JUDGMENT A. Hazarika, J. 1. The Appellants are hereby assailing correctness, proprietary and legality of the order of conviction and sentences passed against them by the learned Session Judge, Halakandi in Sessions Case No. 59 of 1992 whereby the Appellants were convicted for committing the offence punishable under Section395 of the Indian Penal Code. The Appellants have been sentenced to undergo rigorous imprisonment for 6(six) years and to pay a fine of Rs.1000/- each, in default to suffer Rigorous imprisonment for another 6 (six) months. 2. The prosecution story in brief is that at about 12.30 P.M. on 5.8.1988 when R.B. Gupta, a clerk of Bandukmara Tea Estate was coming with Rs.32000/- in a Jeep from the head office of Narsingpur Tea Estate for labour payment, some 7/8 persons barricade the garden road by putting a log and the Jeep skidded off the road and went down the drain. Thereafter dacoity was committed with dacoits snatching the money bag and leaving the place of occurrence with the booty. The persons who were in the Jeep raised alarm and as a consequence thereof, the labourers of the Garden along with Assistant Manager who were working nearby in the garden reached to the spot. The information in regard to dacoity was passed over to the owner of the garden, who in turn gave a telephonic message to the in-Charge of Lala Police Station and a G.D. entry was made to this affect. The police proceeded to the spot and a written FIR was lodged by the Assistant Manager of the Garden detailing the occurrence. However, the miscreants were chased by the labourers who caught hold of some miscreants and recovered an amount of Rs.27000/- from a newly dug pit, an empty bag, a chappal and a dagger was found in the place of occurrence. The prosecution story further disclosed that a message was also given to Hailakandi Police Station and the police rushed to the spot since Bandukmara Tea Estate falls under the jurisdiction of Hailakandi Police Station. The record would reveal that initially charge-sheet was submitted against accused Rahimuddin Mazumdar, Nooruddin and Khaliluddin Mazumdar. 3. During the trial the learned Session Judge took cognizance under the provisions of Section 319 of the Code of Criminal procedure against the accused Suraj Ali and Jalaluddin and they were booked to stand trial. The record would reveal that initially charge-sheet was submitted against accused Rahimuddin Mazumdar, Nooruddin and Khaliluddin Mazumdar. 3. During the trial the learned Session Judge took cognizance under the provisions of Section 319 of the Code of Criminal procedure against the accused Suraj Ali and Jalaluddin and they were booked to stand trial. However, Jalaluddin was declared absconder vide order dated 22.4.96 and the bailor had to pay the bail money in Misc. case No. 29/96 initiated against the bailor. 4. Therefore the accused Rahimuddin Mazumdar (A1), Nooruddin (A2), Khaliluddin Mazudar (A3) and Suraj Ali (A4), were charge-sheeted under Section 395 IPC to which they pleaded not guilty. The case was committed to the Court of Sessions and thus, the accused had to stand for trial. 5. The prosecution has examined as many as 7(seven) witnesses including the Investigating Officer. P.W. 1 Kumbha Kama Ghoor was the driver of the Jeep when the occurrence took place. He has stated that on the fateful day the money was taken by P.W.5 Ranabijoy Gupta from Narshingpur Office of the Narsingpur Garden to its Bandukmara out garden for labour payment. The amount they had in the Jeep was Rs.32,000/- and when the Jeep arrived at Section 3 at about 12.30 P.M. two persons placed a log over the garden road. He tried to back the Jeep in order to proceed through other road but its rear wheel fell in the drain. In the meantime 4/5 persons came and joined with those two persons and gheraoed (surrounded) the Jeep and snatched the money bag and escaped from the place of occurrence. He could not recognize/identify any of the miscreants and on raising alarm 2/3 miscreants were caught hold of. Admittedly he could not recognize any one of the miscreants even in the dock. Therefore, his evidence does not help the prosecution in establishing the guilt of the accused. 6. P.W. 2 Bodh Ram Rea has deposed that on the date of occurrence he was working alongwith 50/60 workers of Bandukmara Tea Estate. Hearing the alarm they rushed to the spot and found that two persons while fleeing away were caught hold of and they were accused Khalil Ahmed (A3) and Rahimuddin (A1). He identified them in the dock. They were brought back to the place of occurrence where the Jeep was slanting to the drain. They also got one Sujal Babu and Manager. He identified them in the dock. They were brought back to the place of occurrence where the Jeep was slanting to the drain. They also got one Sujal Babu and Manager. They proceeded towards the direction where the accused were caught hold of and found the abandoned bag and certain amount was unearthed from a pit near a tree. The pit was found filled up with new earth. These two persons were handed over to the police and they were examined by the police. In cross-examination he has deposed that the money was recovered in Section 7 about a mile away from the place of occurrence. They were working in Section 8. The persons who were caught hold of said nothing. The distance between the place of occurrence and the place where they caught hold of Khalil and Rahim was about one mile. They found P.W. 1 at that place. He could not say the recovered amount and at the time of recovery he along with other 6/7 co-workers including Sajal and Shayamal Bhattacharjee were present at that place. Sajal Babu removed the earth and recovered the money. P.W. 1 was present at the time of recovery of the amount. He denied that he was not a participant in catching hold of Khalil and Rahim. On recall in his cross-examination he said that the distance between the place of recovery of the amount and the place of apprehending the accused was about 40/50 nals and the place of occurrence was about 100 nals away to the south east of Hailakandi Silchar P.W.D. Road. The place was a plain area planted with tea bushes. He denied that accused Khalil and Rahim were apprehended while they were grazing cattle. 7. The prosecution has examined Latif Mia as P.W. 3. He deposed that the occurrence took place at about 1.00 P.M. about 8/9 years back. He was working in the nursery of Section 8 of Bandukmara Tea Estate, suddenly he heard cry and on hearing the cry he along with 15/16 workers rushed to the place of occurrence. It was a place of Narsingpur T.E. and they got a Jeep in a slanting position to the drain of the garden road. They met P.W. 1 and P.W. 5 at the place of occurrence. Thereafter they rushed to the direction towards where the miscreants were reported to flee. They caught hold of two persons. It was a place of Narsingpur T.E. and they got a Jeep in a slanting position to the drain of the garden road. They met P.W. 1 and P.W. 5 at the place of occurrence. Thereafter they rushed to the direction towards where the miscreants were reported to flee. They caught hold of two persons. He could not identify the miscreants. Thereafter other persons were also caught hold of. An abandoned bag was found in a hilly side and certain amount was also recovered from a pit. He could not say about the amount recovered. Police visited the spot and had examined him. In the Test Identification Parade (in short TIP), he identified one person but due to long lapse of time at the time of trial he could not remember his name. In cross-examination he has stated that the distance between the place of occurrence and Section 8of Bandukmara Tea Estate was about 40/50 nals and Section 8 was towards south of Bandukmara Tea Estate. He found P.W. 2 at that place. The distance between the place of occurrence and the office of Narsingpur garden was about one and half miles and the money was recovered from a place about 30/35 nals from the place of occurrence towards north. 8. P.W. 4 Saiful Bibi had deposed that about 7/8 year ago she along with others was plucking leaf in Section 7 of the garden. They heard that a dacoity was being committed. They found that two persons were running through a drain of the garden saying that they were cutting grass. But she could not identify them in the time of trial. 9. The prosecution has examined Ranabijoy Gupta as P.W. 5 who had stated that the date of occurrence was in the month of August in a Friday in 1988. He along with driver Kumbhakarna and three other ailing women and dresser Gopesh went to Narsingpur Head Office for taking labour payment. The women went there for checking up and were returning with them in the Jeep. While they were coming with the money at about 12.30 P.M. on garden road, he found 8/10 people suddenly placed a log over the road and obstructed the Jeep. He immediately directed the driver to back the vehicle in order to enable them to go though another path which is about 2/3 nals away. While they were coming with the money at about 12.30 P.M. on garden road, he found 8/10 people suddenly placed a log over the road and obstructed the Jeep. He immediately directed the driver to back the vehicle in order to enable them to go though another path which is about 2/3 nals away. But the vehicle skidded off, slanting in the drain. Those miscreants demanded the money and out of fear he asked them not to beat them and the miscreants took away the money. While the miscreants on way to tilla, they raised a hue and cry. On hearing the cry Assistant Manager Shyamal Bhattacharjee and other garden labourers who were on the site gheraoed the tilla By chasing they caught hold of some miscreants who were moving down from the tilla and he identified them in the dock. Another person who was also caught hold of but found absent in the dock. Being accompanied by other labourers they moved to the tilla and somewhere they found the empty bag containing that money. Near the empty bag they also found a new earth cutting pit wherefrom Rs.27,000/- was recovered out of Rs.32,000/-. The amount was seize by the police and subsequently released by the Court since it was meant for labour payment. Ext. 1 is that seizure list and Ext. 1 (1) is his signature. By this exhibit a rubber chappal, one dagger and the empty bag were also seized. Material Ext. 1 is that bag. Material Exhibits-2 and 3 are Sandal and dagger respectively. Vide Ext-2 the aforesaid Jeep and the logs were seized. Ext. 2 (1) is his signature. The information of the incident was given to Lala Police Station and Hailakandi Police Station over phone and in pursuance thereof a written complaint was lodged by Asstt. Manager Shyamal Bhattacharjee vide Ext. 3 and Ext. 3(1) is his signature which he knew. On receipt of the telephonic message the police staff went to the spot both from Hailakandi and Lala Police Station and the accused were caught hold of by the labourers and they were arrested. In course of identification he identified those accused. In cross-examination he had deposed that the main garden maintained the remittance book for giving any cash to them but the police did not seize either that cash book or the debit voucher which he signed. In course of identification he identified those accused. In cross-examination he had deposed that the main garden maintained the remittance book for giving any cash to them but the police did not seize either that cash book or the debit voucher which he signed. The distance between head office of Narsingpur T.E. and its branch Office at Bandukmara is about three kilometers. The obstruction was laid on the garden road of Narsingpur K-3 Section. He could identify the miscreants on being apprehended by the labourers. The accused did not inflict any injury on their persons, but they sustained injuries as a result of skidding off the Jeep. He could not say who took the money from him. Moreover about half an hour the money was recovered from a tilla situated in Section 7 Damcherra of Bandukmara Tea Estate and the distance of the place of occurrence was about 10/12 nals. The accused were caught hold of at the foot of the tilla and the PWD Road from that foot of tilla was about half kilometer towards west. The distance between the place of occurrence and PWD road was about half a mile and between the pit wherefrom the money was recovered and the place where the bag was found was about one nal. He denied that he did not take Rs.32,000/- from their head office at Narsingpur for labour payment and the local village people always damage the tea bushes by grazing cow for which out of grudge those miscreants were falsely implicated in the case. On recall in cross-examination he had deposed that after apprehending the accused they were brought down of the tilla and he found them there. After 6/7 days of arrest of the accused he also identified them in the TIP, but prior to the occurrence the accused were not know to him. Five persons were apprehended by the garden workers and he found them who were also handed over to the police and put to the line of TIP when he could identify 2/3 persons. It was not possible to identify the accused when the offence was committed. He could not remember if any flood occurred some days before the date of occurrence. They prohibited grazing cattle by the outsiders in the garden. He denied that the accused persons were grazing cattle in the garden when they were apprehended. 10. It was not possible to identify the accused when the offence was committed. He could not remember if any flood occurred some days before the date of occurrence. They prohibited grazing cattle by the outsiders in the garden. He denied that the accused persons were grazing cattle in the garden when they were apprehended. 10. The Magistrate who held the identification parade was examined as P.W. 6 by the prosecution. P.W. 6 Anisul Alam held the identification parade after 17 days of the arrest. As many as 9 witnesses were produced by the Investigating Officer for identification of 7 suspects. The suspects were kept inside the jail and the witnesses were not allowed to have any glance over them prior to their call for identification. The witnesses were kept in the place beyond the sight of the suspects. The persons put in the line were of equal age and the witness was brought one after another and after one witness was called the line was reshuffled in case of every witness P.W. 5 Ranabijoy Gupta identified suspects Nooruddin (A2) and Rahimuddin (A1), P.W. 2 Bodhram identified suspects Khaliluddin (A3) and Rahimuddin (A1). Witnesses Gophesh Ghose, Latif Mia and Saiful Bibi identified Rahimuddin (A1) only. Witnesses Kumbhakarna Ghoor, Babulal Reem, Binod Rea and Ramendra Rea failed to identify any of the suspect Jailor S. Banerjee and Assistant Jailor H.R. Barbhuya were present at that time and they stood as witnesses in the identification. Ext. 4 is his report Ext. 4 (1) is his signature. His cross-examination was declined. 11. The I.O. was examined as P.W. 7 who had deposed that on receipt of telephonic message on 5.8.88 from one B.R. Tushnial, Properietor of Narsingpur T.E. that dacoity was committed on the way of his garden while the garden hundi amounting to Rs.32,000/- was taken from the main office for labour payment to the employees of Bandukmara. At that time the I.O. was attached to the Lala Police Station. He visited the spot along with other staff situated in Section 3 of Narsingpur T.E. The telephonic message so received, he made a G.D. entry which is marked as Ext. 5 and Ext. 5 (1) is his signature. In the place of occurrence he got a Jeep on the garden road and found Shri S. Bhattacharjee, Ranabijoy Gupta, Kumbhakarna along with other staffs of the garden. He seized the vehicle vide Ext. 2. 5 and Ext. 5 (1) is his signature. In the place of occurrence he got a Jeep on the garden road and found Shri S. Bhattacharjee, Ranabijoy Gupta, Kumbhakarna along with other staffs of the garden. He seized the vehicle vide Ext. 2. Ext. 2 (1) is his signature alongwith material. Exhibits-1,2 and 3. He received a written statement in regard to occurrence submitted by the Assistant Manager of Bandukmara Tea Estate at the spot and Ext. 3 is the statement which was endorsed by him and accordingly a case was registered. He also seized an amount of Rs.27,000/- being produced by Shri R.B. Gupta, a clerk of Bandukmara Tea Estate vide Ext-1 and Ext-1 (2) is his signature. He examined the witnesses who stated that a total amount of Rs.32,000/- was taken from the main office to Bandukmara Tea Estate for labour payment and on the way some miscreants snatched away the same. The witnesses stated before him that the money was recovered from Section 3 by chasing the miscreants. The accused resided within the jurisdiction of Hailakandi Police Station and the S.P. Hailakandi intervened in the matter. The accused were arrested by S.I. Shri S. Chetia of Hailakandi P.S. and accordingly they were produced. The miscreants were forwarded to the Court with a prayer for holding TIP was the same was held in jail campus. Shri S. Chetia was transferred and his successor Shri J. Upadhaya submitted the charge-sheet. In cross examination he had stated alongwith the copy of the charge-sheet no copy of G.D. entry was given. No accused was available during his stay at the place of occurrence. Although he visited the place where from the money was recovered but he did not note the nature and feature of the place, the distance between the place where he got the Jeep and the place wherefrom the money was recovered. He also did not seize the account book of the garden by which the money was remitted. Ranabijoy told him that the accused beat the driver Kumbhakama and inflicted injuries on his body but he did not send him for medical treatment. Bodhram said that some miscreants were produced before the garden Manager and police but he did not say the name of the miscreants. 12. Before opening the arguments on behalf of the Appellants Shri H.R.A. Choudhury Sr. counsel assisted by Mr. Bodhram said that some miscreants were produced before the garden Manager and police but he did not say the name of the miscreants. 12. Before opening the arguments on behalf of the Appellants Shri H.R.A. Choudhury Sr. counsel assisted by Mr. K.A. Majumdar, Advocate has drawn the attention of the Court to a passage from the judgment passed by the learned Sessions Judge, Hailakandi which is quoted hereunder viz.; I do not give any importance of identification by holding TIP, but I have no reason to discard the evidence of P.W. 2 for identification of accused Khaliluddin and Rahimuddin in the dock as well as the identification of all the accused in the dock under the facts and circumstances as received from the evidence on record and also by P.W. 5. Mr. Choudhury has argued that this passage has a bearing in deciding the case which he has urged to refer the matter at the subsequent stage. 13. Mr. H.R.A. Choudhury, Sr. Counsel has argued that the conviction of the Appellants rests on the testimony of P.W. 2, P.W. 5 and on the basis of identification held in TIP. A close scrutiny would reveal that there are contradictions and discrepancies of the prosecution witnesses and on the basis of such contradictions the convictions cannot be upheld. He led this Court through the evidences of all these witnesses more particularly P.W. 2 and P.W. 5. The evidence of P.W. 5 would show that 8/10 people suddenly placed a log over the road and obstructed the road and the miscreants demanded the money to which P.W. 5 had complied with and the miscreants left towards west through tea bushes in a tilla and they raised alarm. Thereafter on hearing the alarm the Assistant Manager and other garden labourers who were working on the site about a furlong away gheraoed the tilla. By chasing, they caught hold of some culprits who were moving down from the tilla and he identified them in the dock. Being accompanied by other labourers they moved to the tilla and found the empty bag. They also found a new earth cutting pit wherefrom Rs.27,000/- was recovered out of that Rs.32,000/-. In cross-examinations he has stated that he could identify them whereas in the identification parade he identified suspect Nooruddin and Rahimuddin only. Therefore the story of the prosecution lacks confidence of the Court in convicting the accused persons. They also found a new earth cutting pit wherefrom Rs.27,000/- was recovered out of that Rs.32,000/-. In cross-examinations he has stated that he could identify them whereas in the identification parade he identified suspect Nooruddin and Rahimuddin only. Therefore the story of the prosecution lacks confidence of the Court in convicting the accused persons. 14. In regard to the witness, Shri Bodh Ram Rea, P.W. 2, the learned Counsel argued that at the time of occurrence he was working in the vicinity along with 50/60 co-workers. On hearing the ciy they rushed to the spot and found two persons fleeing away who were caught hold of and they were accused Khaliluddin and Rahimuddin as he identified in the dock. After catching hold of them, they were brought to the place of occurrence. Thereafter they proceeded towards the direction where the miscreants fled away and certain amount was unearthed from a pit near a tree. The pit was found to be filled up with new earth. He has further stated that Sajal Babu removed the earth and recovered the money. P.W. 1 also accompanied at the time of recovery. Whereas P.W. 1 Kumbhakarna has stated that certain amount was unearthed from a pit but he did not visit that place. Therefore the irresistible conclusion would be that the evidences of P.W. 2, P.W. 5 and P.W. 1 are contradictory and on such contradictions on vital material points the conviction cannot be sustained. 15. Another glaring contradictions in the evidence of P.W. 5 and P.W. 2 is that the labourers gheraoed entire tilla in order to catch hold of the miscreants. According to P.W. 5 the miscreants were 7/8 in numbers but in fact, some miscreants were caught hold of and they were brought before the police. But the said witness had identified only two miscreants viz., Nooruddin and Rahimuddin. There the prosecution has miserably failed to establish the guilt of the accused beyond reasonable doubt and on that ground conviction is liable to be set aside. 16. Admittedly an amount of Rs.27,000/- was recovered in Section 3 from a tilla filled up with raw earth and Sajal Babu removed the earth and recovered the amount. The prosecution has failed to examine him in order to establish the factum of recovery. The miscreants were brought to the place of occurrence and they were handed over to the police. Admittedly an amount of Rs.27,000/- was recovered in Section 3 from a tilla filled up with raw earth and Sajal Babu removed the earth and recovered the amount. The prosecution has failed to examine him in order to establish the factum of recovery. The miscreants were brought to the place of occurrence and they were handed over to the police. The factum of recovery was not led at the instances of miscreants and when the miscreants were apprehended there is no explanation in regard to the remaining amount of Rs.5000/-. The prosecution has failed to examine Shri B.R. Tushnial, manager of the garden, Shri Shyamal Bhattacharjee, Sajal Babu, the ailing women who had accompanied them when the money was brought in the Jeep from Narsingpur T.E., G.D. entry was not given along with the charge sheet, the police has failed to seize the remittance book for giving any cash to them, the cash book and the credit voucher. Therefore there is a flaw in conducting the case by the prosecution and on the basis of such lacuna the Appellants cannot be convicted in the facts and circumstances of the case. 17. The prosecution story and the suggestion made during the trial was that there was flood and as a result the accused went to the garden with their cattle for grazing. The suggestions so made were denied by P.W. 5. But P.W. 4 Saiful Bibi stated that two persons were running through a drain of the garden saying that they were cutting the grass which would belie the story put forward by P.W. 2 and P.W. 5. On such contradiction the conviction and sentences cannot be upheld and the accused are entitled to get the benefit of doubt. 18. That the place of occurrence was within the jurisdiction of Narsingpur T.E., whereas the money was recovered in a tilla within the jurisdiction of Bandukmara T.E. The prosecution witnesses made contradictory statements in respect of place from where the money was recovered and at whose instance P.W. 1 has deposed that money was recovered in Section 3. P.W. 2 has said that the money was recovered somewhere in Section 7 which is about 1 mile away from the place of occurrence. P.W. 3 has said that money was recovered at a distance of 30/35 nail from the place of occurrence towards north. P.W. 2 has said that the money was recovered somewhere in Section 7 which is about 1 mile away from the place of occurrence. P.W. 3 has said that money was recovered at a distance of 30/35 nail from the place of occurrence towards north. P.W. 5 has said that after an hour the money was recovered from tilla situated in Section-7. P.W. 7 has said that the witnesses told him that the money was recovered from the jungle of Section-3. Therefore there exists inconsistencies and contradictions in respect of material facts which render the prosecution case unreliable and unbelievable and hence the conviction and sentences cannot be sustained. 19. The learned Counsel argued that the conviction of the Appellants on the basis of identification held in the TIP cannot be sustained because of delay in holding the parade and for violating the rules prescribed thereunder. In support of his contentions he has referred the following decisions: viz; I) (1995) Supp. (4) SCC 448 (Shatrughana and Ors. v. State of Orissa) II) (1996) 2 GLT 368 (Md. Abdul Nur v. State of Assam) III) AIR 1992 SC 1032 (Puttan @ Kamal Prasad v. State of U.P. IV) AIR 1994 SC 739 (Brij Mohan and Ors. v. State of Rajasthan) V) (1996) 3 GLT 103 (State of Assam v. Gunaram Tati and Ors.) VI) AIR 1991 SC 1938 (State of Andhra Pradesh v. Dr. M.V. Raman Reddy and Ors.) VII) (1998) 1 GLT 35(O. Kullabi Singh v. State of Manipur) VIII) (2002) 7 SCC 317 (Ashish Batham v. State of M.P.) 20. This Court heard in length in regard to flaw in holding the TIP for identification of the accused and the material contradictions of the prosecution witnesses while criticizing the judgment rendered by the learned Sessions Judge and the argument advanced by the public prosecutor, Government of Assam. The cases reported in (1995) Supp. (4) SCC 448: (1996) 2 GLT 368: AIR 1991 SC 1938 , relates to Test identification parade and its values. While dealing with the cases by the Apex Court and this Court have held that if there is unexplained delay in holding the test identification parade, it would adversely affect the value of evidence of identification. (4) SCC 448: (1996) 2 GLT 368: AIR 1991 SC 1938 , relates to Test identification parade and its values. While dealing with the cases by the Apex Court and this Court have held that if there is unexplained delay in holding the test identification parade, it would adversely affect the value of evidence of identification. In the instant case, TIP was held after 17 days after arrest i.e. after the expiry of maximum permissible period (15 days) and there was nothing on record to show that while taking the accused to and producing them before the court the identity of the accused was not revealed and the witnesses had at no earlier stage revealed any special identifying features and therefore exclusive reliance could not be placed on such identification. Admittedly in the identification parade and the record would show that P.W. 5 has only identified Nooruddin and Rahimuddin, P.W. 2 has identified Khailuddin and Rahimuddin, P.W. 3 and P.W. 4 identified only Rahimuddin and whereas P.W. 1 has failed to identify any of the accused though they were apprehended by the labourers and brought to the place of occurrence and handed over to the police and therefore the conviction cannot be sustained exclusively on such identification. The identification of the accused persons has also been discarded by the learned Sessions Judge though the learned Sessions Judge relied on P.W. 2 and P.W. 5. After going through the record and the case referred to above, on the basis of identification held after the permissible period and the prosecution required to held the identification parade having not been followed and the prosecution having failed to satisfy the requirement for holding the test this Court is inclined to set aside the conviction and sentence. 21. The prosecution has failed to establish the circumstantial evidence and the chain of circumstances in proving the guilt of the accused persons. 21. The prosecution has failed to establish the circumstantial evidence and the chain of circumstances in proving the guilt of the accused persons. P.W. 1 did not recognize the accused persons, P.W. 2 recognized two persons Khailuddin and Rahimuddin whereas P.W. 5 identified two accused Nooruddin and Rahimuddin, whereas the prosecution version in that the entire tilla was gheraoed by the labourers and only some miscreants were apprehended and within half an hour the money was recovered amounting to Rs.27,000/- from a pit filled up with new mud and the person Shri Sajal Babu who recovered the amount has not been examined by the prosecution and the reason for withholding such evidence has not been explained. Shri B.R. Tushnial, the manager of the garden, Assistant Manager Shri Shyamal Bhattacharjee and the ailing women who were present in the Jeep were not examined, the Cash Book and the Remittance Book were not seized and the accused were not led to the discoveries of the booty arid therefore the prosecution had failed to prove the guilt of the accused beyond all reasonable doubt. Moreover the prosecution witness P.W. 4 has demolished the case when she deposed that two persons were running through a drain of the garden saying that they were cutting grass. The records would show that there are major contradictions in the material points by the prosecution which render the prosecution case unreliable and unbelievable which lends support in the case referred in (2003) 1 SCC 398 : Raghunah v. State of Haryana, (2003) 11 SCC 231 : Sadhu Ram v. State of Rajasthan and (2003) 6 SCC 270 : Amzad Ali v. State of Assam. Therefore this Court holds that the accused are enttled to get the benefit of doubt in the facts and circumstances of the case. 22. In the result the appeal is allowed. The conviction and sentences passed on 30.4.1997 by the learned Sessions Judge, Hailakandi in Sessions Case No. 59 of 1992 against the accused Under Section 395 of the IPC are set aside and quashed. If any of the accused is in custody, he shall be released forthwith and if they are on bail they shall not surrender their bailbonds. Appeal allowed.