The identification of stolen articles is irrelevant if they were not recovered. Additionally, solely relying on the confessional statement of a co-accused is not sufficient to convict other accused individuals.

JUDGMENT :

These appeals arise from the judgment of conviction and the consequential order of sentence dated 01.06.2018 delivered in Case No.ST/T-1/27/2017 by the Sessions Judge, North Tripura, Dharmanagar.

2. The appellants have been convicted under Section 395 read with Section 34 of the IPC for committing dacoity. In terms of the conviction, the appellants are sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/- with default stipulation. The detention they suffered has been directed to be set off against the term of imprisonment under Section 428 of the Cr.P.C.

3. The genesis of the prosecution case is rooted in the complaint filed against the unknown miscreants by one Anjali Nath [PW-1] on 25.09.2012 to the officer in charge, Dharmanagar PS. In the said complaint, a cognizable offence had been revealed by stating that in the wee hour of night, at about 2.10 a.m., when the complainant was sleeping, a group of seven or eight unknown persons entered their house and by breaking the latch they came inside their room and took away the golden ornaments with estimated value of 1.5 lakhs, a cash of Rs.25,000/-, five mobile phones. Those raiders had dao [a sharp edged cutting weapon], stick and kirich in their hand. They had assaulted complainant’s nephews namely Binoy Kumar Nath [not examined in the trial] and Tarun Kumar Nath [PW-6]. The complainant has asserted in the complaint that she would be able to identify those persons if she could notice them again. Based on the said complaint [Exbt.1] Dharmanagar PS Case No.164/12 under Section 395/397 of the IPC was registered and taken up for investigation. Against the appellants and four other persons namely (1) Jamal Uddin alias Jamu (2) Faka Ali alis Mulla (3) Mustak Ali and (4) Jamir Uddin alis Sankei the final report was filed by the police. Those four persons, according to the judgment dated 01.06.2018, are still absconding. The final report was filed sending up the arrested persons [including the appellants herein] to face the trial. On commitment, the trial Court framed the charge against the appellants under Section 395 read with Section 34 of the IPC and the charge was also framed under Section 397 read with Section 34 of the IPC for committing offence of robbery or dacoity with attempt to cause death or grevious hurt. It is to be noted that the trial Judge has acquitted the appellants from the charge under Section 397 read with Section 34 of the IPC. The appellants pleaded not guilty to face the trial.

4. The prosecution in order to prove the charge adduced eleven witnesses [PWs-1 to 11] including the complainant and Tarun Kumar Nath [PW-6]. That apart, the prosecution placed sixteen documentary evidence [Exbts.1 to 16] including the report of TI parade [including Exbts.2, 4 to 9]. After recording the evidence of the prosecution, the appellants were separately examined under Section 313 of the Cr.P.C. when they reiterated their plea of innocence and claimed to have framed falsely. On appreciation of evidence, the appellants were convicted for committing offence under Section 395 read with Section 34 of the IPC by the judgment dated 01.06.2018. The said judgment followed the sentence (supra).

5. Mr. S. Lodh, learned counsel has appeared for the appellants in Crl.A.(J) No.38 of 2018 and Mr. A. Nandi, learned counsel has appeared for the appellant in Crl.A.(J) No.28 of 2018.

6. Before we proceed further, it requires to be noted that out of the convicts, Md. Abdul Kayesh and Md. Sab Uddin have filed the appeal being Crl.A.(J) No.38 of 2018 and Md. Abdul Malik has filed the Crl.A.(J) No.28 of 2018. But the convict Md. Saleem Ahmed has not preferred any appeal against the judgment of conviction and the consequential order of sentence.

7. The state has filed one supplementary affidavit on 18.03.2019 in Crl.A.(J) No.28 of 2018 stating that the police could not apprehend the other four accused persons who were shown absconding in the final report, despite series