Vasu Deo vs State of Madhya Pradesh

A.K. Shrivastava, J.

Feeling aggrieved by the judgment and conviction and order of sentence passed by the 1st Additional Sessions Judge, Chhindwara, the appellants have preferred these two appeals. Accused Vasudeo has filed Criminal Appeal No. 934/90 and Deshiram and others have filed Criminal Appeal No. 1023/1990. As both the appeals arise from the same judgment, they are being disposed of by this judgment.

The appellants No. 1 to 8 of Criminal Appeal No. 1023/1990 were charged under Sections 395 and 397, Indian Penal Code (Hereinafter referred to as IPC) and appellants No. 9 to 14 were charged u/s 412, IPC. Similarly, appellant Vasudeo of Criminal Appeal No. 934/1990 was also charged u/s 412, IPC. Learned trial Judge has convicted appellants No. 1 to 8 under Sections 395 and 397, IPC and have been ordered to sentence Rigorous Imprisonment for life, appellants No. 9 to 14 have been convicted u/s 412, IPC and similarly appellant Vasudeo of Criminal Appeal No. 934/90 has been convicted u/s 412, IPC and they have been directed to suffer Rigorous Imprisonment for ten years.

In brief the case of the prosecution is that in the night of 30/7/1985, complainant Ashok (P.W. 1) and his mother Mst. Kaminibai (P.W.13) were sleeping inside the house, at 12.30 a.m. somebody knocked the door as a result of which, when Ashok opened the door, four persons entered inside the house and said that they will seize the liquor. On being resisted by Ashok, these persons with the aid of axe, sticks and stones assaulted the mother of the complainant. These persons also looted gold and silver ornaments. At that juncture 7-8 persons armed with axe and lathies were standing outside his house and when complainant Ashok tried to come out from the house, one person pelted stone to him as a result of which his four teeth were broken and he sustained incised wound on his lip. Thereafter all these persons went to the house of his neighbour Kailash where Kailash and his mother were beaten and they also looted gold and silver ornaments, watch and two Amplifiers and when Vimlabai tried to refrain them she was also beaten. Thereafter miscreants entered inside the house of Bhagwan Dade and assaulted his wife Laxmibai, these persons also took away good and silver ornaments from the house of Bhagwan Dade. Thereafter these persons entered into the house of Ithhobazi and gave a ''Sabbal'' (iron) blow to him and also caused injuries to his son namely Manohar Rao and Ajab Rao, they also caused ''Marpeet'' to Gulab. From the house of Ithhobazi these persons looted ornaments and a torch.

After the incident had taken place, Ashok lodged First Information Report (Ex.P/1) on 30/7/1985 at 1.20 hours. On lodging the report, criminal law set in motion. The Investigation Officer sent injured persons for their medical examination, in which fractures were found on the person of Gulab and Laxman. In furtherance to his investigation, the Investigating Officer arrested accused persons namely Tilak, Dilip, Madhu, Ratiram, Deshiram and Jhanak and recorded their memorandums u/s 27 of the Indian Evidence Act. These memorandums are Ex.P/23 to P/28. By these memorandums facts were discovered that these persons handed over the looted ornaments to the ladies who are either their wives, sisters or mothers. These ladies are accused/appellants No. 9 to 14. The Investigating Officer also discovered the fact from these lady accused persons that they have sold the ornaments in a shop of a gold smith of Kamptee town. The memorandums of Section 27 of the Evidence Act of these lady accused persons are Ex.P/29 to P/34. All these memorandums Ex.P/23 to P/34 were recorded on 1/8/1985. Thereafter on 1/8/1985 it is said that ornaments which were found to be 16 in number, were brought by accused Vasudeo and handed over to Station Officer Incharge of Police Station Chhindwara Shri Tiwari. A list Ex.P/37 of these articles was prepared. In furtherance to his investigation, the Investigating Officer recorded memorandums u/s 27 of the Evidence Act of accused Raju and Dhimru and discovered the fact that two Amplifiers which were looted were underground. These memorandums are Ex.P/35 and P/36. These Amplifiers were recovered from Imlikheda.

After completing the investigation, a charge sheet was placed and accused persons were charged which we have mentioned hereinabove. The accused persons denied the accusation and pleaded false implication and thereafter they faced trial.

In order to proved the charges, prosecution examined as many as 21 witnesses and placed Ex.P/1 to P/41, the documents on record. In their defence, accused persons of Criminal Appeal No. 1023/1990 did not choose to examine any witness, however, accused Vasudeo in his defence, examined himself as D.W.1 and also examined Mst. Kamla Pille, Babu Rao and Ajab Rao as D.W.2 to D.W.4 respectively. Apart from certain other documents, he also submitted certified copy of Criminal Complaint No. 136/85. This complaint was filed by Vasudeo against S.D.A. Tiwari who is Investigating Officer of the present case and S.K. Mishra, Sub Inspector, who is also an associate along with the Investigating Officer u/s 387, 394, 448, 323, 342 read with Section 34 of IPC an u/s 147 of Bombay Police Act. Earlier to filing of this complaint accused Vasudeo lodged a complaint in writing (Ex.D/14) to Police Station Kamptee and when nothing was done by the police in pursuance to his said report, he filed complaint case in the Court of J.M.F.C. VII Court, Nagpur (Ex.D/13). In that case an application u/s 197 (2), Cr. P.C. was filed by I.O. Shri S.D.A. Tiwari and Sub Inspector Shri S.K. Mishra that they be discharged because whatever they did, was in discharge of their official duties. This application was rejected on 3/5.1986 by the Magistrate against which a revision petition before Sessions Judge, Nagpur (Criminal Revision No. 1358/1986) was filed by Shri S.D.A. Tiwari and Shri S.K. Misra but it was dismissed on 19/4/1988, certified copy of which is Ex.D/16. By taking the assistance of these documents and the defence witnesses examined by him, apart from his own testimony, the defence of accused Vasudeo is that two Police Inspectors along with some ladies came to his shop on 1/8/1985 and started beating him by lathi, he was hand-cuffed and similar treatment was done to his brother Ghanshyam. These two Inspectors were saying that the ladies who were with them, have sold ornaments to him and insisted to hand over those ornaments. According to accused Vasudeo, neither he had bought any ornament from these ladies nor he is acquainted with them. These two Inspectors carried him to Police Station Kamptee, where he was brutally beaten, thereafter Station Officer Incharge of Kamptee Police Station Shri Pathak arrived there and he asked Investigating Officer Shri Tiwari to give a receipt to Vasudeo of the articles which are seized from his shop and in this manner his signatures was obtained on Ex. P/37.

In a case u/s 395, IPC, if the accused persons are unknown to the victims, their identification and recovery of the articles from them plays a vital role, indeed the fate of a case would depend upon these two essential ingredients.

The factum of identification is a vital aspect for consideration in a case of dacoity by unknown miscreants. There should be a proper and convincing identification of the accused persons in order to connect them in the crime. Every instance of identification is required to be judged on the facts and circumstance of each case. The identification of the accused should be carefully scrutinised and the identification parade should be done with great care and caution. There should be sufficient evidence that the accused persons were not shown to the witnesses and if there is slightest doubt in respect to the identity of the accused persons or if they are shown to the witnesses, as a matter of course the benefit of reasonable doubt should be given in favor of the accused persons.

Thus, in the case of dacoity, identification parade is equally having an important role and the test identification parade should be arranged at earlier point of time because the delay in conducting the test identification parade, there is possibility of the leakage of identity of the accused persons.

In the present case, P.W.1 Ashok, P.W2 Laxmi Prasad, P.W.3 Manohar Rao, P.W.7 Mst Gayabai, P.W. Ajab Rao, P.W.10 Ithobazi, P.W.11 Kailash, P.W.13 Mst. Kamini Baii, P.W.14 Narayan and P.W. 15 Mst. Imla & Vimla are the victims of the incident. Out of these witnesses P.W.2 Laxmi Prasad has stated that he did not identify any person and P.W.15 Mst. Imla & Vimla Baii wife of Kailash did not take part in test identification parade. In Court she was unable to identify the accused persons, according to her the persons who intered in her house were healthy. Other witnesses, in their singular voice have stated that before going to take part in test identification parade to identify the accused persons, all accused persons were shown to them in police Station. If the accused persons were shown to the witnesses at the police station, there is no use of holding test identification parade and the test identification parade was nothing but a mere formality. The secrecy of the accused persons should have been maintained before holding the test identification parade.

In the case of Prahlad Singh Vs. State of Madhya Pradesh, , the Supreme Court while dealing the point of identification in para-6 held as under:

In view of the aforesaid evidence of the prosecutrix, in our opinion the learned Counsel for the appellant is wholly justified in making his submission that the substantive evidence of the prosecutrix in Court identifying the accused is absolutely of no relevance and is wholly unacceptable and no conviction can be based on the same.

In the case of Laxmipat Choraria and Others Vs. State of Maharashtra, , the Apex Court held that if a witness to the identification parade is to be relied upon, his ability to identify should be tested without showing accused to him. In this case, photographs of the accused persons were shown to the witness and in that situation, it was held by the Apex Court that the identification was worthless. The instant case is having on worst footing, because here all the accused persons were shown to the witnesses in the Police Station before identification parade took place and, therefore, it would be highly unsafe to place any credibility to the test identification parade. Similar view has been expressed in two decisions by this Court, in the case of Indar Singh Vs. State of M.P., 1997 (I) MPWN Note 57 and Harga Vs. State of M.P., 1998 (1) MPWN Note 16. In the present case the identity of the accused persons has not been established beyond doubt. Thus, on the aforesaid discussion, we have no hesitation in holding that the identification parade was worthless and is of no use and it would be highly dangerous to convict the appellants on the basis of this type of identification parade.

The next important question which we have to decide is the recovery of the articles from the accused on the basis of their memorandum recorded u/s 27 of the Indian Evidence Act. Before we deal with the point, we think it germane to discuss the law on the point chapter II of the Evidence Act relates to the "relevancy of facts". Relevant facts has been defined in Sections 3 and 5 of the Evidence Act. These sections declare that the evidence is to be given of relevant fact and of no others. Under this Chapter Sections 25, 26 and 27 relates to confession and discovery of facts. On conjoint reading of Sections 24, 25 and 17 it would reveal that indeed Section 27 is a proviso to Sections 25 and 26. It is well settled in law that a statement even by way of confession made to Police Officer in his custody is inadmissible in evidence but the discovery of facts is very much admissible in evidence against the accused. If the confession is leading to discovery and consequently, some articles are recovered, it would be a relevant piece of evidence and is admissible in evidence but the connecting link is that in consequence to the discovery of facts, there must be a recovery. The conditions necessary for the application of Section 27 are :-

(i) the facts of which the evidence is sought to be given, must be relevant to issue;

(ii) the facts must have been discovered in consequence of some information received from the accused;

(iii) the persons giving the information must be accused of the offence;

(iv) he must be in custody of a police Officer;

(v) the discovery of fact in consequence of information received from an accused in custody must be deposed to; and

(vi) there upon that portion only on the information which relates distinctly or strictly to the fact discovered can be proved.

If we analyse Section 27 of the Evidence Act that part by which fact is discovered and recovery is made in consequence to it, is (in) admissible and rest of it is inadmissible in evidence. In this context, we may profitably rely the decision of the Apex Court in the case of Mohmed Inayatullah Vs. The State of Maharashtra, . We may also add that for the applicability of Section 27, two conditions are pre-requisite namely;-

(i) the information must be such as has caused discovery of the fact;

(ii) the information "relates distinctly" to the fact discovered.

We may also place reliance to the decision of the Apex Court on the aforesaid preposition Earabhadrappa Vs. State of Karnataka, AIR 1983 SC 446.

In the present case on bare perusal of memorandums Ex.P/23 to Ex. P/28 recorded u/s 27 of the Evidence Act of accused/appellants No. 1 to 8 it would reveal that they disclosed the fact that the looted articles were handed over to the lady accused persons, but the articles were not recovered from them. On going through Ex. P/37 which is a seizure list, it is gathered that on being produced the looted articles of gold and silver ornaments referred to in the list, by accused Vasudeo they were received by the Investigating Officer Shri Tiwari. Lady accused/appellants No. 9 to 14, in their memorandums recorded u/s 27 of the Evidence Act, have stated that they have sold the ornaments to a gold smith of Kamptee. It is pertinent to mention that the name of the said gold simth and the locality of its shop has not been mentioned, nor there is any seizure of the articles showing that at the instance of these lady accused persons the looted articles were seized from accused Vasudeo, on the other hand, these articles were received by I.O. on their production by accused Vasudeo.

On the basis of peculiar facts and circumstances when the discovery of the fact was discovered from the appellants No. 1 to 8 but no recovery was made in pursuance to the discovery of that fact, according to us Section 27 of the Evidence Act has no applicability in the present case. Section 27 would be applicable only when there is a direct recovery of the property and then only it is admissible in evidence but where it has been stated by the accused that he handed over the property to some other and that person has stated that he/she handed over to another person, the statement of the accused persons have no direct bearing of the recovery of the property though it may have an indirect bearing in giving a clue to the police for a fresh starting point of investigation and, therefore, this type of evidence cannot be admitted in evidence (see AIR 1934 71 (Nagpur) .

The memorandum Ex.P/27 to Ex.P/34 recorded u/s 27 of the Evidence Act, according to us, has no sanctity in the eyes of law because the recovery was not made in consequence to the discovery of the facts. In the memorandum the name of gold smith i.e. accused Vasudeo has not been mentioned, similarly where the shop is situated has also not been mentioned. Simply it has been mentioned that these accused persons sold the articles to gold smith of Kamptee. At this juncture, it would be relevant to add that the articles were not seized at the instance of these ladies but they were produced by accused Vasudeo. In the case of State Vs. Balakdas, 1961 MPLJ Note 156, it was held by this Court that successive information about possession of crime weapons given to police by several persons and the weapon was recovered from last person; it that situation, it was held by this Court that information of each occasion not covered by Section 27 and the earlier informations are only clues for investigation and, therefore, Section 27 of the Evidence Act has no applicability in the present factual scenario. That apart, no where in the memorandums of Section 27, the signatures or thumb impressions of the accused persons were obtained. Though law does not require for obtaining the signatures and it is a rule of prudence only, but in absence of obtaining signature or thumb impression would definitely weaken the evidence of the prosecution and its credibility. In this regard it would be apposite to rely to the decision of the Apex Court in the case of Jackaran Singh Vs. State of Punjab, .

In the present case the significant situation is that no memorandum of Vasudeo u/s 27 of the Evidence Act was obtained in regard to the discovery of any fact of receiving the looted articles followed by recovery. In these state of affair, looking to the totality of the evidence, we can safely say that Section 27 of the Evidence Act has no applicability in the present case.

That apart, the test identification of the articles has also not been properly conducted and the modus operandi is not convincing. Ex.P/19 is the identification memo of articles. The identification of the articles was conducted on 8/8/1985 by P.W.2 V.G. Pandey. On going through the identification memo Ex. P/19, it is not clear that which of the articles were mixed. Heading of the column No. 5 is "Vastu Tatha Milane Ka Vivran" (articles and the description of the added article), in this column no where it has been mentioned that how much the similar articles were added. P.W.21 V.G. Pandey, though stated that he conducted the test identification parade and witness Mst. Gayabai, Mst. Kamini, Bhagwan and Ithobazi identified the articles but no where he has stated that which of the article was identified by whom. In para 4, he specifically stated that there were three ''Ikdani'' and which witness identified which ''Ikdani'' he cannot say. Mst. Gayabai and Mst. Kamini identified all three ''Ikdani'' and both of them said that these ornaments are of them. In these facts and circumstances, the identifications of the articles also becomes doubtful.

The Supreme Court in the case of Bharat Vs. State of M.P., , in para-11 held that the ornaments of common pattern not of any particular design but has commonly available in the market and worn by village ladies, such ornaments mixed with other ornaments purchased from market, the identification of the articles in that situation was not found to be proper. Similar is the view of this Court in the case of Reechchoo Vs. State of M.P., 1981 JLJ 183.

The Division Bench of this Court in the case of State of M.P. Vs. Sobhai and another, 1996 (2) Vidhi Bhasvar 122, has held that if the identification of accused is doubtful and the recovery of looted property is also suspicious, the consequence would be the accused persons charged under Sections 395 and 397, IPC would be acquitted. It the present case as we have disbelieved the identification of accused persons as well as the manner in which articles have been identified raises a serious doubt, therefore, the case of Sobhai (supra) is fully applicable in the present facts and circumstances of the case. The Division Bench of this Court in another case Nandram and others Vs. State of M.P., 1992 (2) Vidhi Bhasvar 233, while dealing with the identification of the seized articles held that the identification is not reliable for the reasons that they were already shown to the witnesses at Police Station. In the present case also there is evidence that the articles were shown to the witnesses and, therefore, the identification of the articles is of no use.

In the present case appellants No. 9 to 14 of Criminal Appeal No. 1023/ 1990 and appellant of Criminal Appeal No. 934/1990 have been convicted u/s 412, IPC. In order to prove charge under this section, prosecution must prove the following:

(i) that the property in question was stolen property;

(ii) the possession of such property was transferred by the commission of dacoity;

(iii) the accused received or retained such stolen property;

(iv) that, he did as dishonestly; and

(v) that, he knew and has reason to believe the circumstances in the possession of such property was transferred by the commission of dacoity.

Thus, it is for the prosecution to prove the above said essential ingredients by pacing cogent evidence. The onus of proof never passes to the accused. In the present case, there is no evidence of prosecution that the accused persons were knowing the articles were stolen property, since there is no valid identification in the eye of law, hence it cannot be said that appellants No. 1 to 8 committed dacoity and thereby obtained possession of these articles, similarly, there is no evidence that accused persons received or retained the articles knowing them to be stolen property or dishonestly retained them. There is no evidence that accused/appellants No. 9 to 14 of Criminal Appeal No. 1023/1990 and accused Vasudeo of Criminal Appeal No. 934/1990 were knowing that the articles which were transferred to them are the out come of the commission of dacoity. A charge under this section cannot be said to be proved merely by proving knowledge or belief that the articles were stolen articles. It must further be proved that the accused have knowledge or belief that the possession of the articles had been transferred by the commission of dacoity. Requirement of law cannot take place of ''proof'' by presumption, conjuctures, surmises or even by adducing evidence merely showing that the accused persons had reason to suspect the articles to have been removed by dacoity.

The Investigating Officer, P.W.20 S.D.A. Tiwari, does not say in his evidence that the lady accused persons or accused Vasudeo did receive the stolen property dishonestly or it was known to them that the articles have been removed by dacoity. The evidence of Investigating Officer is that the lady accused persons told him that they had sold the looted articles at Kamptee. The Investigating Officer did not even say in his testimony that Vasudeo purchased these articles knowing them to be the stolen property and retained them dishonestly. The Investigating Officer did not try to collect the evidence that what was the actual price of each article and they were sold for quite lesser value in order to show that impliedly Vasudeo was knowing that these articles are stolen property and he purchased it for quite lower value. There is no evidence that he dishonestly retained the possession of the ornaments. In order to prove the dishonest intention in retaining the stolen property, there should be sufficient material before convicting a person to be guilty of Section 412, IPC. A very important fact which cannot be marginalised and blinked away is that the articles, according to prosecution''s own case, were not seized from the shop of Vasudeo but they were received on the production of the accused Vasudeo.

The defence of accused Vasudeo cannot be said to be flimsy that being a gold smith, he prepared the ornaments in pursuance to the order placed by his customers. Appellant Vasudeo is a recognised gold smith and a certificate of his recognition has been placed on record as Ex.D/9. He has also submitted Stock Account of Certified Gold Smith which is Ex.D/17. Apart from the stock account which has been verified by the department of Central Excise, accused Vasudeo examined himself and has stated that the articles mentioned in Ex.P/37 were taken out by Investigating Officer Shri S.D.A. Tiwari from the desk of his shop. Articles "J and K" are the chains which are of Kamlabai Pille, according to him, both these chains were given by her to prepare a Necklace. A relevant entry in this regard is in stock register Ex.D/17. Similarly, article ''Ikdani'' is of one Kaduji and there is description of this article in Ex.D/17. Similarly, two ''Ikdani'' are of Ajab Rao which has been endorsed at Item No. 395 in the register. One Babu Rao gave a ring to prepare two set of tops, the relevant entry of which is at item No. 396 of the stock register. Similary, Babu Rao gava ''Nathani'' (Article ''H'') and directed to prepare similar type of ''Nathani'' as Article ''S'' is Article ''S'' Nathani'' is of his own which was kept as a sample. Similarly Nathani (article ''U'') is also of his own and was kept as sample.

He has further stated that Maniram Babankar gave two set of Tops and by melting its gold he was required to prepare ring as directed by Maniram, the relevant entry is at Item No. 397 of the register. Articles ''W1'', W2'', ''01'' and ''02'' are ''Pair-patti''. These articles are new articles and were kept for sale in his stop. Pair-patti of Article ''G1'' and ''G2'' were kept for repair. These ''Pair-Patti'' are of Chhote Khan. In cross-examination, he said that stock register was subjected to verification by Inspector of Central Excise and it was chacked. On bare perusal of stock account register, it is gathered that same was checked by Central Excise Department as the seal of that department was present in the register.

It has come in the evidence of Vasudeo that on 1/8/1985, Investigating Officer came to his shop along with lady co-accused persons in a police van, some altercation took place between him and Investigating Officer. The Investigating Officer was insisting to hand over those ornaments which were sold by the lady accused persons to him and he was saying that he did not purchase any articles nor he is acquainted with them. Thereafter Investigating Officer started beating him by lathi, hand-cuffed and dragged him out from his shop, not only he but his brother Ghanshyam was also beaten and he was also hand-cuffed and dragged out from the shop. Thereafter the Investigating Officer brought him at Police Station Kamptee and he was brutally beaten there. The evidence of this witness has been corroborated by Medico Legal Certificate (Ex.D/10), Ex. D/11 of Municipal Hospital, Kamptee and which pertain to Vasudeo and his brother respectively. Medico Legal Certificate Ex.D/10 of Vasudeo indicates that he sustained injuries which were caused by hard and blunt object and similarly of his brother. Accused Vasudeo also lodged a written report against Investigating Officer of Police Station, Kamptee. A carbon copy of which is Ex.D/14 but when no action was taken, he filed a private complaint against Investigating Officer S.D.A. Tiwari and Sub Inspector Mishra u/s 387, 394, 448, 323, 342 read with Section 34, IPC and Section 147 of Bombay Police Act. Certified copy of complaint is Ex.D/13. The Investigating Officer Shri Tiwari and Sub Inspector Shri Mishra submitted an application u/s 197, Cr.P.C., certified copy of which is Ex.D/15 and it was rejected by VIIth J.M.EC. Court, Nagpur and the order was affirmed in Criminal Revision No. 1358/86 by Sessions Judge, Nagpur vide its judgment date 19/4/1988 (Ex. D/16)

Accused Vasudeo in order to prove his defence filed Ex.D/18 which is a receipt given by accused Vasudeo to Kamlabai Pille acknowledging the receipt of two Gopes (chains). The evidence of Vasudeo is corroborated by the testimony of D.W.2 Kamla Pille, who at the relevant, who at the relevant point of time was serving in the Military Hospital of Kamptee as Ward Assistant. According to her, she gave her two gold gopes (chains) to prepare a new Necklace and when she went to receive it, Vasudeo told him that it has been seized by the police. This witness identified her articles in Court and said that these are the same articles which were given by her to accused Vasudeo. It is pertinent to mention here that in the cross-examination when a specific question was put to her in respect of any receipt of accused Vasudeo, she submitted a receipt Ex.D/18 which was issued by accused Vasudeo acknowledging receipt of her two Gopes (chains). She also stated identification mark on the articles, that how she has identified these chains to be of her. The conduct of the witness submitting the receipt Ex.D/18 during her cross-examination indicates that the version stated by her is true and thus by this evidence the defence of accused Vasudeo is strengthened. Similar type of statement is of defence witnesses D.W.3 Babu Rao and D.W.4 Ajab Rao. In very plain and simple manner, Vasudeo in his examination said that articles ''S'' and ''U'' which are Nathanis (Nose rings) are of his own and they were kept as samples. Had it been any malafide, he could have examined some persons in order to show that these articles belong to them. This conduct of the accused indicates that the defence put-forth by him is probable and can be accepted. In this view of the matter, we are of the considered view, the defence put-forth by Vasudeo is acceptable and cannot be thrown out, merely because the witnesses are the defence. Merely because the witnesses are of defence, their credibility would not be wiped off. According to us, the defence witness also enjoys the same status as that of prosecution witness and their credibility should not be discarded only on this ground. If the evidence of defence witness is otherwise clear cogent and trustworthy for no ryme or reason it should be disbelieved or discarded. In the present case, according to us, the evidence of defence is more reliable than that of prosecution witnesses because the articles were shown to the prosecution witnesses at police station and thereafter, their test identification was arranged. In this regard statements of P.W.7 Mst Gayabai and P.W.13 Mst. Kaminibai may be seen but the defence witnesses identified these articles in the Court.

So far as the recovery of cash amount Rs. 5,219/- is concerned, the story put forth by prosecution cannot be accepted that after selling the ornaments, the cash amount was tied in a cloth and that pocket was buried in a ground. Indeed, no prudent man would accept the truthfulness of this type of hypothetical story. The articles, Amplifiers and Richo Wrist Watch were not put for identification like other articles and there is no explanation of the prosecution in that regard.

On the basis of the aforesaid premised reasons, we do not have any scintilla of doubt that the prosecution fails to prove charges punishable under Sections 395 and 412, IPC against accused persons and as such their conviction is hereby set aside. Since the charge u/s 395, IPC has not been proved and we have set aside the conviction under these sections, as such we cannot uphold the conviction u/s 397, IPC and we, accordingly, also set it aside.

In the result, appeals are allowed. The conviction of all the appellants are hereby set aside. The appellants are on bail, their bail bonds are discharged.