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Criminal Appeal No. 33 of 1956, decided on 17th February 1956.

(On appeal from the judgment and order of the High Court of Judicature at Dacca in East Bengal, dated the 4th July 1955 in Criminal Revision No. 129 of 1955).

---Ss. 406 & 420 Long delay in lodging complaint and disappearance of complainant at time of cross‑examination‑Conviction set aside.

Ashrafuddin Chowdhury, Senior Advocate Federal Court (Jane Alam, Advocate Federal Court with him) instructed by Abdul Hye, Attorney for Appellants.

A. F. M. Misbahuddin, Advocate Federal Court instructed by K. Hossain, Attorney for Respondent.

Date of hearing : 17th February 1956.

This appeal with our leave has been brought before us by the two appellants, Giasuddin and Muslim, from a judgment of the Dacca High Court passed under its revisional jurisdiction, whereby the conviction of the appellants under section 420, Penal Code was altered to one under section 406 of the same Code and the sentence of rigorous imprisonment for 6 months was reduced to rigorous imprisonment for three months.

The case for the prosecution was that the appellants who professed to be goldsmiths, went to the house of one Indu Bhushan Chakrabarty on the 15th of June 1952, where certain ornaments were given to them by P. W. 3, Binapani Debi, wife of Indu Bhushan Chakrabarty, for repairs; that on being satisfied with the work done, P. W 3, Binapani Debi, gave them her necklace weighing about 1 1/2 tolas for polishing and for re‑setting the locket; that on receiving the necklace the appellants melted it; besmeared it with tamarind and dipped it in a cup of water and asked Indu Bhushan Chakrabarty to let the lump remain in that cup till they returned the next day for finishing the work, but they never returned and subsequently it was discovered that what they had left with Indu Bhushan Chakrabarty was a lump of brass only and not gold. It appears, however, from the prosecution evidence in the case that though Indu Bhushan Chakrabarty bad become suspicious at the time of the melting of the necklace and had some time after that come to learn that the lump given to him by the appellants was really brass and not gold, he took no action in the matter till the 18th of September 1953, that is nearly sixteen months later when the first informa tion report was lodged by Indu Bushan Chakrabarty at the instance of Birendra Nath, a Police Officer, who happened to visit the village on the 25th of August 1953.

At the trial Indu Bhushan Chakarbarty gave evidence in his examination‑in‑chief in support of the prosecution but disappeared before he could be cross‑examined. Further no proof was given to the effect that the necklace given to the appellants was of gold, nor is there any satisfactory evidence that the lump (Exh. 1) was the lump to which the necklace had been converted. The long delay in lodging the complaint and this complainant's disappear ance at the time of the cross‑examination are also not without significance. We do not think that the evidence in the case is such as can sustain the conviction of the appellants. We allow the appeal, set aside the conviction and the sentence of the appellants and direct that the bail bonds furnished by them be cancelled.

Appeal accepted.

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