ORDER T.P. Mukerji, J. - The facts bearing on these two connected appeals are shortly as follows. 2. In the night between 2nd and 3rd December, 1961, there was a dacoity at the house of one Dwarka Prasad of village Sarora, P.S. Jahanabad district Pilibhit. The dacoits assaulted the members of the family of Dwarka Prasad and decamped with ornaments and other valuables belonging to them. Dwarka Prasad lodged the first information report on the next day giving details of the property removed by the dacoits. Eventually, on 3-12-1961 at about 11.15 p.m. in the night, the three Appellants viz., Kade Khan, Mansab Khan and Bade Khan were arrested in the course of an encounter with the police and some of the articles looted from the house of Dwarka Prasad are said to have been recovered from their possession. Accordingly, three separate recovery memos Ex. Ka. 8, Ka. 9 and Ka. 10 were prepared by Sub Inspector S.K. Tandon and the articles were sealed. The properties were put up for identification in a test identification parade held by Sri R.B. Singh, Magistrate First Class, Pilibhit (PW 8). They were duly identified by Dwarka Prasad PW 1 and his wife Sheo Devi PW 2. The police submitted a charge sheet against all the three Appellants on 30-10-62. The committing Magistrate however, discharged Bade Khan, the Appellant from jail and committed the other two Appellants viz., Kade Khan and Mansab Khan to stand their trial in the court of sessions u/s 35 IPC. The order of the Committing Magistrate is dated 14-12-1963. 3. Appellants Kade Khan and Mansab Khan were tried by the Temporary Sessions Judge, Pilibhit but they were acquitted by him by his judgment dated 26-11-1963. It mav be mentioned here that the learned Temporary Sessions Judge did not consider the conviction of Appellants Kade Khan and Mansab Khan u/s 412, IPC, evidently, because no such charge was framed against them. He evidently overlooked the provisions of Sections 236 and 237 Code of Criminal Procedure. However, the fact remains that in the first trial of Appellants Kade Khan and Mansab Khan u/s 395 IPC, there was an acquittal by the Temporary Sessions Judge, as already stated, on 26-11-1963, while Kade Khan, the Appellant from jail was discharged by the committing court on 14-12-1963. However, the fact remains that in the first trial of Appellants Kade Khan and Mansab Khan u/s 395 IPC, there was an acquittal by the Temporary Sessions Judge, as already stated, on 26-11-1963, while Kade Khan, the Appellant from jail was discharged by the committing court on 14-12-1963. The Committing Magistrate also did not, while discharging Bade Khan consider the evidence of recovery of ornaments and frame the alternative charge u/s 412, IPC. 4. During the pendency of the case u/s 395, IPC against Appellants Kade Khan and Mansab Khan in the court of sessions, a separate charge sheet was submitted against them as well as against Bade Khan, the Appellant from jail, on 12-8-1963 and a separate case was registered against them u/s 412, IPC and the three Appellants were committed to the court of sessions by the Additional District Magistrate Pilibhit on 25-1-1967. The learned Sessions Judge, Pilibhit who tried that case, found all the three accused guilty u/s 412, IPC and convicted them under that section sentencing eacti of them to undergo rigorous imprisonment for four years. It is against this conviction and sentence that these two appeals have been filed. 5. As already noted above, Appellants Kade Khan arid Mansab Khan have filed a joint appeal while Appellant Bade Khan has filed a separate appeal from jail. The Learned Counsel for the Appellants Kade Khan and Mansab Khan have resorted to the plea of autrefois aquit embodied in Section 403(1) of the Code of Criminal Procedure. He argued that Section 403, which lays down the rule against double jeopardy, runs as follows: A person who his once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence, shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made u/s 236, or for which he might have been convicted u/s 237. Then follow other sub-sections with which we are not concerned here. Then follow other sub-sections with which we are not concerned here. There is an explanation appended to the section which is in the following terms: Explanation--The dismissal of a complaint, the stopping of proceedings u/s 249, the discharge of the accused or any entry made upon a charge u/s 273, is not an acquittal for the purposes of this section. Sub-section (1) of Section 403, lays down that when a person has once been convicted or acquitted of an offence, he shall not be tried for the same offence or for any other offence on the same facts for which a different charge might have been framed against him, u/s 236, Code of Criminal Procedure, or for which he might have been convicted u/s 237 Code of Criminal Procedure of the same act. This sub-section, evidently, embodies the principles of autrefois convict and autrefois acquit of criminal jurisprudence. It may be mentioned here that Article 20(2) of the Constitution of India provides that no person shall be prosecuted and punished for the same offence more than once. It operates as a bar to prosecution as well as conviction of a person for the same offence. The rule Laid down in Sub-section (1) of Section 403, Code of Criminal Procedure is wider in terms inasmuch as it operates as a bar to the trial of a person who has once been convicted or acquitted not only for the same offence, but also for a cognate offence arising on the same facts. 6. In the present case as already stated, the learned Temporary Sessions Judge, Pilibhit who had tried the Appellants Kade Khan and Mansab Khan on the charge u/s 395, IPC acquitted them of the offence under that section. He observed that the evidence of the alleged recovery of the stolen articles from their custody was not sufficient to establish the charge u/s 395 IPC, when the basic evidence, i.e., the evidence of identification of the Appellants was not reliable. He observed that the evidence of the alleged recovery of the stolen articles from their custody was not sufficient to establish the charge u/s 395 IPC, when the basic evidence, i.e., the evidence of identification of the Appellants was not reliable. The learned Sessions Judge who tried the two Appellants of the charge u/s 412, IPC conceded that, in the normal course, the trial of the Appellants u/s 412, IPC would be barred in view of the provisions of Section 403, Code of Criminal Procedure but he was of opinion that Section 403, Code of Criminal Procedure did not apply to the present case, because a separate charge sheet against the Appellants u/s 412, IPC had been submitted, when their trial u/s 395, IPC was pending in the sessions court. This is what he writes in point: Kade Khan and Mansab Khan were acquitted u/s 395, IPC on 26-11-63 and in the normal course their trial u/s 412, IPC would be barred in view of the provisions of Section 403, Code of Criminal Procedure. It was contended before me that this is not a normal case in which Section 403 Code of Criminal Procedure can be applied because in the case u/s 412, IPC the charge sheet was submitted on 12-8-63 when the case was pending before the trial court and in the case u/s 395 IPC the evidence was started on 23-9-1963, i.e. after the charge sheet was submitted. Tire accused in the case u/s 412 IPC were summoned by the committing magistrate on 5-11-63, i.e., after the dacoity case had concluded and was reserved for judgment.... So, to my mind, in view of the fact that a separate charge sheet of a case u/s 412 IPC was pending against the accused, the charges u/s 412, IPC could not be framed and therefore, this case is not hit by the provisions of Section 403 Code of Criminal Procedure. 7. I am of the view that the learned Magistrate has misconceived the clear implication of Section 403 Code of Criminal Procedure. Section 403(1) Code of Criminal Procedure lays down that once a person has been convicted or acquitted of an offence, he is not liable to be tried again for the same offence or for a cognate offence on the same set of facts. Section 403(1) Code of Criminal Procedure lays down that once a person has been convicted or acquitted of an offence, he is not liable to be tried again for the same offence or for a cognate offence on the same set of facts. In the present case, Appellants Kade Khan and Mansab Khan were acquitted of the offence of dacoity u/s 395 IPC on 26-11-1963. They could have been charged, in view of the provisions of Section 236 Code of Criminal Procedure, with an offence u/s 412, IPC and tried for the same in the alternative. In view of the provisions of Section 237 Code of Criminal Procedure the learned Temporary Sessions Judge was competent to convict the Appellants u/s 412, IPC even though there was no charge under that section. The learned Temporary Sessions Judge did not, however, convict the Appellants of the charge u/s 412, IPC and acquitted them of the charge u/s 395, IPC. As soon as the order of acquittal was made, the bar of Section 403(1) Code of Criminal Procedure came into operation and the trial of the two Appellants Kadey Khan and Mansab Khan u/s 412 IPC was incompetent. The fact that the charge sheet against them was submitted on 12-8-1963 during the pendency of the sessions case u/s 395, IPC does not preclude the mandatory provisions of Section 403, Code of Criminal Procedure. 8. I hold, therefore, that the trial of the two Appellants Kade Khan and Mansab Khan u/s 412, IPC in the circumstances of the present case was illegal and their conviction must be set aside. 9. Apart from the legal plea taken by the Learned Counsel for the Appellants Kade Khan and Mansab Khan as set out above, he contended that even on the merits the case against the two Appellants had not been proved beyond reasonable doubt., He pointed out that the evidence of the recovery of the stolen property from their custody is open to serious doubt. It was submitted that the recovery said to have been made by Sub-Inspector S.K. Tandon PW 5 in the presence of witness Chaturbhuj, PW 7, but the latter stated in his evidence that he was not actually present when the recoveries were made and that he put his signatures on Exs. Ka. 8, Ka. 9 and Ka. 10, as directed by Sri Tandon. Ka. 8, Ka. 9 and Ka. 10, as directed by Sri Tandon. The learned Sessions Judge has rightly pointed out that the search witness Chaturbhuj, PW 7 had been won over and he did not tell the whole truth in his evidence. He is a literate person and it does not appeal to reason that he would sign the recovery memos merely at the request of the Sub Inspector if he had not witnessed the seizures. The recoveries were made from the Appellants on the day, following the commission of the dacoity and the articles were correctly identified by Dwarika Prasad, PW 1 and his wife at the test identification parade held by a Magistrate of the First Glass. In the circumstances, the learned Sessions Judge was justified in relying on the solitary evidence of Sri Tandon, PW 5, who had undoubtedly effected the recoveries. On the merit therefore, the Appellants have no case worth consideration. 10. So far as Badey Khan, the Appellant from gaol is concerned, the case stands on a different footing. He was discharged by the Committing Magistrate by his order dated 14--12--1963 and he was not put up for trial for the offence of dacoity u/s 395, IPC before the learned Sessions Judge, Pilibhit. I have already quoted above the Explanation to Section 403 Code of Criminal Procedure which lays down that the discharge of an accused is not to be regarded as an acquittal for the purpose of that section. Clearly, therefore, the provisions of Sub-section (1) of Section 403, Code of Criminal Procedure does not apply to his case, merely because he was discharged by the Committing Magistrate. There was, therefore, no legal bar to his trial and conviction u/s 412, IPC. On the merits as I have already pointed out, the appraisal of the evidence of recovery by the learned Sessions Judge is correct and does not call for an interference. The conviction of Appellant Badey Khan is, therefore, maintained. 11. The result is that Appeal No. 1652 of 1967 filed by Kadey Khan and Mansab Khan is allowed. Their conviction and sentence are set aside. They are on bail. Their bail bonds are discharged. The gaol appeal of Badey Khan is dismissed. He is in gaol and will serve out the sentence according to law.