioned articles. The metal piece carried by the petitioners weighed 3.250 Kgs, 3.750 Kgs and 3.520 Kgs respectively. The FIR was lodged by the Flying Officer Sri Pritpal Singh. The FIR was registered as Jorhat P.S. Case No. 710/2011, under Sections 380 IPC and the Investigating Officer was entrusted with the investigation.

4. The learned counsel for the petitioners laid stress in his argument that the concurrent decisions of both the trial Court and the Appellant Court are liable to be set aside. It is submitted that the prosecution has failed to prove that the copper metal was removed from the possession of the owner of the property for wrongful gain as it was not proved that the Air Force authority at Jorhat was the owner of the stolen property. The search and seizure was not conducted as per provisions of law. The prosecution has failed to examine other vital witnesses cited in the charge-sheet. Both the courts failed to appreciate the statements of the petitioners recorded under Section 313 Cr.P.C. The appellants were not given the benefit of the probation of offenders Act or the benefit under Section 360 Cr.P.C and so on and so forth.

5. The Investigating Officer (I/O in short) embarked upon the Investigation and on completion of investigation, charge-sheet was laid against the petitioners under Section 380 IPC. On commencement of trial, copies were furnished and charge was framed under Section 380 IPC. The petitioners abjured their guilt and claimed innocence. To substantiate its stance, the prosecution adduced the evidence of 4(four) witnesses and the defence cross-examined them to refute the charges.

6. The statements of the petitioners were recorded under Section 313 1(b) Cr.P.C. The petitioners denied their involvement in an evasive manner. The petitioners did not tender any evidence in defence. The appeal was decided on following point:-

“(i) Whether the impugned judgment and order dated 24.08.2016 passed by the CJM, Jorhat, Smti. Sharmila Bhuyan in G.R. Case No. 1508/2011 is sustainable in the law and facts of the case?”

7. The trial Court decided this case on the following points:-

(i) “Whether the accused persons on 01.10.2011, at about 4.15 p.m., at M.E.S. gate were found in possession of about 10.520 kgs of metal piece during check and thus committed theft of the said articles from the possession of M.E.S. authority from the MES camp, and thereby committed an offence punishable u/s 380 of the I.P.C.?”

8. It was held by the learned trial Court that the prosecution was fairly able to connect the link between the accused lifting up the stolen articles, up to the rec