JUDGMENT 1. - The learned Additional Sessions Judge No. 3, Dholpur, by his Judgment dated April 7, 1983 convicted the accused appellants Gulab and Hukma under sections 396 and 302 IPC. Both the accused persons have been sentenced for life imprisonment and a fine of Rs. 2,000/ - and in default of payment of line to further undergo rigorous imprisonment for six month, under section 396 IPC. No separate sentence has been awarded under section 302 IPC as both of them were already sentenced to imprisonment for life under section 396 IPC. 2. Briefly stated the prosecution story is that Munna, one of the accused persons lodged a written report Ex. P17 at Police Station, Sarmathura on September 26 1980, alleging that in the night intervening June 28-29, 1980 at about 12.30.7 miscreants entered inside the house armed with weapons. After entering inside the house the miscreants awakened Ramji Lal, who was sleeping in the court yard of the house and asked as to who was he Thereafter, two miscreants caught hold of Ramji Lal and five miscreants went inside the house. It was alleged that on his the informant also woke up and got awakened the other inmates of the house. The miscreants caught hold of the informant and asked his name and thereafter inflicted a blow by the butt of the gun and brought him outside and also brought his relation and made him to stand nearby. Two of the miscreants remained standing near them and the other miscreants went inside the house and got decamped the ornaments of the women folk. Thereafter, the informant's aunt Mathuri was caught hold by the miscreants and asked her to disclose the Valuables. She was beaten by Dandas and then Mathuri threw the key in front of the miscreants and told to take out the valuables from the place where they could trace. The miscreants then told Mathuri that she would be killed unless she herself took out the valuables. Mathuri on this told that she had no valuables with her and the miscreants then sprinkled kerosene oil on Mathuri and burnt her. It was further alleged that Ramji Lal, who was brother-in-law (gainer side) of the informant gave a push to one of miscreants and made escape so as to each to village Baroli. Mathuri on this told that she had no valuables with her and the miscreants then sprinkled kerosene oil on Mathuri and burnt her. It was further alleged that Ramji Lal, who was brother-in-law (gainer side) of the informant gave a push to one of miscreants and made escape so as to each to village Baroli. On a hue and cry raised by Ramji Lal many villagers came on the spot but before the villagers could reach on the spot the miscreants had run away after looting the property. In the report it was also mentioned as to what clothes were put on by the miscreants. All the miscreants were armed with guns. The condition of Mathuri was serious as such she had been sent to hospital at Bari. It was further mentioned that the list of the valuables taken away in the dacoity will be submitted after preparing at the site. It was also mentioned that his brother-in-law Ramji Lal, aunt Mathuri, his mother and himself can identify the miscreants and the ornaments if brought before them. On the basis of the aforesaid report, the Incharge Police Station entered the FIR Ex. P18 in the 'Rosnamcha'. A case was registered under sections 458, 380 and 307 IPC. 3. Mst. Mathuri was clinically examined by PW 7 Dr. Virendra Gopal, Medical Officer Incharge Hospital, Bari, and recorded the injuries in Ex. P 12. Dying declaration of Mst. Mathuri was also recorded by Lal Chand Kalra PW 17 ASI Police Station Bari vide Ex. P 19. As the condition of Mst. Mathuri was serious as such be was taken to Hospital at Dholpur Mst. Mathuri succumbed to the injuries on July 11980 and her autopsy was conducted by Dr. Mohan Lal Maru PW 12 on July 2, 1980. According to Dr. Mohan Lal the case of death of Mathuri was shock due to extensive burns. The Police after usual investigation filed a challan against Munna Gulab and Hukma. Proceedings under Section 299 Cr. P. C. were taken against accused Kanwar Lal and one of the accused Badri died during investigation in an encounter on November 3, 1980. The case was tried against the three accused persons Munna, Gulab and Hukma by the learned Additional Sessions Judge No. 3. Dholpur. Proceedings under Section 299 Cr. P. C. were taken against accused Kanwar Lal and one of the accused Badri died during investigation in an encounter on November 3, 1980. The case was tried against the three accused persons Munna, Gulab and Hukma by the learned Additional Sessions Judge No. 3. Dholpur. Charges under sections 396, 120-B, 302 were framed against the accused Gulab and Hukma and charges under sections 396, 120-B and 302/149 IPC against the accused Munna. All the accused persons denied the charges and claimed to be tried. The prosecution in support of its case examined 20 witnesses. The accused persons in their statements recorded under section 313 totally denied the incident. Accused persons Gulab and Hukma further stated that they had been falsely implicated in the case by the third accused Munna. Munna had taken a loan of Rs. 5,000/- each from both the accused persons Gulab and Hukma for purchasing a truck but he neither purchased the truck nor returned the amount. A dacoity had taken place and when they demanded their money from Munna then they have been falsely implicated by Munna. The accused persons did not lead any evidence in defence. 4. The learned Additional Sessions Judge acquitted accused Munna of all charges and accused appellants from charges under section 120-B IPC but convicted and sentenced them as mentioned above. In these circumstances the present appeal has been filed by the two accused Gulab and Hukma. 5. The prosecution in this case examined PW 3 Ramji Lal. PW 4 Shanti PW 5 Sant Ram, PW 6 Kampoori, PW 9 Kamla, PW 11 Murari and PW 15 Kanchan Devi as eye-witnesses of the incident. The learned Additional Sessions Judge, however, placed reliance on only two eye-witnesses namely PW 3 Ramji Lal and PW 9 Kamla and discarded the evidence of other eye-witnesses as they were declared hostile and had not supported the prosecution case during trial. 6. The prosecution also produced the evidence of identification of the accused-appellants made before PW 20 Kundan Lal Yaduvanshi, Munsif and Judicial Magistrate, Bari, and also the evidence of recovery of the articles made at the instance of the accused persons under section 27 Evidence Act. The prosecution also led the evidence regarding the identification of the articles made before the learned Magistrate. The prosecution also led the evidence regarding the identification of the articles made before the learned Magistrate. Placing reliance on all this evidence, the learned Additional Sessions Judge found the prosecution case proved against the accused- appellants. 7. It was argued by the learned counsel for the accused-appellant that so far as the evidence of the two eye-witnesses PW 3 Ramji Lal and PW 9 Mst. Kamla is concerned it is full of material contradictions and cannot be relied upon. As regards Ramji Lal, it was submitted that he was a police constable and brother-in-law of one of the accused persons i. e. Munna. He was also declared hostile and was allowed to be cross-examined by the Public Prosecutor. It was also pointed out that according to Ramji Lal, miscreants, who had entered inside the hut of Mathuri, were not the accused-appellants Hukma and Gulab. He further admitted that both the above accused-persons remained standing near him during whole time of the incident. He also admitted in his statement that he had gone from the scene of occurrence and the miscreants did not put any fire before him. It was also pointed out that according to Ramji Lal both of his hands were tied and he was made to sit and thereafter the miscreants told him to run away otherwise he would be shot down. It is submitted that Ramji Lal also admitted in the cross-examination that the miscreants had covered their faces and he was only hearing their voice. In these circumstances it is submitted that no reliance can be placed on such witness. 8. So far PW 9 Mst. Kamla is concerned, it was argued by learned counsel for the defence that her statement also cannot be relied. She had given a statement contrary to Ramji Lal that the faces of the dacoit were not covered. She, however, admitted that the miscreants did not permit her and other inmates of the house of Munna to go out, however, when Mathuri was put on fire then all of them came outside and in the light of the fire they identified the accused persons. It is submitted that apart from Mst. Kamla none of the inmates of the house of Munna have supported the above statement made by Mst. Kamla. Munna, who was one of the accused persons, was the uncle's son of Mst. It is submitted that apart from Mst. Kamla none of the inmates of the house of Munna have supported the above statement made by Mst. Kamla. Munna, who was one of the accused persons, was the uncle's son of Mst. Kamla and though she had stated in her statement Ex. D 3 recorded under Section 161 Cr. P. C. that it was possible that Munna might have committed such act but she denied to have made such statement during trial. It was submitted that Mst. Kamla is the daughter of deceased Mst. Mathuri and is highly interested witness. 9. Learned counsel for the defence did not seriously challenge the identification of the articles but he submitted that the articles in question were all of common use by the women folk and the accused persons cannot be connected for the crime merely on account of the identification of the articles by the prosecution witnesses. 10. As regards the discovery made by the accused persons and the recovery of the articles made at their instance, it was vehemently submitted that PW 13 Pritam and PW 14 Sri Ram, the two motbirs of the recovery, have been declared hostile and have not supported the prosecution case as regards the recovery memo Ex. P 15 made at the instance of accused Hukma. It is submitted that the only evidence of PW 19 Ratan Singh, who was the investigating officer, cannot be relied as being a highly interested witness. So far as the recovery Ex. P 30 made at the instance of accused Gulab, it was argued that two motbirs Babu Lal and Ram Dayal have been mentioned. Out of these two witnesses Babu Lal has not been examined and the recovery memo Ex. P 30 does not contain the signatures of Ram Dayal. Though Ram Dayal has been examined as PW 18, but he is the brother-in-law (DEVAR) of deceased Mathuri, and there is a serious discrepancy in his statement and that of PW 19 Ratan Singh about his reaching at the place of recovery. In this regard it is submitted that according to this witness PW 18 Ram Dayal, he was resident of Baroli and the recovery was made at village Hussainpur, which was at a distance of 15 miles from Baroli. He further stated that the Sub-Inspector had taken him to Hussainpur from the market of Bari in a truck. In this regard it is submitted that according to this witness PW 18 Ram Dayal, he was resident of Baroli and the recovery was made at village Hussainpur, which was at a distance of 15 miles from Baroli. He further stated that the Sub-Inspector had taken him to Hussainpur from the market of Bari in a truck. He was taken alongwith Babu Lal from the market of Bari. On the other hand, PW 19 Ratan Singh Station House Officer, Police Station, Sarmathura deposed that Babu Lal and Ram Dayal had met him in the village. Ram Dayal had come there after meeting some relations. He had never taken Ram Dayal alongwith him and he clearly denied that he took both of these persons i. e. Babu Lal and Ram Dayal from Bari. In these circumstances, it is submitted that there is no reliable evidence at all for the recovery made at the instance of the accused-appellants and they cannot be connected with the crime on the basis of such recoveries. 11. Learned Public Prosecutor, on the other hand supported the judgment of learned Additional Sessions Judge and argued that the evidence of PW 3 Ramji Lal and PW 9 Kamla, who were eye-witnesses, is fully reliable. It was also argued that even if PW 13 Pritam and PW 14 Sri Ram, the motbirs of recovery memo Ex. 15 have turned hostile, there is nothing to disbelieve the statement of PW 19 Ratan Singh merely on the ground that he is an investigating officer in the case. It was also submitted that the prosecution witnesses are rustic villagers. and minor discrepancies in their statements are bound to occur and this rather goes to prove their truthfulness. 12. The fact of dacoity having been committed in the house of Mathuri and she having died on account of extensive burns, is proved beyond any manner of doubt and is not challenged even by the defence. The identification of articles has been proved by Ram Ratan PW 1, Javitri PW 10, Kamla PW 9 and Ram Dulari PW 8 as belonging to them. The accused persons do not claim these articles as belonging to them and there is no reason to disbelieve the statements of these witnesses for identifying the articles. So far as Ex. The identification of articles has been proved by Ram Ratan PW 1, Javitri PW 10, Kamla PW 9 and Ram Dulari PW 8 as belonging to them. The accused persons do not claim these articles as belonging to them and there is no reason to disbelieve the statements of these witnesses for identifying the articles. So far as Ex. P 19 the dying declaration of Mathuri is concerned, it has been proved by PW 17 Lal Chand A. S. I. but it does not connect the accused-appellants with the crime as she had not named any one of the miscreants. The only evidence thus connecting the accused- appellants with the crime is that of eye-witnesses and the recoveries made at their instance by giving information under section 27 Evidence Act. 13. In this case a written report Ex. P 17 was lodged by Munna, who, during investigation, was himself found to be involved in the crime. It appears that during trial the prosecution witnesses tried to save him as such he was acquitted. PW 1 Ram Ratan who is the husband of deceased Mathuri, has come in the witness-box and was declared hostile and was allowed to be cross-examined by the Public Prosecutor. According to him Ramji Lal had come to him at Baroli, and told him that dacoity was taking place at his house. Ramji Lal had told that there were four persons but he did not tell anything about Mst. Mathuri. When he came to his house then he found that Mathuri was burnt extensively. In the cross-examination made by the Public Prosecutor he stated that he never stated portion A to B in Ex. P 3 his statement recorded under Section 161 Cr. P. C. that his wife had told him that this mischief was done by Munna. This witness in portion A to B in Ex. P 3 had stated as under: " esjh vkSjr us ckMh esa esjs ls dgk fd ;g cnek'kh eqUuk dh gSA ogh lcls ckrsa dj jgk FkkA " Though this witness Ram Ratan is not an eye-witness of the incident but the above conduct shows that he was not coming out with complete truth and was trying to save Munna who was his nephew. The other prosecution witnesses namely Ramji Lal PW 3 and Mst. The other prosecution witnesses namely Ramji Lal PW 3 and Mst. Kamla PW 9, who are the alleged eye-witnesses of the crime and have been relied upon by the learned trial Court, have also tried to save Munna during the trial. Ramji Lal PW 3 is the real brother-in-law of Munna. The important feature of the case is that the written report Ex. P 17 was lodged by Munna himself, who was subsequently found to be a guilty associate in the crime during the investigation. According to the story narrated in Ex. P 17 Munna was an eye-witness of the whole incident and he nowhere mentioned that the hands of Ramji Lal were tied by the miscreants and thereafter he was allowed to run away from the spot by the miscreants themselves. On the contrary it has been mentioned in Ex. P 17 that his brother-in-law Ramji Lal gave a push to one of the miscreants and ran away to Baorli Ramji Lal PW 3, on the other hand, stated that he was caught hold by the miscreants and his hands were tied. Thereafter the miscreants told him that he would be shot and as such he should run away. Then Ramji Lal ran away from the spot, and reached village Baroli and raised hue and cry and collected several persons and brought them on the spot and then found that Mst. Mathuri has been burnt It is difficult to believe that Ramji Lal, who, according to him, was made to sit by tying down his hands would be allowed by the miscreants to run away without any rhyme or reason, especially when they had not completed their act of looting the property and burning Mst. Mathuri. Ramjilal also does not state that he had gone to Ram Ratan PW 1 and had told him the entire story as narrated by Ramratan. According to him, he had run away from the spot before Mathuri was burnt by the miscreants. His statement was not considered to be reliable in toto by the prosecution itself and as such permission was sought by the Public Prosecutor himself to cross-examine him. He also stated that the miscreants had covered their faces and he was only hearing their voice. He also stated that the miscreants, who had entered inside the hut of Mathuri, were not Hukma and Gulab. He also stated that the miscreants had covered their faces and he was only hearing their voice. He also stated that the miscreants, who had entered inside the hut of Mathuri, were not Hukma and Gulab. He clearly stated that both the accused persons remained standing by his side for the full time of the incident. In these circumstances, no reliance can be placed on the statement of Ramji Lal, to hold that the accused-appellants committed the dacoity and murder of Mathuri. 14. It is not necessary to discuss the evidence of the five eye-witnesses namely PW 4 Shanti, PW 5 Sant Ram PW 6 Kampoori, and PW 11 Murari and PW 15 Kanchan Devi as they have not supported the prosecution case during trial, and even the trial Court has not believed their testimony as being eye-witnesses of the crime. 15. Thus, there remains the solitary statement of PW 9 Kamla, as a witness of the incident. Apart from her being an interested witness as daughter of deceased Mathuri, there are discrepancies in her statement and that of Ramji Lal PW 3. Ramji Lal clearly stated that all the accused persons had covered their faces, but according to Kama their faces were uncovered. According to Kamla when the miscreants had entered their house Munna; wife of Minna, his mother, and sister were also present. The dacoits had not permitted the inmates of the house of Munna to go out but when they had lit fire then all of them had come out and they had identified the dacoits in the light of the fire, but none of the other inmates of the house of Munna have stated that they had seen or identified the dacoits in the light of the fire. She had denied the following statement made by her from C to D in Ex. D3: " gks ldrk gS eqUuk us gekjs lkFk ,slk djk fn;k gksA " In view of these circumstances, it would be unsafe to rely on the solitary statement of PW 9 Mst. Kamla to hold the accused-appellants guilty for the heinous crime of dacoity and murder. 16. After dealing with the statements of the eye-witnesses there remains only the evidence of recoveries made at the instance of the accused-persons. Kamla to hold the accused-appellants guilty for the heinous crime of dacoity and murder. 16. After dealing with the statements of the eye-witnesses there remains only the evidence of recoveries made at the instance of the accused-persons. Suffice it to say that if the statements of the eye-witnesses is not held to be reliable, it is difficult to convict the accused-appellants merely on the basis of recovery for offences under section 302 in the facts and circumstances of this case. That apart the evidence of recovery itself is not free from doubt. So far as recovery memo Ex. P 15 made at the instance of accused Hukma the two motbirs PW 13 Pritam and PW 14 Sri Ram have clearly stated that no such recoveries were made before them at the instance of accused Hukma. Though no enmity has been pointed out against the investigating officer PW 19 Ratan Singh, but it would be unsafe to rely on his statement as being interested in the prosecution case. There is another circumstance not to believe PW 19 Ratan Singh inasmuch as he has made recoveries of Articles at the instance of Gulab accused also. Ex. P 30, which is the recovery memo of Articles recovered at the instance of accused Gulab, contains the name of two motbirs Ramdayal and Babu Lal. There are no signatures of Ramdayal on Ex. P 30 and he is a highly interested witness being brother-in-law (DEVAR) of deceased Mathuri. Babu Lal has not been examined. The recovery has been made at village Hussainpur which is at a distance of 15 miles from Baroli. Ramdayal is a resident of Baroli and no witness of Hussainpur is there as motbirs though recoveries were made at Hussainpur. That apart, the presence of Ramdayal and Babu Lal at Hussainpur becomes highly doubtful as according to PW 18 Ramdayal he was taken by the Sub-Inspector from the market of Bari in a truck. On the other hand, PW 19 Ratan Singh in this regard clearly stated that he had not taken Ramdayal and Babu Lal from Bari but both these persons had met him in the village. In view of these circumstances no reliance can be placed on such recoveries alleged to have been made at the instance of the accused-appellants. 17. On the other hand, PW 19 Ratan Singh in this regard clearly stated that he had not taken Ramdayal and Babu Lal from Bari but both these persons had met him in the village. In view of these circumstances no reliance can be placed on such recoveries alleged to have been made at the instance of the accused-appellants. 17. In our view, the prosecution has failed to prove its case beyond reasonable doubt and the accused-appellants are entitled to the benefit of doubt. 18. In the result, this appeal is allowed, the judgment of learned Additional Sessions Judge No. 3. Dholpur, dated April 7, 1983, is set aside and both the accused-appellants are acquitted of all the charges levelled against them. The accused-appellants are in jail as such they are directed to be released forthwith in case they are not required in any other case.Appeal allowed. *******