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ARUN DEV CHOUDHURY
Hemen Chandra Nath, S/o Lt. Senai Nath – Appellant
Versus
State of Assam – Respondent
JUDGMENT :
Arun Dev Choudhury, J.
1. Heard Mr. B. Hussain, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent.
2. The present application under Section 401/397 of the Code of Criminal Procedure, 1973 read with Section 482 of Cr.PC. is filed assailing the judgment and order of conviction dated 06.04.2011 passed by the learned Additional Chief Judicial Magistrate, Morigaon in SCR No. 44/2009 under Section 406/417 of IPC and convicted the accused petitioner under Section 406 of IPC and sentenced him to undergo R.I. for 1 (one) year and to pay a fine of Rs. 5,000/-. The further challenge is the Judgment and Order dated 18.11.2011, passed by the learned Sessions Judge, Morigaon in Criminal Appeal No. 11/2011, whereby the Judgment and Order of Conviction dated 06.04.2011 was modified and the accused was acquitted from the charges under Section 406 of IPC, however, he was convicted under Section 379 of IPC and was sentenced to undergo R.I. for 1 (one) year and also to pay a fine of Rs. 5,000/- and in default S.I. for another 2 (two) months.
3. Mr. Hussain, the learned counsel for the petitioner fundamentally argues th
The prosecution must prove the guilt of the accused beyond a reasonable doubt for a conviction under theft.
A conviction under Section 379 of IPC can be confirmed while allowing for probation if circumstances merit leniency.
The court may consider probation for offenders with no prior criminal history, reflecting rehabilitative justice principles.
A conviction under Section 379 IPC cannot be upheld on weak circumstantial evidence without direct supporting witnesses, especially if independent witnesses are hostile.
Conviction under Section 411 IPC requires specific charge and solid proof of seizure; reliance solely on presumption is inadequate.
The prosecution must establish every element of the crime beyond reasonable doubt, including common intention among co-accused, for a conviction under Sections 457 and 380 of IPC.
Possession of stolen property shortly after theft creates a presumption of guilt, requiring the accused to explain such possession.
The prosecution must prove the case beyond reasonable doubt, and the burden of proof cannot be shifted towards the accused. The absence of criminal breach of trust in certain situations was also high....
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