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2015 DIGILAW 856 (CAL)

Md. Tahur v. State of West Bengal

2015-10-06

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2015
JUDGMENT : Md. Mumtaz Khan, J. This appeal has been preferred against the judgment, order of conviction and sentence dated April 23, 2014 and April 24, 2014 respectively passed in S.T. Case No. 55 of 2009 arising out of S.C. case No. 221 of 2009 by which the learned Additional Sessions Judge, Fast Track, 1st Court, Hooghly has convicted the appellants for commission of the offence punishable U/s 395/397 I.P.C. and sentenced them to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5000/- each in default to suffer simple imprisonment for one year for the offence U/s 395 IPC and to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 2500/- each in default to suffer simple imprisonment for six months for the offence U/s 397 IPC with a direction that both the sentences shall run concurrently and the period of detention undergone to be set off under the provisions of section 428 Cr.P.C. 2. The facts and circumstances giving rise to this appeal are : On April 17, 2009 P.W.2, Suraj Yadav, driver of lorry No. WML 2052 and P.W.4, Monoj Kr. Paswan, Khalasi of that lorry, loaded about eleven tons (11 tons 280 kgs.) of S.R.M.B. TMT bar from the godown of V.S. Ispat Company of Dugapur and proceeded towards Kolkata. On the way at about 2.30 hours (April 18, 2009) they halted for taking meal at R.K.T.C. Hotel. After taking meal they came back and when P.W.2 was about to start the lorry, suddenly six persons aged about 25 years taking dagger in their hands got into the said lorry from both sides and began to beat them and showing dagger asked P.W.2 to proceed towards Dankuni. P.W.4 managed to flee away by jumping from the lorry and went to the petrol pump which was on the other side of the road and requested them to make a phone call to the police station. Accordingly employee of the petrol pump made a call to the P.S. and gave P.W.4 the phone number of the P.S. P.W.4 also made a call to the P.S. with his mobile phone and informed the incident of hijacking the lorry loaded with TMT Bar and requested the P.S. to take action immediately. Accordingly employee of the petrol pump made a call to the P.S. and gave P.W.4 the phone number of the P.S. P.W.4 also made a call to the P.S. with his mobile phone and informed the incident of hijacking the lorry loaded with TMT Bar and requested the P.S. to take action immediately. Thereafter, on the same day P.W.4 went to the Dadpur P.S. and made verbal complaint there which was reduced into writing by P.W.5. 3. On the basis of the above complaint a case was started at Dadpur P.S. against six unknown miscreants and the investigation ensued and on completion of investigation charge sheet was submitted against the appellants U/s 395/397/412 IPC. Charges were framed U/s 395/397/412 IPC against the appellants on August 31, 2009 and when they pleaded not guilty to their involvement in the crime they were put to trial. Prosecution examined 9 witnesses including the driver, khalasi of the vehicle in question, employee of the petrol pump, an employee of R.K.T.C. hotel, the police officers, doctor and the I.O. and also produced and proved the FIR, seizure lists, rough sketch map with index, injury reports etc. (Exts. 1 to 8) and one money bag, driving license, notebook, one knife, two mobile phones, currency notes etc. (Mat. Exts. I to III). Thereafter, on completion of trial and after examination of the appellants U/s 313 Cr.P.C. learned court below passed the impugned judgment. 4. Being aggrieved by and dissatisfied with the aforesaid judgment, appellants have preferred the instant appeal and the ground raised in the instant appeal is that the Ld. Court below did not consider the facts and circumstances of the case and the evidence and documents on record in its proper perspective and made a wrong approach to the whole case and have, therefore, prayed for setting aside the impugned judgment, order of conviction and sentence. 5. Learned Advocate appearing on behalf of the appellants submitted that the impugned judgment, order of conviction and sentence passed by the Ld. Court below are liable to set aside for the following reasons : - 1. P.W.4, the defacto complainant had stated in the complaint that six persons committed dacoity by hijacking their truck but during his examination before the court he had stated that three or four miscreants committed that offence. Court below are liable to set aside for the following reasons : - 1. P.W.4, the defacto complainant had stated in the complaint that six persons committed dacoity by hijacking their truck but during his examination before the court he had stated that three or four miscreants committed that offence. P.W.4, according to P.W.1, had also told him that four or five persons committed dacoity whereas according to P.W.2, the driver of the lorry, six miscreants committed dacoity. P.W.4 had stated in the complaint that he would be able to identify the miscreants but he did not identify any of the appellants present before court to be the miscreants who committed dacoity and even declared that he had not seen them. 2. P.W.2, the driver had deposed that after taking their meal he and P.W.4, Khalasi, went back to the cabin of the truck and slept there for a while. Whereas P.W.4 had deposed that the offence of dacoity was committed as soon as they entered into the truck after taking their meal at the hotel. 3. P.W.2, P.W.5 and P.W.9 had deposed that three miscreants were apprehended from the first truck and three miscreants were arrested from the second truck. P.W.2 also deposed that when he reached the first truck being WML 2052, along with the police three miscreants were found sleeping in the truck but according to P.W.6,the then S.I. of police of Chanditala P.S. all the six miscreants were found loitering adjacent to the second truck and they were instantly apprehended therefrom. 4. P.W.4 had alleged in the complaint that the miscreants armed with dagger in their hands attacked them though during examination before court he remained conspicuously silent about use of any weapon whereas, according to P.W.2, the driver, miscreants had knife by which they gave him blows. P.W.6 had also referred to the recovery of knife from the appellants but according to P.W.7, the doctor, P.W.2 told him that he sustained injuries by sword. 5. P.W.2 had deposed that all the seizures were made in one sitting at the same place but not a single independent witness was procured during the process of search and seizure and even the seized articles did not bear any seal and label. Even none of the witnesses could single out as to what article was seized from which appellant. P.W.2 had deposed that all the seizures were made in one sitting at the same place but not a single independent witness was procured during the process of search and seizure and even the seized articles did not bear any seal and label. Even none of the witnesses could single out as to what article was seized from which appellant. The seized truck was also not produced before the court for identification by the witnesses. 6. FIR had not been properly proved as the maker of the FIR, P.W.4, had clearly admitted in his examination in chief that he merely signed there in Hindi and the contents of the FIR was not read over and explained to him whereas according to P.W.5 contents of the FIR was read over and explained to him. The written complaint shows the signature of the complainant in English on the front page and both in Hindi and English on the back page though the signature appearing in English had not been proved. 7. There had been defect in framing of charge. As per the FIR incident in question took place at 2.30 a.m. whereas charge had been framed for the commission of offence at 03.45 hours. There was no whisper in the charge form about the commission of any dacoity in a truck nor there was any whisper about recovery of another truck bearing No. WB 23-8876, mobile phones, knife etc. as figure in the seizure list. 6. According to the learned Advocate for the appellants learned Court below did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment and order of conviction and sentence. 7. Reliance is placed by the learned Advocate for the appellants on the decisions of Sunil Kumar Shamdhudayal Gupta (Dr.) and others v. State of Maharashtra, reported in (2011) 2 SCC (Cri) 375 : (2010) 13 SCC 657 , A Shankar v. State of Karnataka, reported in (2011) 2 SCC (Cri) 915 : (2011) 6 SCC 279 , State of Rajasthan v. Rajendra Singh, reported in 1998 SCC (Cri) 1605, Anil Kumar v. State of Punjab, reported in (2000) 9 SCC 455 , Vimal Suresh Kamble v. Charuverapinake Apal S.P. and Anr., reported in (2003) 3 SCC 175 , Hasina Bewa and Anr. v. The State of West Bengal (Unreported); C.R.A. No. 729 of 2008, Sou. v. The State of West Bengal (Unreported); C.R.A. No. 729 of 2008, Sou. Vijay @ Baby v. State of Maharashtra, reported in (2003) 8 SCC 296 , Mahabir Singh v. State of Haryana, reported in (2001) 7 SCC 148 , Mohammed Ankoos and others. v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, reported in (2010) 1 SCC 94 , Mamfru Chowdhury and others v. King Emperor, reported in AIR 1924 Calcutta 323. 8. Learned Advocate representing the state submitted that the instant case relates to the hijacking of a loaded truck in a highway and involvement of three police stations namely Singur, Chanditala, and Dadpur P.S. in apprehension of the miscreants and recovery of the looted truck. According to him all the three police stations were alerted over the incident of dacoity of loaded track and police personnel from those police stations also came and search started and P.W.2, victim driver, was rescued and thereafter on his identification that truck loaded with TMT Bar was located and three miscreants were apprehended therefrom. Those miscreants during interrogation then disclosed about the other miscreants who were also apprehended from another truck and looted articles were recovered from their possession. 9. Learned advocate representing the state also submitted that the evidence of the P.W.2, the driver had been corroborated by P.W. 4, the cleaner of the truck as well as by P.W.1, hotel employee while P.W.6 and P.W.8 proved the seizure of the truck and other articles from the possession of the appellants which had also been duly corroborated by P.W.9, the I.O. According to the learned advocate representing the state, P.W.2 has been able to prove the charges against all the appellants which is sufficient to convict the appellants and the discrepancies as pointed out by the appellants did not affect the merit of the case of the prosecution. 10. According to learned advocate representing the state mere error, omission or irregularity in the charge will not make the order of conviction and sentence to be invalid unless failure of justice has occurred on that ground and that defense has to show that they have been prejudiced which they have failed. 11. 10. According to learned advocate representing the state mere error, omission or irregularity in the charge will not make the order of conviction and sentence to be invalid unless failure of justice has occurred on that ground and that defense has to show that they have been prejudiced which they have failed. 11. According to learned advocate representing the state prosecution had been able to prove the case and the learned court below was justified in holding the appellants guilty of the offence punishable under Section 395/397 IPC and convicted them and the same does not require any interference in this appeal. 12. Reliance is placed by the learned advocate representing the state on the decisions of Kunjumon @ Unni v. State of Kerala, reported in 2012(13) SCC 750, State Rep. by Inspector of Police v. Saravanan, reported in 2010(4) SCC (Cri) 580, State of U.P. v. M.K. Anthony, reported in 1985 SCC (Cri) 105, Alamgir v. State, reported in 2003 SCC (Cri) 165, Mohan Singh v. State of Bihar, reported in 2011(9) SCC 272 , Mahavir Singh v. State of Haryana, reported in 2014(6) SCC 716 , Paulmeli v. State of Tamil Nadu, reported in 2014(13) SCC 90 , Shyamal Ghosh v. State of West Bengal, reported in 2012(3) SCC (Cri) 685. 13. We have given our thoughtful consideration to the submissions of the learned counsel appearing for the respected parties and gone through the evidence of the prosecution witnesses and other materials on record for examining the propriety of the impugned judgment, order of conviction and sentence passed by the learned court below. 14. Learned court below took into consideration the evidence of P.W.2, the driver, P.W.4, the khalasi of the truck in question, P.W.5, the then officer-in-charge of Dadpur P.S., P.W.6, the then sub-inspector of police of Chanditala P.S., and P.W.9, the I.O. to arrive at a conclusion that the appellants being armed with knife committed dacoity of the truck WML 2052 loaded with TMT bar and attacked the driver causing injuries on his person and the said truck along with the TMT bar was subsequently recovered from their possession. 15. Now with regard to the submission of the learned advocate for the appellants that there is a defect in framing of charges, we find that charges against the appellants were framed on August 31,2009 under section 395/397/412 of the Indian Penal Code. 15. Now with regard to the submission of the learned advocate for the appellants that there is a defect in framing of charges, we find that charges against the appellants were framed on August 31,2009 under section 395/397/412 of the Indian Penal Code. It is evident from the charges that commission of offence of dacoity by the appellants in the night of April 18, 2009 on Durgapur Expressway near R.K.T.C. Hotel armed with deadly weapons, to wit daggers and retaining and recovery of the stolen property, to wit truck bearing no. WML 2052 loaded with 11.280 tons of iron rods and other articles from them has been specifically mentioned therein. Charge is an accusation made against a person in respect of an offence alleged to have been committed by him and the basic requirement is that it must be so framed as to give the accused person a fairly reasonable idea of the case which he has to face. The mere irregularity in framing the charge against the accused, does not vitiate the trial, unless some prejudice is caused to the accused. Section 215 of the Code of Criminal Procedure clearly states that- "No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice". Section 464 of the Code of Criminal Procedure also provides that no finding, sentence or order by a competent Court shall be deemed to be invalid merely on the ground that no charge has been framed or that there are some errors, omission or irregularity in the charge unless some failure of justice has occurred on that ground. 16. In order to take the benefit of the same the accused must establish that failure of justice has been occasioned by an error or defect in stating the particulars in the charge. No such plea of any prejudice and/or any defect in framing of charge was taken by the appellants before the learned court below and even no evidence was adduced by them suggesting failure of justice due to defect in framing of charge. No such plea of any prejudice and/or any defect in framing of charge was taken by the appellants before the learned court below and even no evidence was adduced by them suggesting failure of justice due to defect in framing of charge. There is also nothing on record to show that any prejudice has been caused to the appellants due to such omission in mentioning details of recovery. On the other hand Ext.1/3 and 2/3, the seizure lists, in which signatures of the appellants appear clearly shows the details of recovery and seizure of looted truck in question loaded with TMT bar and other articles which means appellants were quite aware about the accusation made against them. Under such circumstances omission to mention about commission of dacoity in a truck and details of recovery etc. in the charge does not vitiate the trial. 17. In the decision of Sou. Vijaya @ Baby (supra) cited by the appellants, the point for consideration was fulfilment of essential ingredients of Section 201 of I.P.C. In our case the point for consideration was the alleged defect in framing the charge. The details of recovery of seized articles were not incorporated in charge framed against the appellants. Taking into consideration the admitted fact of signing the seizure lists (Exbt.- 1/3 and 2/3) by the appellants, we find that the above decision was not applicable in this case. 18. Now with regard to the question of contradictions and discrepancies in the oral and documentary evidences, it is well settled that there are bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. While minor discrepancy or variation in evidence will not make the prosecution case doubtful, contradiction in the statement of witness is fatal for the case. Reference may by made to the decision of State of Himachal Pradesh v. Raj & Anr., reported in (2000) 1 SCC 247 and the relevant portion of the same is quoted below:- "7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecutions case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Juagadish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors or memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person." (Emphasis supplied). 19. In the instant case, we find that P.W.4 has stated in the complaint that six persons committed dacoity by hijacking their truck and he would be able to identify them if he sees them but during examination before the court P.W.4 stated that only three/four miscreants committed the offence and he even failed to identify any of the appellants to be those miscreants. We also find that though the complaint/FIR has been marked as exhibit but the contents of the same have not been properly proved as the maker of the FIR, P.W.4, has clearly stated in his examination-in-chief itself that he merely signed there in Hindi and the contents of the complaint was not read over to him. He was not even declared hostile by the prosecution rather prosecution relied on his evidence. In addition to that, the complaint in question shows signature of Manoj Paswan, P.W.4, in English on the front page and both in Hindi and in English on the back page but the signatures appearing in English were not proved by P.W.4. According to the F.I.R., at 2.30 hrs. driver and khalasi halted their truck bearing no. WML 2052 at R.K.T.C. hotel for taking meal and after taking meal in the hotel they came back in the truck and when the driver was about to start the truck suddenly six persons armed with dagger got into the truck from both sides and began to beat them and showing dagger asked the driver to proceed towards Dankuni. P.W.4 has also deposed that dacoity was committed as soon as they entered into the truck after taking their meal whereas P.W.2, the driver has deposed that after taking their meal he and P.W.4, returned back to the cabin of the truck and took rest and in the process they slept and at about 3.30 a.m. six miscreants entered into the cabin and started assaulting P.W.4 and then he woke up. But P.W.4 has not stated about any assault on him. As per the F.I.R. Khalasi managed to flee away by jumping from the lorry and went to the petrol pump which was on the other side of the road and requested them to make a phone call to the police station and accordingly employee of the petrol pump made a call to the P.S. and gave him the phone number of the P.S. and he also made a call to the P.S. with his mobile phone and informed the incident but P.W.3, employee of the petrol pump has not supported the above claim of P.W.4. On the other hand P.W.1, employee of the R.K.T.C. Gupta hotel has claimed that on hearing the shouting of the cleaner of truck about miscreants fleeing with the lorry he rang Dadpur P.S. informing the incident though he has not stated the name of the cleaner of the lorry nor stated the number of the lorry in question and ultimately admitted that he did not see the incident and the miscreants. According to P.W.5, on April 14, 2009 at 3.45 hrs. duty officer A.S.I. Bipad Taran Babu received one telephonic information from P.W.4 through a mobile phone of a petrol pump and subsequently he was informed by duty officer and thereafter P.W.4 came to the P.S. and he received the F.I.R. at 05.05 hrs. and started this case. Interestingly A.S.I. Bipad Taran Babu was not examined by the prosecution. It appears from Ext.5, the F.I.R., that information was received at the P.S. at 03.45 hrs. and General Diary reference no. 831 was recorded at 05.05 hrs. but the GDE in question was not produced nor the purport of the information which was admittedly the first information to the P.S. about commission of a cognisable offence. P.W.4 had alleged in the complaint that the miscreants armed with dagger in their hands attacked them but during examination before court he had not stated about use of any dagger or any weapon. P.W.5, officer-in-charge Dadpur P.S., had claimed about recovery of one dagger from the possession of Tanvir Alam, appellant no. 6, though he failed to identify him before court whereas P.W.6, S.I. of Chanditala P.S., had claimed about recovery of a knife from the appellants. According to P.W.2, miscreants had knife by which they gave him blow but P.W.7 had deposed that P.W.2 told him that he sustained injuries by sword. Interestingly, P.W.2 did not say to P.W.9, the I.O., during investigation that miscreants assaulted him by knife. No such arm was produced for identification before P.W.5 nor the doctor was shown the said weapon. According to P.W.2, P.W.5 and P.W.9 three miscreants were apprehended from the first truck (WML 2052) and three miscreants were arrested from the second truck (WB 23-8876). P.W.5 had stated the name of the appellants to be the miscreants arrested on that date but on being asked to identify he identified only appellant no.3 and failed to identify other appellants on dock. P.W.5 had stated the name of the appellants to be the miscreants arrested on that date but on being asked to identify he identified only appellant no.3 and failed to identify other appellants on dock. But admittedly reported arrest of that appellant took place prior to arrival of P.W.5. P.W.2 had also deposed that when he reached the 2nd truck along with the police three miscreants were found sleeping in that truck but he had not stated which appellant was arrested from which truck. Admittedly, those miscreants were unknown to the victim. P.W.2 had clearly admitted that he was not called to identify the miscreants in the T.I. Parade. According to P.W.6, the then S.I. of police of Chanditala P.S., a member of the raiding party, all the six miscreants were found loitering adjacent to the second truck and they were instantly apprehended therefrom whereas according to P.W.8, S.I. of Singur P.S., another member of the raiding party, only three miscreants were apprehended from the first truck but he also failed to identify any of the appellants on dock to be the miscreants apprehended on that date. Even the arrest memos did not mention about the place of arrest of the appellants. P.W.6 had also narrated a different story of dashing of the truck WB 23-8876 namely the 2nd truck in question against Bara bridge and whispering of 3/4 persons at that place which had not been corroborated by any one. He even did not state to P.W.9, the I.O. whatever he stated before the court. According to P.W.2 all the seizures were made in one sitting at the same place. Seizure list, Ext.2/3 shows seizure of the truck WML 2052 with iron rod at 10.00 hrs. near Barabridge while seizure list, Ext.1/3 shows seizure of one another truck, some currency notes, driving license, money bag, note book, mobile phones, knife etc in between 11.30 hrs. to 12.20 hrs. at the opposite side of Barabridge 300 mts. away but not a single independent witness was made witness to the seizure in question nor there is any explanation to that effect. None of the witnesses nor even P.W.2, the victim, could single out as to what article was seized from which appellant. P.W.2 even did not specify or identify who among those miscreants gave him knife blows. away but not a single independent witness was made witness to the seizure in question nor there is any explanation to that effect. None of the witnesses nor even P.W.2, the victim, could single out as to what article was seized from which appellant. P.W.2 even did not specify or identify who among those miscreants gave him knife blows. P.W.9, I.O., has specifically stated that P.W.2 did not say to him during investigation that while he was sleeping miscreants attacked him entering into the cabin from two side windows and gave him knife blows for which he had to be treated at the hospital and/or that miscreants had thrown him out from a running truck near singur bridge and he cried and shouted for help and/or that three miscreants were found inside his truck and on interrogation they disclosed about other three miscreants in another truck about one mile ahead and police jeep took him and the three miscreants to verify their information and thereafter other three miscreants were found sleeping in a truck standing on the road side and thereafter they all came back to the place where his truck was standing and/or that he identified the miscreants in the lights available both in the hotel and petrol pump. All these put a question mark about the trustworthiness of the evidence of P.W.2. Furthermore, P.W.9, has admitted that he did not make any seal and label of the seized articles. The seized truck was also not produced before the court for identification by the witnesses. All these makes the search and seizure doubtful. P.W.9, I.O. has claimed that he returned the iron loaded truck to its owner as per direction of the court but admitted that he did not collect any document as to the ownership of the trucks nor perused any such document of ownership nor enquired about the ownership of the theft articles. He also admitted that at the time of release of those articles he did not take any photograph, although directed by the court. In our opinion the above contradictions are very fatal for the prosecution case which escaped the attention of the learned court below. 20. Learned court below completely overlooked the vital contradictions and was, therefore, in error in ignoring the above aspect of the matter. 21. In our opinion the above contradictions are very fatal for the prosecution case which escaped the attention of the learned court below. 20. Learned court below completely overlooked the vital contradictions and was, therefore, in error in ignoring the above aspect of the matter. 21. In the case in hand, thus, we find that the learned court below overlooked the contradictions in evidence adduced by the prosecution witnesses which were vital in nature. Therefore, the decisions of Kunjumon @ Unni (supra) and M.K. Anthony (supra) cited by the State respondents were not applicable in this appeal taking into consideration of the facts and circumstances incorporated in the above appeals. 22. Therefore, considering the entire facts and circumstances of the case together with the discussions and observations made herein above, we find failure on the part of the prosecution with regard to the proof of the contents of the FIR, a reasonable doubt about the search and seizure of truck and other articles in question from the possession of the appellants, vital contradictions in between the statements of the witnesses and also the FIR with regard to the number of miscreants involved, manner of commission of incident, time, place and manner of apprehension of the appellants, nature of weapon used, place of lodging FIR and withholding the GDE, the first information to the P.S. about the commission of offence. 23. In view of the distinguishable facts and circumstances involved in this case, the decisions of State Rep. by Inspector of Police (supra), Alamgir (supra), Mohan Singh (supra), Mahavir Singh (supra), Paulmeli & Anr. (supra) and Shyamal Ghosh (supra) do not help the prosecution case. 24. Accordingly, the judgment, order of conviction and sentence can not be sustained in law due to the failure on the part of the prosecution to prove the guilt of the appellants beyond all reasonable doubt. As such, the impugned judgment, order of conviction and sentence are quashed and set aside. 25. This appeal is allowed. The appellants are set at liberty from this case. 26. Copy of this judgment along with the lower court records be sent down to the trial court for information and taking appropriate steps. Debasish Kar Gupta, J. - I agree.