JUDGEMENT : MEHTA, J. The accused Zeta S/o Narsingh and Rama S/o Bhalia were committed to the Court of the Sessions Judge Dhar on a charge under Section 396, I.P.C. The Sessions Judge found both the accused guilty under Sec. 394 and sentenced each of them to six years rigorous imprisonment. 2. The short facts are that on the night intervening 11th and 12th March 1948, it is alleged that the accused Zeta, Rama and five or six other persons committed dacoity at the house of one Bholu son of Onkar at Chitkhalda, Pargana Nisarpur. One of the dacoits caused severe injury to Chhotu who was sleeping inside the house of Bholu as result of which Chhotu died in Nisarpur Hospital. Rama was arrested on 10-5-48 and Zeta was arrested on 7-5-1948. 3. It may be mentioned that on previous night viz. 10-3-48 Bholu was sleeping alone in the front portion of his house. His son and daughter-in-law had gone out of the village to Balkeshwar. On the night of the 10th March, 48, the thieves broke into the back portion of the house and stole away some property. Bholu gave a report about this to the Police Head Constable Nisarpur at Chitkhalda. In the afternoon of 11th March some Bhils were suspected by Police at Chitkhalda. They were called by the Head Constable Raghunath Prasad. They were questioned and were allowed to go in the evening of the 11th March. When the dacoity took place between the night of 11th and 12th March 48, Bholu being nervous called Chotu to sleep at his house. They changed sleeping places. Bholu slept in the back portion of the house and Chotu slept in the front portion of the house. In the night of the 11th March the thieves came from the front portion of the house where Chotu was sleeping. Chotu was assaulted and he raised hue and cry. Bholu was aroused from sleep and Raghunath Prasad and some Police constables who heard the alarm, came at the spot. They chased the dacoits in different batches but did not succeed and came back. Then report Ext. P/1 was, made. It is dated 12-3-48. The report was dictated by Bholu and it was taken down by Raghunath Prasad. In the report it is mentioned that the thieves took away his battery worth Rs. They chased the dacoits in different batches but did not succeed and came back. Then report Ext. P/1 was, made. It is dated 12-3-48. The report was dictated by Bholu and it was taken down by Raghunath Prasad. In the report it is mentioned that the thieves took away his battery worth Rs. 8/- of two cells and one white chadar, a Bandi and several other articles including one sword without scabbard (Vernacular Matter Omitted). Magan and Phunda came to know at Balkeshwar that their father was assaulted and they went to Nisarpur Dispensary on the 12th night. Chhotu succumbed to his injuries on the 12th March at the Nisarpur hospital. Chhotu's body was burried and when Chaturvedi, Police Inspector, reached Police Station on the evening of the 12th March, he got the burried body disintered on the 13th March, 1948, and the post mortem was held. On the 14th March, 1948, the District Inspector of Police came to Nisarpur and he took charge of the investigation. 4. In this case there is absolutely no evidence regarding the identification of the dacoits. The only incriminating circumstance against the accused Zeta is the recovery of sword from the hut where Zeta was staying. The sword was stained with human blood. Zeta was staying in a separate hut in the village Kadmal which is 2½ miles from Chitkhalda. This discovery was made on 7-5-1948. The sword is Art A/2, In the first place I may mention that the mention about the sword without scabbard in the First Information Report is very suspicious. In my opinion the words ((Vernacular Matter Omitted) appear to be interpolated and appear to be in the handwriting which is different from the handwriting in the body of Ext. P/1. Out of the articles mentioned in the list Ext. P/4 nothing was recovered. After more than two months viz. on 7-5-48 one sword was found in the hut of Weglya and this circumstance seems to corrobotate that there is an interpolation in the report Ext. P/1. There is absolutely no evidence to show that the sword, Art. A-2 belonged to Zeta. Zeta has clearly stated that the sword belonged to Weglya and it was recovered from his hut. This fact is corroborated by D. W. Weglya. In his deposition he says that in his absence the Police seized this sword A/2 from his hut. P/1. There is absolutely no evidence to show that the sword, Art. A-2 belonged to Zeta. Zeta has clearly stated that the sword belonged to Weglya and it was recovered from his hut. This fact is corroborated by D. W. Weglya. In his deposition he says that in his absence the Police seized this sword A/2 from his hut. Weglya has given the identification mark on the sword and says it belongs to him. D. W. Budhsingh also corroborates the statement of Weglya and says that the sword Art. A/2 belongs to Weglya and he also points out the identifying mark, on the sword and says that it belongs to Weglya. Therefore, the recovery of sword from the hut of Weglya does not help the prosecution in any way. Further it appears that on 12th March, 1948 additional statement of Bholu was recorded in the Police Diary giving further list of stolen articles. In that statement Bholu said that (Vernacular Matter Omitted) were also stolen. It is alleged that on 10-5-48 Mr. Shukla, District Inspector of Police, went to Kadmal. There he asked Devki wife of Zeta to produce Dhoti, stolen in dacoity. Devki brought forward one Zanani Dhoti. This was identified by Phunda and her husband as belonging to Phunda. Devki wife of Zeta says that this article A belongs to her. This dhoti is an article which is of such a common use that there is no reason to disbelieve the statement of Devki that it belongs to her. Further it must be remembered that this dhoti Art. A was not formerly included in the list given by Bholu. Thus there is practically no evidence to implicate the accused Zeta in the commission of dacoity. 5. As regards the accused Rama; he was living in a separate hut near the hut of Zeta at Kadmal. Rama was living with his wife Amnibai. The Police went to Amnibai and asked her to produce stolen articles. Amnibai produces article dhoti A/5 on 8-5-48. It was identified by Magan and Phunda. Amnibai says that Dhoti Article A/5 belongs to her. A dhoti with green border is also claimed by Magan as belonging to him. The accused Rama says that it belongs to him. Thus there is practically no evidence against the accused Rama to implicate him in such a serious crime of dacoity. 6. It was identified by Magan and Phunda. Amnibai says that Dhoti Article A/5 belongs to her. A dhoti with green border is also claimed by Magan as belonging to him. The accused Rama says that it belongs to him. Thus there is practically no evidence against the accused Rama to implicate him in such a serious crime of dacoity. 6. In my opinion the prosecution has miserably failed. I may further note with regret that the Sessions Judge Dhar has made considerable use of the statement in the Police Diary. Under S. 162, Cri. P. C., the only way in which the Police diary can be used is to contradict a witness with his subsequent statement but the statement in the policy diary cannot be used as substantive evidence. I, therefore, hold that the prosecution has failed to bring home the guilt of the accused. 7. I, would, therefore, allow this appeal and set aside the order of conviction and sentence and direct that both the accused-appellants be acquitted of the charge and should be set free. 8. SANGHI, J. :- I agree. Appeal allowed.