S. S. SHARMA, J. ( 1 ) SPECIAL Judge Chhatarpur, in Sessions Trial No. 63 of 1982, convicted these appellants for offences under Sections 450 and 395 Indian Penal Code. Each of them has been sentenced under Section 450 Indian Penal Code to rigorous imprisonment for three years and under section 395 Indian Penal Code to rigorous imprisonment for seven years. Both the sentences have been ordered to run concurrently. The remaining accused have been acquitted. The two namely Bade alias Gulai alias Moolchandra and Bhagwandin alias Bhagwandin who have been convicted and sentenced have preferred this appeal. ( 2 ) THE accused persons were charged for offences of conspiracy, murder and dacoity etc. The offences are alleged to have been committed in the night intervening 21st and 22nd April 1981 in village Manpura, Police Station Satai. ( 3 ) THE prosecution case briefly stated is that the seven accused armed with gun, KATTAS etc, in the night intervening 21st and 22nd April 1981 reached to the KHALIYAN of Gorelal (P. W. 1) in village Manpura. Gorelal was sleeping in his KHALIYAN, Gorelal at the point of gun was asked to accompany them and get the doors of rich person in the village opened. Gorelal told them that the villagers are poor persons. However, the hands of Gore Lal were tied down and he was even assaulted. Gorelal was then taken to his house in the village. Gorelal got the door of his house opened. Then the culprits collected the ornaments, utensils etc. The culprits, however, were not satisfied. One of the culprits suggested that Gorelal should be finished at which one of the culprits fired at Gorelal, but Gorelal lay flat on the ground with the result that one of the culprits was injured as a result of the firing. The said culprit fell down. These culprits, having realised that one of their associates had been injured, as a result of the shot, Ian away leaving the injured, along with the ornaments etc. In the meantime some persons from the village came there. On being asked, the injured who as alleged had come along with the culprits, gave out his name to be Jaswant Singh alias Munna sb Ramnarayan Singh, resident of Jyoraha. He also started that he was a Home Guard Sainik No. 155 in Section BT. In the meantime some persons from the village came there. On being asked, the injured who as alleged had come along with the culprits, gave out his name to be Jaswant Singh alias Munna sb Ramnarayan Singh, resident of Jyoraha. He also started that he was a Home Guard Sainik No. 155 in Section BT. He also stated that Kali and Ladle have deceived him and that they had came by a jeep up to Chouka. He had also expressed that the Sub-Inspector be called so that he would be able to narrate the long story to him. He, however, expired at about 9. 00 A. M. before the Police Officer reached there. ( 4 ) RAJENDRA Singh Tomar (P. W. 13) who was then Sub-Inspector of Police Station, Satai, while on patrol duty, reached village Manpur in the morning of 22. 4. 1981. Gorelal (P. W. 1) at about 10 A. M. made a report to the Sub-Inspector, which was recorded as DEHATI NALISI (Ex. P. 24 ). The Sub-Inspector prepared the site plan and held an inquest of the dead body of Jaswant Singh alias Munna. From the dead body he seized two tickets of the bus and two letters Ex. P. 30 and P. 31. Some other seizures of the blood stained and unstained earth and empty cartridges etc. , were also effected. The dead body was sent for postmortem examination. ( 5 ) ACCORDING to the prosecution, appellant Bade alias Gulai and the deceased had gone together in the bus. This appellant was going to his father-in-law's place, while the deceased was alleged to be going to join his duties after long leave. The deceased had left from village Kishanpura, where his elder brother Sunder Singh (P. W. 9) used to live. ( 6 ) IT also is alleged that after this incident on 22. 6. 1981, the appellant Bade alias Gulai caned Sunder Singh (P. W. 9) at the river near village Kishanpura - through appellant Bhagwandin alias Bhagwandin. Accordingly, Bhagwandin went to Sunder Singh (P. W. 9) and took him to the river where appellant Bade alias Gulai was present. This appellant Bade alias Gulai told Sunder Singh that his brother Munna is seriously ill and is admitted in Chhatarpur hospital. Sunder Singh them asked him that Munna had recently accompanied him and how is it that he was so seriously ill. This appellant Bade alias Gulai told Sunder Singh that his brother Munna is seriously ill and is admitted in Chhatarpur hospital. Sunder Singh them asked him that Munna had recently accompanied him and how is it that he was so seriously ill. Bade alias Gulai then told Sunder Singh to save him from the police and that he would pay him Rs. 4,000/ -. He offered to give a true account. On being assured by Sunder Singh, appellant Bade alias Gulai told that he, Munna, Bhagwatdin, Siyaram and others had gone for committing a dacoity in Satai area and during that dacoity Munna by mistake got gun shot injury and he had died. Appellant Bade alias Gulai further told him not to divulge this to the police and he should accept Rs. 4,000/ -. ( 7 ) THE prosecution story further is that Sunder Singh then went to village Patha where his mother Lalita Devi (P. W. 4) was employed as a nurse and informed her all about this. From there, both Lalita Devi and Sunder Singh came to Chhatarpur. The post-mortem over the dead body of Munna was performed on 23. 4. 1981 by Dr. Pande (P. W. 15 ). He had found gun shot injuries over the dead body as have been described by him in his evidence and the post-mortem report Ex. P. 43. The cause of death as mentioned in the post-mortem report was shock due to hemorrhage resulting from those injuries. Gorelal was also sent for examination of his injuries. From the statement of Sub-Inspector Rajendra Singh (P. W. 13), it appears that on 8. 7. 1981 from different accused including the two appellants, different properties were seized in consequence of the respective informations given by them. ( 8 ) THESE appellants pleaded false implication. They also denied the prosecution case about appellant Bade alias Gulai having made any confessional statement to Sunder Singh. ( 9 ) AT the trial most of the prosecution witnesses did not support the prosecution case. The version of Gorelal (P. W. 1) was that during the identification proceedings relating to property, he had stated that his property was not there and that the properties sought to be identified did not belong to him. He also stated that only four persons had come to his KHALIYAN while he was asleep. The version of Gorelal (P. W. 1) was that during the identification proceedings relating to property, he had stated that his property was not there and that the properties sought to be identified did not belong to him. He also stated that only four persons had come to his KHALIYAN while he was asleep. According to him it were those four persons who had taken him to his house in the village. He even stated that he was blind folded by cloth. The trial Judge on the request of the Public Prosecutor permitted him to cross-examine this witness. Even his version was that when injured Munna was asked, he had named Kali and Ladle who had deceived him. Even Pvaribai (P. W. 2) stated that she had gone to the Police Station for identifying her ornaments, but she did not identify any property. This was contrary to the memorandum relating to identification proceedings. Even she was cross-examined by Public Prosecutor with the permission of the Trial Judge. ( 10 ) LACHHUA (P. W. 3), a resident of village Manpura also did not support the prosecution case and he also was cross-examined by the Public Prosecutor with the permission of the Judge and was also contradicted with his statement to the Police. The witnesses regarding the information about the ornaments and the seizures thereof excluding the Sub-Inspector did not support the prosecution story. There is no evidence relating to the identification of the accused. ( 11 ) THE conviction of the two appellants is based entirely on the alleged confessional statement made by appellant Bade alias Gulai to Sunder Singh in the presence of appellant Bhagwatdin. In the police report filed under Section 173 Criminal Procedure Code, offences under the Arms Act were also mentioned, but in that regard the requisite evidence was not adduced. According to the learned trial Judge, the evidence of Sunder Singh stands corroborated by that of Lalita Devi his mother. As against appellant Bhagwatdin, the main reasoning is that the confession of appellant Bade alias Gulai being inculpatory wherein appellant Bhagwatdin was also named as a culprit, it could be used even against the latter, who at that time did not contradict the said confessional statement or his involvement in the incident. ( 12 ) ON Sunder Singh's own testimony, this statement by appellant Bade alias Gulai was given to him on 22-4-1981. ( 12 ) ON Sunder Singh's own testimony, this statement by appellant Bade alias Gulai was given to him on 22-4-1981. Be then reached village Patha to his mother at about 4. 00 P. M. and narrated what appellant Bade alias Gulai had told him. Thereafter he and his mother came to Chhatarpur. During cross-examination he stated that after returning from the river he had given out what appellant Bade alias Gulai had told to him, to Parma Kumhar and Maiyadin Kumhar. Neither of these two witnesses have been examined by the prosecution. He also admitted that before reaching Chbatarpur, he had also gone to Loudi where there is a Police Station. Admittedly, no such report was lodged at Police Station Loudi. When he and his mother reached Chhatarpur, they had gone to Kotwali where he had met the Sub-Inspector and he had told him what appellant Bade alias Gulai had stated to him. He even stated that this report was recorded in Kotwali. The Sub- Inspector who has been examined, does not support this version of Sunder Singh. His version is that it was in the morning at about 10. 00 A. M. on 23-4-1981 that he left village Manpura for Chhatarpur. He also admitted that in the night of 22-4-1981 he was not at Chhatarpur and neither Lalita Devi nor Sunder Singh had met him in the night of 22-4-1981 at Chbatarpur. What he states is that it was at about 1000 A. M. that Sunder Singh and Lalita Devi met him near the mortuary and at that time the statements of these two witnesses were recorded. Even Lalita Devi stated that she and Sunder Singh had gone to Kotwali Chhatarpur where they were informed to go to the hospital. At the hospital they came to know about the death of Munna and his dead body being in the mortuary. ( 13 ) THE aforesaid facts make it clear that although the alleged confessional statement was made by Bade alias Gulai to Sunder Singh in the morning of 22-4-1981, the evidence indicates that this statement found place in the investigation for the first time on 23-4-1981. Admittedly, Sunder Singh bad given out what appellant Bade alias Gulai had told to two persons in village Kishanpura, but neither of them have had examined. Admittedly, Sunder Singh bad given out what appellant Bade alias Gulai had told to two persons in village Kishanpura, but neither of them have had examined. In the circumstances Parma and Maiyadin were material witnesses and from the non-examination of those witnesses, adverse inference can legitimately be drawn against the prosecution, the inference being that if they had been examined, they would not have supported the version given by Sunder Singh. ( 14 ) APPELLANT Bade alias Gulai has retracted the said confession. There was some evidence, as stated above, available to the prosecution to corroborate the version of Sunder Singh, but the prosecution in its wisdom did not choose to examine them. Corroboration is sought from the evidence of Lalita Devi who being mother of Sunder Singh and of the deceased, was obviously an interested witness. Prima facie it does not even appear to be natural for appellant Bade alias Gulai to have made that statement to Sunder Singh, as a real brother could not be expected to accept hush money to screen the offender who is involved in an accident in which his- real brother has been murdered. ( 15 ) BESIDES this, the prosecution itself has led evidence to show that deceased Sunder Singh had named Kali and Ladle as the persons who had deceived him. Neither of these was an accused in this case. The prosecution has also examined one Ramkishore Tiwari (P. W. 14) who stated that the injured was naming Ramkishore and Siyaram etc. , as the persons who had deceived him. According to Sunder Singh (P. W. 9), while his brother Munna was getting ready to go to join his duty, appellant Bade alias Gulai had gone along with Munna. In the circumstances nothing prevented Sunder Singh from naming Bade alias Gulai as one of the culprits which in the context he would have normally stated. ( 16 ) ON a consideration of the evidence, I am satisfied that the evidence of Sunder Singh about appellant Bade alias Gulai having made the alleged confessional statement which is the main basis of the conviction of these two appellants, cannot be safely accepted. Excluding that evidence, no evidence was pointed out against these appellants on which their convictions could be up-held. ( 17 ) CONSEQUENTLY this appeal is allowed. The convictions and sentences of these appellants are set aside. Excluding that evidence, no evidence was pointed out against these appellants on which their convictions could be up-held. ( 17 ) CONSEQUENTLY this appeal is allowed. The convictions and sentences of these appellants are set aside. They be set at liberty forthwith if not required to be detained in connection with any other case. Appeal allowed. .