Baharul Islam, J.
1. This is an appeal against acquittal and is directed against the order of the Sessions Judge, Darrang, who acquitted the respondents of a conviction under Section 392 of the Penal Code. The respondents were convicted by the Additional District Magistrate (Judicial), Tezpur, under Section 392 and sentenced to rigorous imprisonment for one year each and to pay a fine of Rs. 50/- each, in default of payment of the fine, to suffer rigorous imprisonment for 15 days each.
2. The prosecution case was that on 10-9-69, P.W. I, Molan Saikia, was returning from the market at about 7-30 in the evening; he had a torch in his hand; on the way he was shelved by the respondents in a gunny bag; he was taken to a nearby place with ankle deep water and mud. At that time P.W. 2 arrived at the place. P.W. 2 was followed by P. Ws. 3 and 4, Then the respondents immediately left the place. P.W.I told the names of the respondents to them. The further prosecution case is that a first information report was lodged at the nearby Police Out Post, which was subsequently forwarded to the Behali Police Station.
3. The respondents pleaded not guilty to the charges.
4. The learned Additional District Magistrate (Judicial) convicted and sentenced the respondents as stated above. On appeal, the learned Sessions Judge acquitted the respondents as aforesaid.
5. Mr. A.M. Mazumdar, the learned Public Prosecutor appearing for the appellant submits that the learned Sessions Judge has committed errors of law and facts and as a result of the errors, the respondents have been acquitted. We would refer to the judgment of the learned Sessions Judge a little later.
6. In the instant case, P.W. I and P.W. 2 support the prosecution case. P. Ws.. 3 and 4 (who are brothers) also support the prosecution case to the extent that after hearing outcry they came to the place of occurrence and found P.W. I in a gunny bag smeared with mud. But, the following circumstances, stare at the face and belie the prosecution case. The circumstances are that, firstly, no signs of any violence or assault was found on the person of P.W. I; the evidence of P.W. I was that the three respondents forcibly put him into the gunny bag and threw him in the muddy place. This could not have been done without violence to the person of P.W. I. But in his evidence he does not speak of any pain or any violence having been caused to his person. On the contrary, the evidence is that he was sent to the Helem State Dispensary for treatment and was examined by the Doctor there. The doctor of the Helem State Dispensary has not been examined. P. Ws. 1, 2, 3 and 4 say that after P.W. I was dragged out from the muddy ground, he was given some heat with fire. This shows that he must have some bodily pain or must have felt cold and needed first aid. But, the fact that no treatment in the Helem State Dispensary has been proved renders the evidence of P. Ws. 1, 2, 3 and 4 unreliable.
7. Secondly, the gunny bag was seized by the police from the side of the road on which the occurrence is alleged to have taken place. There is no evidence to show that the gunny bag was soiled with mud. In the seizure list also it has been mentioned that the gunny bag seized was soiled with mud.
8. Thirdly, if the original purpose of the respondents was to put P.W. I into the gunny bag, certainly some ropes to tie the gunny bag with would have been necessary. But, no rope has been found. In this case the Investigating Officer also has not been examined; P.W. 7, who conducted the preliminary inquiry only has been examined in the case. In the circumstances referred, we find it difficult to place any reliance on the evidence of P. Ws. 1, 2, 3 and 4. We are inclined to disbelieve the prosecution case.
9. In the result, this appeal fails and is dismissed.
10. Before we part with the record, we like to revert to the judgment of the learned Sessions Judge. It is true that the learned Sessions fudge has committed serious errors of law. Although the learned Sessions Judge was examining the correctness or otherwise of the conviction under Section 392 I.P.C. he did not advert to and consider, the essential ingredients of Section, but took only irrelevant considerations into account Another finding of the learned Sessions Judge is that the facts and circumstances of the present case show that the original intention of the respondents might be to kill or to cause death of P.W. I, but his finding that the culprits if instead of killing him, robbed him of some articles, would commit no offence, is illegal. He has found it 'unimaginable' that 'for such petty things (a torch light and a watch together valued at Rs. 185/-) three persons would combine together and make such attempt'. This finding is also not untenable.
11. Be that as it may, an erroneous judgment will not be set aside by an appellate Court, if it has not resulted in an erroneous order resulting in miscarriage of justice or despite the errors, the Judgment has ended in a proper order.