JUDGMENT 1. - Present appellants have submitted these appeals against the judgment dated 12-7-82 passed by the learned Additional Sessions Judge No. 1 Bara. Both the appellants have been convicted under Sec. 394 and 324, I. P. C. and sentenced to undergo rigorous imprisonment for a period of five years, and three years on each count, respectively. Fine of Rs. 200/- under Sec. 394 has been imposed in addition to the sentence of 5 years. Directions were also issued that the sentences shall run concurrently. 2. The Investigating Officer, Sorsan received the information that on July 7, 1981, some persons have committed robbery in the Jungle and, thereafter, some persons chased the accused and the accused party has given a beating to the persons who have chased them. 3. Shri Gulabsingh (P. W. 5) reached the village Sorsan on the basis of the said information received by him through intelligence and found there that the villagers have succeeded in capturing the accused and the accused are in their custody. Investigating Officer, Gulabsingh (P. W. 5) recorded the statement of Shri Kalyan, the victim of the incident, and forwarded that part of the statement to the police station. The first information report (Ex. P, 16) was recorded at the police station on the basis of the statement recorded. After the investigation, a charge-sheet against the accused was submitted under Secs, 394, 397 and 307 I. P. C. During the trial, the statement of Kalyan (P. W. 8.), the main victim of the incident, and the injured Mohan lal (P. W. 1), Ramswaroop (P. W. 2) and Ghanshyam (P. W. 9) were recorded. 4. Doctor Moharchand (P. W. 3) and Dr. Arjunsingh (P. W. 4) were examined to prove the injury reports Exhibits P/1, P/2, P/3 and P/4. P. W. 7 is a formal witness. Raghuraj Singh was handed over Ex. P/6 in the village by the investigating officer P. W. 5 and he handed over the statement of Kalyan at the police station on the basis of which the first information report was recorded. Ramkrishan (P. W. 6) has been produced to corroborate the statement of Kalyan. 5. Exhibit P/1 to P/4 arc the injury reports, opinion reports and Sky-gram reports. The Investigating Officer inspected the site and prepared the the site-memo (Ex P/7). The accused were formally arrested vide Ex. P/8 and Ex. P/9. 6. Ramkrishan (P. W. 6) has been produced to corroborate the statement of Kalyan. 5. Exhibit P/1 to P/4 arc the injury reports, opinion reports and Sky-gram reports. The Investigating Officer inspected the site and prepared the the site-memo (Ex P/7). The accused were formally arrested vide Ex. P/8 and Ex. P/9. 6. Learned counsel for the appellants has vehemently submitted that no case has been made out against the appellants and no recovery has been made. Learned counsel for the appellants further submitted that their is a case of robbery against the present appellants and there is a allegation that sum of Rs. 614/- were taken away by the accused-appellants from the person of P. W. 8 Kalyan. 7. Learned counsel for the appellants has invited my attention to the statement of Mohanlal (P. W. 1). He has stated in his statement (Ex. D/2) that Altaf and Banshi were caught hold and the amount of Rs. 614/- was made available to Kalyan. He has also invited my attention to the statement of Ramswaroop (P. W. 2), who has stated in his statement that, " os :i;s esjs ikl jgs FksA bu :i;ksa dks xkao esa tkdj iapk;r Hkou esa jkeflagth esEcj dks fn;sA " 8. He has further invited my attention to Ex. D/4 and the part A' to B in which it has been recorded that the amount was made available to Kalyan on the very day. This submission of the learned counsel for the appellants is only for the purpose of showing the contradictions in the statement of the witnesses. Kalyan (P. W. 8) has not state a single word in examination in Chief about the mode of returning him the amount which is said to have been robbed. However, he has stated in cross examination that - " bl ?kVuk ds 15 fnu ckn esjs :i;s eq>s ykSVk;s FksA " Ghanshyam (P. W. 9) has submitted in his statement that- " geus :i;s iapk;r okyks dks ns fn;sA " 9. Learned counsel for the accused-appellants has firstly submitted that it was obligatory. on the part of the investigating agency to seize the amount and to produce it before the Court. Learned counsel for the accused-appellants has firstly submitted that it was obligatory. on the part of the investigating agency to seize the amount and to produce it before the Court. He submits that if there would have been a cases of robbery, then the Investigating Officer will not fail in the discharge of his duties and he will recover the amount immediately, specially when it is known that the amount has been taken away by the villagers and has been handed over to Ramsingh, the member of the Panchyat. 10. He has invited my attention to the case of Tejaram and other v. State of Rajasthan, reported in 1976 Cr. L. R. (Raj.) 447. This Court has considered the weightage, which should be given to the case of non-recovery. Para 12 of the aforesaid judgment reads as under:- "12. I have considered over all the contentions advanced on behalf of the appellants. It has already been mentioned that it has not been proved that the dacoit's were five in number therefore the case is not covered by section 359 IPC. Rather it is a case coming only under section 392 IPC, as the dacoit's were armed with guns and had put the witnesses in fear of instant hurt.The case against Ramphool is supported by the recovery of the temple cahmar. No recovery has been affected from Kirodi and the recovery of the gun at the instance of the accused Tejaram does also not connect him with the crime. Thus, the case Tejaram and Kirodi cannot be said to have been proved beyond any manner of reasonable doubt. The findings against Ramphool, supported by the recovery of the stolen article, cannot however, be disturbed even though the test identification is not of any worth." 11. Learned counsel for the appellants has referred to the case of Lachha and Harts v. The State of Rajasthan reported in 1977 Cr. L. R. Raj. 336 . This Court in para 9 has held as under:- "9. There is another circumstance which throws considerable doubt on the story of forcible removal of currency notes from the pocket of Bhima by Harta appellant. In order to substantive its case of robbery, the prosecution had led evidence of recovery of currency notes of Rs. L. R. Raj. 336 . This Court in para 9 has held as under:- "9. There is another circumstance which throws considerable doubt on the story of forcible removal of currency notes from the pocket of Bhima by Harta appellant. In order to substantive its case of robbery, the prosecution had led evidence of recovery of currency notes of Rs. 67/-, and Rs, 60/-, from Harta and Lachha appellants respectively at the time of their arrests on 30th October 1975, but the recovery of the currency notes is highly suspicious in the circumstances of this case. The occurrence took place on 17th September, 1975. It is not believable that the two appellants would be carrying gains of robbery, i. e. the currency notes of Rs. 127/- in toto in their pockets during the whole of the period of about one month and thirteen days that elapsed between the date of occurrence and the date of recovery without spending a single pie out of the said money. The recoveries made by the investigating Officer do not inspire confidence, especially when the currency-notes recovered from the appellants were unidentifiable and did not tally with the denominations of the currency-notes alleged to have been taken out from the pocket of Shima. As the offence of theft of the currency notes from the pocket of Bhima is not established by the prosecution beyond reasonable doubt, the conviction of the appellants for robbery cannot stand." 12. Learned counsel for the appellants has also submitted the case of Sabu and others v. The state of Rajasthan, reported in Cr. L. R. 1979 Rajasthan 133. This Court in Para 15 has held as under:- "85. The prosecution has no doubt succeeded in proving that a pair of silver buttons were recovered from the house of walu petitioner at the latters instance and in consequence of his information recorded under Section 27 of the Evidence Act. L. R. 1979 Rajasthan 133. This Court in Para 15 has held as under:- "85. The prosecution has no doubt succeeded in proving that a pair of silver buttons were recovered from the house of walu petitioner at the latters instance and in consequence of his information recorded under Section 27 of the Evidence Act. Likewise, there is, proof on the record that gold murkis were recovered from the shop of Kishan Chand, Goldsmith at the instance of Magan petitioner and in pursuance of his information which he furnished to the Station House Officer while being under police custody, but recoveries of these ornaments of these ornaments are of no value, as Sabji (PW 1) did not identify the pair of silver buttons and gold murkis' in the trial court to be the same ornaments which he was wearing on his person at the time of occurrence. It was the duty of the prosecution to get these ornaments identified by him in the trial court because such an identification in the court only could be held as substantive evidence to prove that ornaments belonged to the victim of robbery. No other witness has come forward from the side of the prosecution to say that the ornaments recovered at the instance of Walu and Magan were the ornaments of Sabji which were forcibly taken by the petitioner from his body at the time of occurrence. 13. Criminal cases are not tied down like civil cases in the matter of pleadings Evidence has to be scrutinised and chaff and grain has to be separated. Every case depends upon the facts and circumstances of the case, and it is very difficult to apply a particular case to the instant case. General and broad propositions are common, and the propositions are not disputed. Recovery is a important part of the evidence and the prosecutions had miserably failed to produce before the Court that important piece of evidence. 14. Learned counsel for the accused-appellants submits that only on : this ground, the case should be thrown out. I do not find any force in the sub- missions made by the learned counsel for the accused-appellants that the case should be thrown out only on this ground. 15. 14. Learned counsel for the accused-appellants submits that only on : this ground, the case should be thrown out. I do not find any force in the sub- missions made by the learned counsel for the accused-appellants that the case should be thrown out only on this ground. 15. It is one thing that the adverse inference should be drawn against the prosecution for withholding the important piece of evidence like this, and after considering and weighing the other available evidence to decide the case and the matter under consideration, after appreciating other evidence, drawing inferences and conclusions keeping in mind that there is an important infirmity in the case of a the prosecution that they have failed to produce the important piece of evidence, which they were in a position to produce. What weightage should be given to this in amity, will be considered cumulatively with the other infirmities shown by the learned counsel for the accused-appellants. 16. Learned counsel for the accused-petitioners has also submitted that Ramswaroop was an important witness and it has come on record that Ramswaroop was given the amount and non-production of Ramswaroop is fatal to the case of the prosecution. 17. Learned counsel for the accused-petitioners has further submitted that the first information report is concocted one and it has been prepared at a very belated stage, after the starting of the investigation. He submitted that in the first information report, detail facts of the occurrence have been mentioned. He submits that it is an admitted position that the complainant Kalyan has not gone for the second time with the villagers Kalyan has lodged the first information report and he has not seen second part of the incident, namely, about the beating taken place between the accused and the villagers. A person who is not present on the site, cannot know about the details of the incident, which has taken place at a place which is not within his sight. The submission made be the learned counsel for the accused-appellants at the first stage seems to be appealing. However, the learned Public Prosecutor has submitted very vehemently that the submissions made by the learned counsel for the accused-appellants are without force. He submits that rustic villagers do not know generally the mode of placing of the facts before the authorities. The submission made be the learned counsel for the accused-appellants at the first stage seems to be appealing. However, the learned Public Prosecutor has submitted very vehemently that the submissions made by the learned counsel for the accused-appellants are without force. He submits that rustic villagers do not know generally the mode of placing of the facts before the authorities. He further submits that it is true that Kalyan was not at the place of occurrence when the villagers were beaten by the accused. His submission is that the villagers came with the accused party in the village where Kalyan was lying and the possibility is that before the arrival of the police the facts relating to the second part of the incident might have been made known to Kalyan by the villagers and for this reason, Kalyan was in a position to give the details about the both parties of the incident and it might have been considered proper that there should be one first information report of the two parts of the incident. Submissions made by the learned counsel for the accused-petitioners will have bearing in considering whether Kalyan is wholly reliable or partly reliable. I do not want to throw away the case of the prosecution on the basis of the submissions made by the learned counsel for the accused-appellants only on this ground. Learned counsel for the accused-petitioners has submitted that the accused party has sustained injuries. He submits that Mohanlal (P.W. I) has submitted in his statement that the sum of Rs. 614/- were returned to Kalyan on the very day. 18. His submission Ex. D/2 Para A to B has been referred to by the learned counsel for the accused-petitioners for two reasons, namely, (i) that there is a inconsistency between the statement of Mohanlal given in the police Ex. D/2 and the statement given in this Court: and (ii) in the statement of Mohanlal, it has not been mentioned anywhere that the amount was recovered from the accused and subsequently, it was handed over to the complainant Kalyan. Learned counsel for the accused-appellants submits that there is no reference whatsoever in the matter of the amount in the statement of P. W. 1 Mohanlal. He has also invited my attention to the statement of P. W. 2 Ramswaroop and has submitted that it has been mentioned therein that. Learned counsel for the accused-appellants submits that there is no reference whatsoever in the matter of the amount in the statement of P. W. 1 Mohanlal. He has also invited my attention to the statement of P. W. 2 Ramswaroop and has submitted that it has been mentioned therein that. " vyrkQ us vyrkQ ls gq, nwljs eqdkcys esa tc geus vyrkQ dks idM+k] rks mlus mlds twrs esa ls 600@& :i;s fudkydj ns fn;k FksA os :i;s esjs ikl jgs FksA mu :i;ksa dks eSaus xkao esa tkdj iapk;r Hkou esa jkeflag th esEcj dks fn;sA " In his police statement Ex. D/4 part A to B it has been mentioned that the amount 614/- was recovered from Altaf and Banshi and was returned to Kalyan, but he is not in a position to say that who has returned the amount. This part of the statement has been criticised by the learned counsel for the accused-appellants on the ground (j) that there is one theory of recovery in the statement given before this Court, i.e., the amount of Rs. 600/- has been given by Altaf to this witness and there is no reference about the remaining part of the amount, namely, Rs. 14/- in the statement given in this Court; and (ii) that in the police statement, it has been mentioned that a sum of Rs. 614/- was given by the accused Altaf and accused Banshilal to him He submits that in the Court on explanation has been brought on record about a sum of Rs. 14/-. The police statement cannot be considered at all and even then, the witness has denied that part of the statement and has stated that he has not given such statement before the police. 19. Ramswaroop (P.W. 2) has stated in his substantive part of the statement in cross-examination only about Rs. 600/-, and has not stated about the remaining amount. Learned counsel for the accused-petitioners submits that this is inconsistent case made out against the accused as far as the Sec. 394 is concerned. 19. Ramswaroop (P.W. 2) has stated in his substantive part of the statement in cross-examination only about Rs. 600/-, and has not stated about the remaining amount. Learned counsel for the accused-petitioners submits that this is inconsistent case made out against the accused as far as the Sec. 394 is concerned. Ghanshyam (P.W. 9) has stated in his statement that " tc ge vyrkQ dks mBk;k ys tk jgs Fks rc dqN gh nwjh rd py dj vyrkQ us vius twrs esa ls 600 :i;s ds uksV fudkys FksA mlus jkeLo:i dks fn;s FksA " Thus, in this part of the submission also there is no reference about a sum of Rs. 14/-. Kalyan (P. W. 8) has stated in his statement that the amount was returned to him after fifteen to twenty days, but he has not stated that who has returned the amount. 20. I have heard the learned Public Prosecutor as well as the learned counsel for the accused appellants and have given a considered thought in the f matter. The investigating agency should have taken steps for the recovery of the amount, which is said to have been robbed from the person of Kalyan (P.W. 8), this circumstance goes against the prosecution 21. The inconsistency referred to by the learned counsel for the accused-, appellants further aggravates the matter. Learned counsel for the appellants has submitted that there was enmity between the accused and the complainant side, so altercations as well as the incident of beating has taken place in the village. I am not inclined to accept this part of the theory that the incident has taken place in the village and not on the way, as alleged by the prosecution. The incident has taken place where the prosecution alleges, may be of beating or altercation. 22. The inconsistency in the statement of the prosecution witnesses : about the recovery of the amount, which is alleged to have been done by the villagers, creates suspicion story. P.W. 8 Kalyan is partly reliable witness and on the basis of his statement, it will not be proper to sustain the conviction of accused u/s. 344 when there are serious infirmities referred above. P.W. 8 Kalyan is partly reliable witness and on the basis of his statement, it will not be proper to sustain the conviction of accused u/s. 344 when there are serious infirmities referred above. The benefit of doubt goes to the defence and the accused are entitled to be acquitted under S. 394, l.P.C. The sentence awarded under S. 394, I.P.C., is set aside and accused arc acquitted of that charge. 23. As far as the question of conviction under Sec. 324 is concerned, there is a statement of Kalyan (P. W. 8) and that statement gats the corroboration from the statement of Mohanlal (P.W. 8), Ranswaroop (P W. 2) and Ghanshyam (P, W. 9). Learned counsel for the appellants has submitted before me that the injury reports Ex. P/1 and P/2 cannot be read in evidence and Ex. ' P/1, P/2, P/3 and P/4 have not been proved according to law. 24. He has submitted the case of Bhanwarlal v. State of Rajasthan, reported in 1970 R. L. W. Raj. 68 This Court has held that "it may also be mentioned that Shri N. K. Agrawal, Additional Munsiff-Magistrate No. 2, Kotan has conducted the trial slovenly and in a slipshod manner. He has not even cared to examine in detail Dr. R. K. Gupta, P. W. 3, and the Mechanical Expert Bishan Sing. P. W. 6. He has simply got their certificates exhibited. Under the law it is the deposition of medical or expert witness that can be taken in evidence. Their certificates arc extra-judicial matters and cannot be received in evidence. They can be used by the witnesses concerned as an aid to their memory. There is no special rule in the Code of Criminal Procedure making their certificates admissible in evidence without calling them as witnesses. The Magistrate has not even cared to read out the charge-sheet to the accused and obtain his replies The relevant columns in the charge sheet meant for the insertion of the replies of the accused have been left blank. That is how in a serious matter like this the Magistrate has conducted the trial."The proposition laid down in this case is not in dispute. I agree with the learned counsel for the appellants that the learned Judge has conducted the J trial slovenly and in slipshod manner. He has simply got the reports exhibited. That is how in a serious matter like this the Magistrate has conducted the trial."The proposition laid down in this case is not in dispute. I agree with the learned counsel for the appellants that the learned Judge has conducted the J trial slovenly and in slipshod manner. He has simply got the reports exhibited. It would have been better if the formal deposition giving the injuries would have been recorded. Even in this Bhanwarlals case (supra), the Court has not held that injury reports are inadmissible only on this ground. This is a irregularity which can be avoided, if the Court and the Public Prosecutor take the proper care of the case. However, in the facts and circumstances of the case, it cannot be said that the reports are inadmissible in the evidence 25. Apart from that, there are statements of the witnesses, namely, Mohanlal (P. W. 1), Ramswaroop (P. W. 2), Kalvan (P. W. 6) and Ghanshyam (P. W. 5). Accused have come with a theory that the quarrel took place in the village and they have also inflicted the injuries. It is an unfortunate part of this case that the investigating agency admits that the accused also sustained injuries but they have not been examined by the doctor or if examined, the injury reports of the accused have not been produced in the Court. This fact has also been considered by me while setting aside the order of conviction under Sec. 334 I. P. C. The things would have been otherwise if the prosecuting agency as well as the investigating agency might have taken the care of the case in the proper way. However, I am not inclined to accept the submissions made by the learned counsel for the accused-appellant and the conviction and sentence imposed under Sec. 324, I. P. C. are maintained. 26. The appeal is partly allowed. Accused-appellants are entitled to get the benefit of Sec. 428 Cr. P. C. The sentence is reduced from three years to two years. The sentence imposed under Sec. 394 I. P. C. is set aside and conviction imposed under Sec. 324 I. P. C. is maintained.Both the appeals disposed of, accordingly. *******