JUDGMENT 1. - Appellant Jhingurya was tried by the learned Additional Sessions Judge, Gangapur City along with Mangi and Murari under Secs. 395, 398, 342 I.P C. and Sec 27, Arms Act. By his judgment dated October 26, 1978, the learned Additional Sessions Judge convicted all the three accused. The appellant was convicted under Secs. 395 and 398 I.P C and was sentenced to rigorous imprisonment for 7 Years and a fine of Rs. 500/- or in default of payment of fine, to further undergo rigorous imprisonment for one year. He was also convicted under section 342 I.P.C. and sentenced to rigorous imprisonment for six months. He was further convicted under section 27. Arms Act and sentenced for two years rigorous imprisonment. Mangi and Murari, the other two accused who were similarly convicted and sentenced by the learned Additional Sessions Judge were acquitted on appeal by this Court vide its judgment dated March, 21, 1979. 2. Jhingurya has also appealed from the aforesaid order of conviction and sentence passed against him. 3. The case of he prosecution is that on November, 30, 1976 at about 4 a.m. Jhinguriya was a member of a gang of dacoits, who raised village Chirmil and herded the villagers in the house of one phosu. It is alleged that they looted ornaments at gun-point from a number of women and decamped with the stolen property. 4. It is alleged that Puniya and Rupa PWS approached the village Sarpanch, Chiranjilal PW, with an oral complaint of this dacoity. Chiranjilal reduced their complaint into writing as Ex P. 1 Puniya and Rupa took this report to the police Station on November 14, 1976. The First Information Report was registered on the basis of this report on the even date at 2.30 a.m. 5. Jhinguriya is said to have been arrested by the police on November, 15, 1976. It is alleged that he made a disclosure statement (Ex. P. 4) that very day resulting in the discovery of gun from his field where it was lying concealed in a heap of grass. He made another statement Ex. P. 20, on November 18, 1976 in consequence of which a pair of silver bangles was recovered from his house on November 19, 1976. 6. During the trial the prosecution examined among others P.WS. Chiranjilal, Rupa, Puniya, Shanker, Bhoriya and Ramphool, as witnesses in support of its case. 7. He made another statement Ex. P. 20, on November 18, 1976 in consequence of which a pair of silver bangles was recovered from his house on November 19, 1976. 6. During the trial the prosecution examined among others P.WS. Chiranjilal, Rupa, Puniya, Shanker, Bhoriya and Ramphool, as witnesses in support of its case. 7. P W. Chiranjilal gave evidence of the effect that the gun and stolen silver bangles were recovered from the possession of Jhinguriya in consequence of the information supplied by him. He also proved the written report Ex. P. 1, which according to him had been written by him at the instance of Puniya and Rupa. The name of Jhinguriya accused is mentioned in this document as one of the members of the gang of dacoits, who committed this crime. 8. P.WS. Rupa, Puniya, Shanker, Bhoriya are alleged to have identified the appellant among the dacoits in the house of Fosu where the women folk are deprived of their ornaments. 9. After hearing Mr. Jagdip Dhanker, learned counsel for the appellant and the learned Public prosecutor for the state and going through the evidence on record, I am of opinion that the order of conviction and sentence passed against the appellant cannot possibly be sustained. It will be seen that Phosu, in whose house the villagers are said to have been herded together by the dacoits including the appellant and where the women folk are said to have been deprived of their ornaments was not produced as a witness for the prosecution. This is circumstance which naturally goes against the prosecution. 10. The evidence produced by the prosecution suffers from serious infirmities. P.W. Chiranjilal who wrote out the written report Ex. P 1 for Puniya and Rupa on November 13, 1976 would have on believe that he was present at the time of the arrest of appellant Jhinguriya on November 15, 1976. and that the said arrest was effected from Jhiugurnas field. P.W. Ganga Ram, the Head Constable, who arrested the appellant, however deposed that the arrest was made at the shop of a Mahajan of village Chirmil, where the appellant was found sitting at that time. Thus the very foundation of die ease of the prosecution against the appellant is weak. 11. It appears that P.W. Chiranjilal has some animous against the appellant. That is why he introduced his name in the written report Ex. Thus the very foundation of die ease of the prosecution against the appellant is weak. 11. It appears that P.W. Chiranjilal has some animous against the appellant. That is why he introduced his name in the written report Ex. P. 1 is being a participant in this crime. P.W.S. Rupa and Puniya at whose instance he claims to have prepared the written report Ex. P. 1, have categorically denied that they had mentioned the name of the appellant to Chiranjilal as one of the members of the gang of dacoits who committed this crime. This really shows that Chiranjilal introduced the appellant's name in the First Information Report suo motu. It would, there fore, not be safe to place any reliance on this document as an incriminating circumstance against the appellant. 12. Turning now to the recovery of the gun, the prosecution has produced only one witness namely Chiranjilal, who says that after making the disclosure statement Ex. P. 4 to the Police the appellant led them to this field and produced the gun from there taking it out from a heap of grass stacked there. The other witness of the so-called disclosure statement Ex. P. 4, namely, Madanlal was not produced as a witness in the trial As already indicated, Chiranjilal is not a reliable witness. It will not be safe to record a conviction on the basis of his testimony. 13. Similarly the alleged recovery of the stolen silver bangles made from the house of the appellant at his instance is also not proved beyond doubt. Once again the prosecution would have us rely on the statement of Chiranjilal P.W. to prove this fact. Fatwa, the other witness of the recovery memo Ex. P. 6, was not produced as a witness in the trial. It is significant to note that the disclosure statement Ex P. 20 relating to this recovery was recorded by the Investigating officer on November 18. 1976 at 11.30 AM. The recovery is said to have been made on November 19, 1976 at about 1.30 P.M. This inordinate time gap between the alleged disclosure statement and the recovery throws serious doubt on this evidence. 14. P.W Rupa and Puniya asserted that the appellant was welt known to them prior to the commission of this crime. 1976 at 11.30 AM. The recovery is said to have been made on November 19, 1976 at about 1.30 P.M. This inordinate time gap between the alleged disclosure statement and the recovery throws serious doubt on this evidence. 14. P.W Rupa and Puniya asserted that the appellant was welt known to them prior to the commission of this crime. In fact the prosecution has produced evidence on record to show that there was some litigation between Puniya and Rupa on one side and appellant Jhinguriya on the other in respect of some agricultural land prior the occurrence. That being so, Rupa and Puniya would not have made a mistake to identify Jhinguriya among the dacoits had he actually participated in the commission of this crime. Rupa and Punk a testified In the-trial that they did not see Jhinguriya among the 'decoits that night. 15. P.W. Bhoriya also stated that appellant Jhinguriya was not among the dacoits that night He stated that none of the participants of the commission of this crime was "known to him before the occurrence. He added in this context that Jhinguriya was known to him prior to the occurrence. It would, therefore, be reasonable to infer from his evidence that Jhinguriaya did not participate in the commission of this crime. 16. P.W. Shanker and Ramphool have of course stated that Jhinguriya was present in the house of Phosu where the dacoits had collected the women folk, and deprived them of their ornaments. They have not specified the part played by Jhinguriya in the commission of this dacoity and they have not explained in what context they had seen him there. In fact their evidence on the point is materially discrepant Ramphool, for example, stated that he had seen Jhinguriya on the way and that it appeared to him that he was wearing white clothes. On the other hand Shanker stated that Jhinguriya was present in the house of 'Phosu where the crime -was committed. It will not fee safe to place reliance on the testimony of these witnesses specially when Rupa and Puniya, the complainants in the case, are not prepared to name .the appellant among the culprits who committed this crime. 17. For all these reasons, I am of opinion that the prosecution has failed to prove beyond reasonable doubt the charges framed against the appellant. The appeal is, therefore, allowed. 17. For all these reasons, I am of opinion that the prosecution has failed to prove beyond reasonable doubt the charges framed against the appellant. The appeal is, therefore, allowed. The order of conviction and sentence passed against the appellant by the trial Court is set aside. Instead, the appellant is acquitted. He is already on bail. His bail bonds are hereby discharged.Appeal Allowed. *******