JUDGMENT 1. - These two appeals : one by the State and the other filed by Mst. Pani & ors., arise out of the same judgment delivered by the Sessions Judge, Pali in Sessions Case No. 23 of 1972 : State of Rajasthan v. Prithvisingh & three others , whereby accused Prithvisingh and Budhiya have been acquitted of the offences under sections 302, 454 and 380 I.P.C. and accused Mst. Pani and Mrs. Jadav have been acquitted of the offences under s. 302 read with s. 109 I.P.C. and S. 380 read with s. 109 I.P.C. and s 554 read with s. 109 I.P.C. & 457 I.P.C. However, all the accused-persons have been held guilty of the offence under s. 411 I.P.C. Mst. Jadav has been given the benefit of the Probation of Offenders Act, whereas the p remaining three accused persons have been sentenced to three years rigorous imprisonment. The State has filed appeal against the acquittal of the accused-persons from the offences under s. 302 and s. 302 read with s 109. and sections 454, 457, 380, 454/109 & 380/109 I.P.C. whereas Mst. Pani, Mst. Jadav and Prithvisingh have filed this appeal against their conviction under s. 411, I.P.C. States appeal I was not admitted against Mst. Pani and Mst. Jadav and, therefore, States appeal stands only against Prithvisingh and Budhiya. 2. The facts of the case, briefly stated are : that Mst. Dakhu wife of Dhanraj, resident of Auwa was living in her own house as a widow. She however, took Amolak son of Birdichand in adoption. Amolak and his family were not living with her and he was doing his business at Bangalore. Mst. Dakhu engaged herself in money-lending trade. She used to lend money to the villagers on their pledging silver and gold ornaments with her. She was seen alive on October 30, 1971. On October 31, 1971, it is alleged that P.W. 1 Vasudev, Government Vaidya by profession, posted at Auwa saw accused Prithvisingh, Budhiya and Mst. Jadav entering the house of Mst. Dakhu. Thereafter, he went inside his own house. When he was on his way to his Aushdhalaya, he found the outer door of the I A Dakhus house locked. It was found locked till the morning of 1st November, 1971 On the morning of November 1, 1971, when he saw the main door of deceased Dakhus house open, he called Mst. Thereafter, he went inside his own house. When he was on his way to his Aushdhalaya, he found the outer door of the I A Dakhus house locked. It was found locked till the morning of 1st November, 1971 On the morning of November 1, 1971, when he saw the main door of deceased Dakhus house open, he called Mst. Dakhu but there was no response. On this, he informed Mst. Shanti step-mother of Amolak, adopted son of Mst. Dakhu that the gate of Dakhu's house is open but she has not given any response to his call. Mst. Shanti also cried out her name but there was no response from inside the house. Both of them, therefore, became suspicious. They peeped into the house and found all the doors of Dakhus apartments open and the belongings of the house scattered. They then brought it to the notice of Shri Parasmal, who is a neighbour of Mst. Dakhu. Parasmal too peeped into the house and he also found the same situation. He then went and informed the father-in-law of Amolakchand, i.e. Raj Mal son of Shri Surajmal. Rajmal immediately accompanied Parasmal and they both came to the house of Mst. Dakhu. Its main gate was open. On entering her house, they found the or a and the other rooms of the house unlocked and open. When they went further, they found that Mst. Dakhu was lying dead on the right-hand side of the Sal. Both her hands were tied with a rope and her legs were tied with her own Odhana and her mouth was also gagged with her Odhana. They, therefore, concluded that somebody has ransacked Mst. Dakhus house and has killed her. Therefore, Rajmal lodged a written report marked Ex. P 1 at Police Station, Auwa. A case under S. 302 I.P.C. was registered. The police inspected the site and prepared the site inspection memo Ex. P. 2 and the site inspection plan Ex. P.3. Panchnama of the dead-body was conducted, which has been marked Ex. P. 4. The blood stained cloths found on the body of Mst. Dakhu, were taken in possession by police and the seizure memo has been marked Ex. P. 5. The autopsy on the dead body of Mst. Dakhu was conducted, which has been marked Ex. P. 20. After the autopsy, the dead body was handed over to Shri Rajmal. P. 4. The blood stained cloths found on the body of Mst. Dakhu, were taken in possession by police and the seizure memo has been marked Ex. P. 5. The autopsy on the dead body of Mst. Dakhu was conducted, which has been marked Ex. P. 20. After the autopsy, the dead body was handed over to Shri Rajmal. The memo, handing over the dead body of Mst. Dakhu, has been marked Ex. P. 6. The police recorded statement of certain witnesses and came to the conclusion that Prithvi Singh of Desalsar who is son-in-law of Mst. Pani, Mst. Jadav wife of Prithvisingh and daughter of Mst. Pani and Budhiya belonging to Auwa were involved in the crime. They, therefore, arrested Budhiya, Jadav and Pani on 10th November, 1971. Prithvisingh was, however, found moving in suspicious circumstances in the market of the village Gangashahar District Bikaner. This attracted attention of one Govindram constable, who informed about Shri Prithvisingh to the Head Constable. Thereafter, accused Prithvisingh was arrested and on his search, number of golden and silver ornaments were recovered from the bag carried by him as also from his person. A rapat to this effect was recorded in the Rojnamcha of the Thana marked as Ex. P. 72. The ornaments recovered from the possession of accused Prithvisingh were taken into possession by the Police vide seizure memo Ex. P. 73 and the arrest memo of the accused Prithvisingh has been marked Ex. P. 197. The arrest memos of Budhiya, Mst. Pani and Mst. Jadav have been marked Ex. P. 154 to Ex. P. 156 respectively. All these accused persons gave information about the recovery of the ornaments from their possession. These informations memos have been marked as Exs. P. 157 to Ex. P. 159. Ex. P. 157 relates to the information given by Budhiya. Ex. P. 158 relates to the information given by Mst. Pani and Ex. P. 159 relates to the information given by Mst. Jadav. On the information of accused Budhiya, certain gold and silver ornaments weighing about 5 Kg. and 95 gms. were recovered from his Padva from below the stone Ghatti. The recovery memo has been marked as Ex. P. 7 and the site inspection memo of the recovery has been marked Ex. P. 8. On the information of Mst Pani, 5 kg. and 735 gms. and 95 gms. were recovered from his Padva from below the stone Ghatti. The recovery memo has been marked as Ex. P. 7 and the site inspection memo of the recovery has been marked Ex. P. 8. On the information of Mst Pani, 5 kg. and 735 gms. silver and gold ornaments were recovered from her own Padwa from below the earthern Kothi. Her recovery memo has been marked Ex. P. 9. The site inspection plan has been marked Ex. P. 10. On the information of Mst. Jadav, 6 kg and 180 gms silver and gold ornaments were recovered from the house of Mst. Pani, mother from below an earthern pot. The recovery memo and site inspection memo have been marked Ex. P. 11 and Ex. P. 12 respectively. All these ornaments recovered from these accused persons were sealed by the Police. These ornaments recovered from accused persons Budhiya, Mst. Pani and Mst. Jadav carried the pledge-chits attached to them. Those Chhitties were removed from those ornaments and in their place, certain other numbered chits were affixed to them for the facility of identification meaning thereby that it may be ascertained with ease as to whom those ornaments belonged. The chits which were removed from the ornaments recovered at the instance of Budhiya have been marked Ex. P. 55, Ex. P. 56, Ex. P. 64 to Ex. P. 68, Ex. P. 160 and Ex. P. 167. The chits which were put in their place have been marked Ex. P. 168 and Ex. P. 172. The chits which were removed from the ornaments recovered at the instance of Mst. Pani have been marked Ex. P. 52 to P. 54, Ex. 58, Ex. P. 63 and Ex. P. 183 to Ex. P. 189. The chits which were removed from the ornaments recovered at the instance of Mst. Jadav have been marked Ex. P. 46 to Ex. P. 51, Ex. P. 57, Ex. P. 63 and Ex. P. 190 to Ex P. 195. Accused Budhiya gave information about the recovery of one rope from the house of Bhoorsingh. That information has been marked Ex. P. 196, on the basis of which a long rope was recovered at his instance which has been exhibited as Article 63. It was seized vide seizure memo Ex. P. 17. Accused Prithvisingh removed all chits from the ornaments at Auwa. That information has been marked Ex. P. 196, on the basis of which a long rope was recovered at his instance which has been exhibited as Article 63. It was seized vide seizure memo Ex. P. 17. Accused Prithvisingh removed all chits from the ornaments at Auwa. He gave information about the recovery of those chits and the said information has been recorded in the information memo Ex. P. 198. On the basis of this information, the chithis Ex. P. 19 to Ex. P. 36 were recovered at his instance from below the Khejri-tree near the railway station, Auwa. Its seizure memo has been marked as Ex. P. 37. During the process of investigation, Birdhichand who is father of Amolak, adopted son of Smt. Dakhu presented two applications to the Police, which have been marked Ex. P. 75 and P. 76. 3. All the ornaments were got identified. The identification was conducted by Shri D.P. Sood, a Second Class Magistrate. The identification memos have been marked Exs. P. 13 to Ex.P.16, Ex. P.18, P.41, P.59 to P.62, P.70, P.77 and P.79. 4. One Narpatsingh was posted as S.H.O., Rani at that time. The Superintendent of Police, Pali directed him to go in search of accused Prithivisingh to arrest him. He went to village Desalsar and there, he got information that Inder Singh, who is son of Mst. Pani has posted one registered letter addressed to one Narayansingh Rajpurohit. On this information, he contacted the Post Master, Desalsar Shri Moolsingh (PW.7) Shri Moolsingh informed him that such a registered letter has been received by him whereupon he took that letter into his possess on in the presence of Motbirs vide recovery memo Ex. P. 40. That letter was opened then and there. It was contained in the envelope Ex. P. 39. The letter itself has been marked as Ex. P. 38. Indersingh also wrote one letter to his real maternal uncle Dalpatsingh Rajpurohit, who was then working as L.C. Police Chowki, Bhopalgarh in district Jodhpur. The police contacted Dalpatsingh Rajpurohit and recovered from him that letter. The letter and the recovery memo have been marked Exs. P. 80 and P. 81 respectively. Dalpatsingh gave reply Ex. P. 44 to the letter of Indersingh marked Ex. P. 80. The Police thought it fit to get these two letters examined. They seized two note books of Indersingh from the possession of Shantilal. The letter and the recovery memo have been marked Exs. P. 80 and P. 81 respectively. Dalpatsingh gave reply Ex. P. 44 to the letter of Indersingh marked Ex. P. 80. The Police thought it fit to get these two letters examined. They seized two note books of Indersingh from the possession of Shantilal. Teacher, Government Middle School, Auwa. These two note-books were seized vide Seizure memo Ex. P. 45. The note-books have been marked as Ex. P. 42 and P. 43. These two letters along with the two note-books were sent for expert examination to the hand writing expert Shri A. N. Ganorkar. Shri Ganorkar found that the writer of the letters Ex P. 38 and Ex. P. 80 and the writer of the note-books Ex. P. 42 and Ex. P. 43 is one and the same person. The expert submitted his report Ex. P. 82. It is based on the photographs Ex. P. 83 to Ex P. 116. Ex. P. 117 is the film roll of the above developed photographs. 5. After completion of the investigation, all the accused-persons were challaned in the court of learned Munsif Magistrate, Sojat. The learned Magistrate after holding the committal enquiry, charged accused Prithvisingh and Budhiya with the offences under sections 454, 302 and 380 IPC; accused Mst. Pani under s. 302 read with s. 109 and s. 411, I.P.C. and accused Mst. Jadav was charged with offence under s. 302 read s. 109 I.P.C., sections 457 and 380/109, I.P.C. 6. The learned Sessions Judge, however, charged the accused-persons as stated by us earlier. The pleas of the accused-persons were recorded. They did not plead guilty to the charges and claimed trial. The prosecution then examined as many as 72 witnesses. Statements of accused persons were recorded under s 313. Cr.P.C. They led no defence and hence after hearing the final arguments, the learned lower court decided the case as stated above. Aggrieved against the judgement of the learned lower court, the State and the accused-persons have preferred these appeals. 7. We have gone through the record of the case and have heard Mr. S. D. Rajpurohit, learned counsel for the accused appellants and Mr. L. S. Udawat, learned Public Prosecutor for the State. 8. The learned lower court did not believe the testimony of the prosecution regarding the coming in and going out of Prithvisingh from village Auwa. 7. We have gone through the record of the case and have heard Mr. S. D. Rajpurohit, learned counsel for the accused appellants and Mr. L. S. Udawat, learned Public Prosecutor for the State. 8. The learned lower court did not believe the testimony of the prosecution regarding the coming in and going out of Prithvisingh from village Auwa. It also did not believe the testimony of the prosecution witnesses regarding Budhiya, Jadav and Prithvisingh entering into the house of Mst. Dakhu, the deceased on the morning of October 31, 1971. It also did not believe the testimony of the prosecution witnesses that Budhiya and Prithvisingh were seen running from Kheenchiyon-ki-gali at about 11 A.M. on that very day. It also did not believe the testimony of the prosecution witness that Budhiya and Jadav were seen at the dead of night intervening between October 31, 1971 & November 1, 1971 in Sanchetiyon-ki-gali where Mst. Jadav was observed carrying on cement bag on her head. The evidence of prosecution witnesses regarding extra judicial confession was also held as not reliable. The evidence of prosecution regarding the recovery of letter Ex. P. 38 with its envelope Ex. P. 39, the letter written by Indersingh to his meternal uncle Dalpatsingh marked as Ex. P. 80 and its reply Ex. P. 44 word also not considered relevant to bring home the offence of murder against the accused-persons because Indersingh. who is the scribe of these letters has not been produced and therefore, the entire evidence regarding the recovery of these letters, so far as their contents were concerned was considered to be hearsay and, therefore, it was not used as a connecting link for the offence of murder. It, however, believed the recoveries made from the possession of accused-persons and, therefore, it held all the accused-persons guilty of offence under s. 411 I.P.C. Mst. Jadav was granted benefit of Probation of Offenders Act whereas the other three accused have been sentenced three years rigorous Imprisonment. Prithvisingh and Budhiya have already served out the sentences imposed on them and as such, they were immediately released. Mst. Pani only remained in custody for less than a year. Budhiya did not prefer any appeal against his conviction. Jadav was granted benefit of Probation of Offenders Act whereas the other three accused have been sentenced three years rigorous Imprisonment. Prithvisingh and Budhiya have already served out the sentences imposed on them and as such, they were immediately released. Mst. Pani only remained in custody for less than a year. Budhiya did not prefer any appeal against his conviction. The remaining three have filed this appeal against their conviction and sentence under s 411 I.P.C. where as the State appeal, as stated by us earlier, has been admitted only so far as accused Budhiya and Prithvisingh are concerned. 9. Now, we have to see how for the judgment of the learned lower court 4 can be sustained on the basis of the record. 10. First, we shall take up the offence under section 302 I.P.C. 11. It is the admitted case of both the parties that nobody has witnessed the murder of Mst. Dakhu from his own eyes. The entire case of the prosecution is based on circumstantial evidence. Now we have to see whether the chain of circumstances established by the prosecution are sufficient to bring home the guilt to these two accused persons viz., Prithvisingh and Budhiya so far as the offences under sections 302, 454 and 300 I.P.C. are concerned. The learned Public Prosecutor has vehemently submitted that it does. He has argued that the learned lower court has wrongly discarded the prosecution evidence and has unnecessarily acquitted the accused-persons. The first important link in the chain of circumstances is the evidence of P. W. 1, Vasudeo Sharma, Vaidhya. He lives in a house, just opposite to that of deceased Mst. Dakhu. He is a close neighbour and is on very friendly terms with Mst. Dakhu. He has stated that he saw Mst. Dakhu alive on October 30, 1971. He had talked with her on 30th night before he went to sleep. In the morning of October 31, 1971 at about 8.00 A. M., when he was almost ready to proceed for the Aushdhalaya and was sitting on his chabutari, he saw Budhiya, Mst. Jadav and Prithvisingh coming in the lane and entering the house of deceased Dakhu. He then went inside his house, got himself dressed and got ready to proceed to the hospital when he came out of the house, he saw that outer doors of the house of Mst. Dakhu's were locked. Jadav and Prithvisingh coming in the lane and entering the house of deceased Dakhu. He then went inside his house, got himself dressed and got ready to proceed to the hospital when he came out of the house, he saw that outer doors of the house of Mst. Dakhu's were locked. When he returned from the Aushdhalaya at 11A.M. at that time also the doors of Mst. Dakhu's house were locked. Throughout the day the house of Mst. Dakhu was found locked. On the next day i. e. November 1, 1971, when he woke up in the morning he found that door of Mst. Dakhus house was open slightly. He thought that she might have gone somewhere and has returned today morning. He, therefore, called out the name of Mst. Dakhu, but it evoked no response. He then, informed Mst. Shanti Bai wife of Birdhichand and step mother of Amolak, given in adoption to Mst. Dakhu. She too called out the name of Mst. Dakhu from outside, but she too got no response. She then peeped inside the outer gate of her house and then called Parasmal, who is an other neighhour of Mst. Dakhu. On one side of Mst. Dakhu's house is situated the house of Mst. Shanti wife of Birdhichand and on the other side Parasmal lives with his family. Parasmal also called out the name of Mst. Dakhu but that too evoked no response. They, then, became suspicious that somebody has committed theft in the house of Mst. Dakhu and so, Parasmal called Rajmal who is father-in-law of Amolak adopted son of Mst. Dakhu. When Rajmal came, he along with Parasmal entered into the house of Mst. Dakhu and found that all the doors inside the house were open; things inside were all scattered and Mst. Dakhu was found dead with hands and legs tied and the mouth gagged. This witness has, therefore, been produced to prove that he saw Mst. Dakhu alive on the night of October 30, 1971; he saw accused Budhiya, Prithvi Singh and Mst. Jadav entering the house of. Mst. Dakhu on the morning of October 31, 1971 and thereafter, when he came out of his house for going to Aushdhalaya, he found the outer gate of Mst. Dakhu locked and thereafter, it was found locked throughout the day. Thus, he is the man, who has seen Prithvisingh. Budhiya and Mst. Jadav entering the house of. Mst. Dakhu on the morning of October 31, 1971 and thereafter, when he came out of his house for going to Aushdhalaya, he found the outer gate of Mst. Dakhu locked and thereafter, it was found locked throughout the day. Thus, he is the man, who has seen Prithvisingh. Budhiya and Mst. Jadav entering the house of Mst. Dakhu and he is also the person, who last saw deceased Dakhu alive. At one stage, on cross examination, he even stated that on the morning of 31st October, 1971 also, he saw Mst Dakhu in the lane. Thus, it was he, who has last seen her alive When cross-examined, he has stated that the day Budhiya entered the house of Mst. Dakhu deceased, he only knew him by face and not by name, who disclosed him the name of Budhiya, he does not remember. He came to know the name of Budhiya before his statement was recorded by the police, but how he came to know and by whom he came to know about it, he is unable to say. So far as Prithvisingh is concerned, he did not know his name from before. He came to know the name of Prithvisingh only after the occurrence has taken place. He did not name Prithvisingh when his statement was recorded by the police. He only stated to the police that he saw two persons and one lady entering the house of Mst. Dakhu. Later he has stated that he did take the name of the lady, but he did not know the name of Prithvisingh. When he was asked as to how he knew the lady, he stated that he had no occasion to talk with Mst. Jadav but she used to come near the Hospital to leave her cattle and so his peon informed him that she is Mst. Jadav. It is not known why he became so much interested in knowing the name of Mst. Jadav, a lady who came to leave her cattle from his peon. The peon, who informed him about the name of Mst. Jadav, has not been examined, rather he has not been named. In his police statement, he has category called stated that he knew the accused persons from before. Even in his statement before the lower court, he has stated that Budhiya, Mst. Pani and Mst. The peon, who informed him about the name of Mst. Jadav, has not been examined, rather he has not been named. In his police statement, he has category called stated that he knew the accused persons from before. Even in his statement before the lower court, he has stated that Budhiya, Mst. Pani and Mst. Jadav belonged to Auwa and Prithvisingh has been seen by him several limes at Auwa and, therefore, he knew them from before, but his testimony stands totally shattered in the cross-examination. If he did not know the name of Prithvisingh and Budhiya from before, it is strange, how he got them recorded in the police statement and the story about knowing the name of Mst. Jadav is also not free from doubt and, therefore, we are of the opinion that the testimony of this witness has rightly been discarded by the learned lower court. On the basis of this statement, it cannot be held that the accused Prithvisingh, Budhiya and Mst. Jadav have definitely entered the house of Mst. Dakhu in the morning of October 31, 1971. 12. It was next argued by the learned Public Prosecutor that P. W. 8 Mishrilal has stated that he knew Budhiya and Prithvisingh from before. About one and a half years before, on Kartik Sud 13, when he went to one Poonama Nai for a hair cut, he called out the name of Poonama from outside his house but he was not there. When he was standing outside the house of Poonama in the lane, he saw accused Budhiya and Prithvisingh running from Khichiyon-ki-gali. On one side of the gali is the house of Mst. Dakhu, deceased and the house of Bhoorsingh Khichi is situated just behind the home of Mst. Dakhu. He asked both of them as to why were they running, but they did not reply and ran away without giving any reply to his question. Budhiya was wearing Dhoti and Bandha at that time and Prithvisingh was wearing brown pant and red-shirt. He was carrying one bag in his hand. He then, went to his own house. His statement was recorded on November 2, 1971 at about 12 noon. The fact that Mst. Dakhu has been murdered became known to the entire village in the morning of November 1,1971. He was carrying one bag in his hand. He then, went to his own house. His statement was recorded on November 2, 1971 at about 12 noon. The fact that Mst. Dakhu has been murdered became known to the entire village in the morning of November 1,1971. However, this man kept mum about the fact that he saw these two persons running from Khichiyon-ki-Gali. He did not disclose this fact to anybody including Shri Rajmal in the village till he was examined by the police in spite of the fact that he came to know about the murder of Mst. Dakhu in the early hours of the morning of November 1, 1971. This conduct on his part of keeping mum for such a long time, makes his testimony unreliable. It is also strange how police came to know of his name and how it came to be known to them that he has seen these two accused persons running at 11 A.M. on 1st November, 1971 in Khichiyon-ki-Gali. Under these circumstances, the probative value of his testimony is Post. We are, therefore of the opinion that the learned lower court was justified in discarding the testimony of this witness. Thus, this link in the chain is also weak and cannot be used to connect the accused persons with the offence of murder. 13. The third connecting link in the chain is based on the testimony of P.W. 2 Kewalnath, P. W. 3 Ramsingh. P.W. 59 Pukhiya and P.W. 60 Daliya. P.W. 2 Kewalnath has stated that he is co-sharer in Bera Kharoda, which is situated near Auwa Railway Station. The engine of this well went out of order and, therefore, he called Ramsingh Mistry to repair it. This well is situated towards the west of village Auwa. When they started from the village Auwa and reached near the well of Radha Vallabh, they saw accused Prithvisingh, who is son-in-law of Mst. Jadav going towards the village from the side of the railway station. Ramsingh and Pukhiya were with him. They had no talk with him. Pukhiya, however, told them that he saw this man going from the side of village towards the railway station before half an hour. However, no notice was taken of this fact and they went to the well. At about 12.00 in the noon. Ramsingh and Pukhiya were with him. They had no talk with him. Pukhiya, however, told them that he saw this man going from the side of village towards the railway station before half an hour. However, no notice was taken of this fact and they went to the well. At about 12.00 in the noon. Ramsingh told him to bring some labourers and when he came with labourers he saw Prithvisingh again going towards the side of the station and he mentioned this fact to Ramsingh, when he reached the well.He did disclose the date of these happenings. But as per him, this happened somewhere in the month of Kartik after about 5-6 months of the marriage of Prithvisingh, with Mst. Jadav. 14. P. W. 3 Ramsingh has stated that Mst. Dakhu died in the second half of the Hindi month of Kartik. He heard about it in the evening and on that day in the morning, he went with Kewalnath to the Kharoda well to repair an engine. When they were going towards Kharoda well they saw Prithvisingh, who is son-in-law of Mst. Pani in the way near the well of Radhavallabh. He was coming towards the village from the side of Station. At about 12.00 noon, when Kewalnath came with two labourers, he told him that the man who met them in the morning was again seen going towards the railway station. Mst. Dakhu died somewhere on October 31, 1971. The fact of her death came to be known to the villagers for the first time in the morning of November 1, 1971. This witness came to know about it in the evening of November 1, 1971. Thus, it cannot be inferred from his statement that he along with Kewalnath & Pukhiya went to repair the engine at Kharoda well on the morning of Novmber 1, 1971 and it was at that time that he saw Prithvisingh going towards the village from railway station. Auwa. He has stated that he know Prithvisingh from before. In the cross-examination, he has categorically admitted that he came to know about the death of Mst. Dakhu on the next day evening and, therefore, when Mst. Dakhu has died on October 31, 1971 and he came to know about it in the evening of 1st November, 1971, he must have gone to the Kharoda-well in the morning of November 1, 1971. Dakhu on the next day evening and, therefore, when Mst. Dakhu has died on October 31, 1971 and he came to know about it in the evening of 1st November, 1971, he must have gone to the Kharoda-well in the morning of November 1, 1971. When testimony of Ramsingh is read, in conjunction with the testimony of Kewalnath, it can safely be held that both these persons went to the well in the morning of November 1, 1971 and not in the morning of October 31,1971. It is strange why they were interested in watching the movements of Prithvisingh. They could observe him coming from the side of village, but there was no occasion for Kewalnath to have brought this fact to the notice of Ramsingh that he saw Prithvisingh going from the side of village to the side of station at about 12 noon, Prithvisingh is not an important person whose movements should be watched and should be conveyed to the persons unconcerned. 15. P. W. 59 Pukhiya has stated that the engine of Kharoda well had gone out of order number of times. On one occasion, his co-sharer called Ramsingh : Mistry to repair the engine. He went to call Ramsingh. At that time, his brother Daliya was also with him. However, later, he stated that Daliya accompanied him when he was coming with Ramsingh towards the well. He did not say that he saw Prithvisingh near the well of Radhavallabh coming from the side of station and going towards the village when they were going from the village to their Kharoda-well accompanied by Ramsingh. He has been declared hostile and in the cross-examination, he has categorically stated that he did not know Prithvisingh and, therefore, he was unable to say whether Prithvisingh was found going from the side of the station towards the side of the village on that day. 16. P.W. 60 Daliya, who is brother of Ramsingh, also turned hostile. He has admitted that he is short of sight and therefore, he was unable to identify any person. Ramsingh told him that a person like son-in-law of Mst. Pani was going. It was told to him when they were near the well of Radhavallabh. This witness also has no personal knowledge about the movements of Pritvisingh. He has admitted that he is short of sight and therefore, he was unable to identify any person. Ramsingh told him that a person like son-in-law of Mst. Pani was going. It was told to him when they were near the well of Radhavallabh. This witness also has no personal knowledge about the movements of Pritvisingh. Even if they have seen Prithvisingh on November 1, 1971, this fact does not connect Prithvi Singh with the crime, which took place in the morning of October 31, 1971. The learned lower court, in our opinion, was, therefore, justified in discarding this circumstantial evidence also. 17. The next circumstance which has been pressed into service by the learned Public Prosecutor is based on the testimony of P.W. 65 Pukhsingh. He has stated that before two years in the night of Kartik Sud 12, at about 12 or 1 in the night, he came out of his house to ease himself because he was suffering from diarrhoea. He saw Mst. Jadav and Budhiya going from Sanchetiyon-ki-gali to wards water reservoir. Mst. Jadav was carrying one Katta on her head. When he asked them who they were, they immediately told hi.n that they are Jadav and Budhiya. On further enquiry, it was disclosed that they went to fetch Bajra and so they were returning back with Bajra. His statement was also recorded by the Police on November 2, 1971. He has stated that till his statement was recorded by the Police, he did not mention about this fact to any body that he has seen these two persons in the night of Kartik Sudi 12. For the first time, he disclosed this fact to the police when the police-wallahs came to call him for recording of his statement. When cross-examined, he was unable to disclose the date of his marriage and the dates of birth of his four children. When he too came to know about the death of Mst. Dakhu on November 1, 1971, why did he keep mum till he was examined by the police. No explanation to this effect has been offered. When the murder of Mst. Dakhu came to his knowledge, he should have disclosed this fact to some responsible persons of the village or at least he should have brought this fact to the notice of Rajmal. No explanation to this effect has been offered. When the murder of Mst. Dakhu came to his knowledge, he should have disclosed this fact to some responsible persons of the village or at least he should have brought this fact to the notice of Rajmal. His conduct in keeping mum till he was examined by the Police castes serious reflection on his reliability and, therefore, in our opinion, the learned lower court was justified in concluding that the testimony of this witness is not free from doubt and hence it cannot be pressed into service to fasten the gilt of murder on accused Mst. Jadav and Budhiya. 18. The next important circumstance canvased before us relates to the extra judicial confession. It is alleged that this extra judicial confession was made by Smt. Pani and accused Budhiya to P W 7 Chenkaran, who is the Sarpanch of Gram Panchayat Auwa. Chenkaran has stated that on November 2, 1971 Budhiya and Panki came to his house at about 9 P. M. Budhiya's mother Kesi was also with them. Kesi called him down-stairs. When he came down-stairs, Mst. Kesi told him that the police has called her son Budhiya and Mst. Pani in connection with one murder of Mst. Dakhu and so he should help them because they are the chowkidars of the village. When he asked what has happened, Budhiya told him that on Kartik Sudi 13, he was sitting in the bouse of Mst. Pani and Prithvisingh was also sitting there. Mst. Pani told them that Mst. Dakhu wife of Dhanraj is quite an old lady and is possessed of lot of wealth. There is nobody to weep after her and so, if they kill her, they can get lot of wealth. Budhiya further told that on this he accompanied Prithvi Singh and Mst. Jadav to the house of Mst. Dakhu. There, he told Mst. Dakhu that this Privisingh Master was in need of money and therefore, he was ready to pledge golden Jhumka with her. Mst Dakhu then came out of the kitchen. At that time, Mst. Jadav went outside and closed and locked the main gate of Mst. Dakhu's house from outside. On this, Mst. Dakhu tried to cry out, but he and Prithvisingh gagged her mouth with her own `Odhana' and then they tried to throttle her. Mst Dakhu then came out of the kitchen. At that time, Mst. Jadav went outside and closed and locked the main gate of Mst. Dakhu's house from outside. On this, Mst. Dakhu tried to cry out, but he and Prithvisingh gagged her mouth with her own `Odhana' and then they tried to throttle her. She tried to resist and so they tried her hands with a rope and her legs with her Odhna and dragged her to the Sal took out the bunch of keys tied to her Kandora and after searching her belongings, a large quantity of gold ornaments and some silver ornaments and currency notes were taken in possession by Prithvisingh. He put certain gold and silver ornaments in a cement bag also. They then found one rope of the Dol, which was quite long. They broke the iron bars of the Medhi and with the help of this rope, they climbed in the house of Bhoorsingh and made good their escape. Prithvisingh told him whatever other ornaments are lying there they may bring them in the night and may distribute amongst themselves. He further told that he has already taken his share and they may bring the rest of the ornaments in night and distribute them amongst themselves. When this fact was brought to the notice of Mst. Pani, she also told that they should go there in the night and bring the ornaments. On her advice, he and Jadav went to the house of Mst. Dakhu in the night and brought the remaining ornaments and left the main gate or Mst. Dakhus house open. P. W. 7 Chenkaran told them that they have done a very bad thing whereupon Mst. Pani told him. It was further told by him that the ornaments brought in the night were distributed in three shares and one each was taken by Mst. Pani, Mst. Jadav and Budhiya. He has further stated that he then told them that he has been recently operated and, therefore, he was unable to move out and so God will help them. It is alleged by him that on this, they went away. He has further stated that Mst. Pani has earlier committed theft of Aadia in the house of Mohansingh. 19. He has further stated that he then told them that he has been recently operated and, therefore, he was unable to move out and so God will help them. It is alleged by him that on this, they went away. He has further stated that Mst. Pani has earlier committed theft of Aadia in the house of Mohansingh. 19. Learned counsel for the accused-appellants has attacked this testimony on many grounds, Firstly, he has stated that this witness is a man of dubious character. He has admitted that for the purpose of getting payment of money, he has identified a dead person and so no reliance should be placed on such a witness. As per him, this witness has admitted in his statement before the trial court that he has written A to B in Ex. D. 5 and has further admitted that he has appended his signatures C to D below it. 20. It was next argued that this witness has admitted in reply to a court question that before Budhiya & Mst. Pani have admitted their guilt before him and he was in know of the fact that Mst. Dakhu has been murdered. He is the Sarpanch of the village for the past about 7-8 years. He is also a retired Head Constable. As a responsible person of the village as a law knowing citizen being a retired Head Constable it was his duty to have brought this fact to the notice of police specially when the police chowki is situated in village Auwa itself. It was an information rather a confession of a ghastly cognizable crime, and, therefore, he was duty-bound to have informed the police about it. 21. There is nothing on the record to show that during those days, he was not moving out. P. W. 4 Rajmal has stated that he met him on 1st and 2nd November both, but he is not certain whether he met him on 3rd also, which clearly shows that he was moving out in those days. Even if for the sake of argument, it is admitted that he was not moving out during those days, then too, his wife was there and he could have sought the help from anybody to inform the police. Even if for the sake of argument, it is admitted that he was not moving out during those days, then too, his wife was there and he could have sought the help from anybody to inform the police. He being a Sarpanch, could have called his Secretary or anybody else from the village to inform the Head Constable He being a Sarpanch for the last 7-8 years and further being a retired Head Constable of the police, he knew the importance and legal implications of this confession. Dr. Champalal who operated him came to ask about his welfare on November 3, 1971. He could have told Dr. Champalal to inform the police but he kept mum. He has stated that he went to the police chowki, in the evening on 4th November, 1971 and informed about this extra judicial confession. This conduct on his part to keep mum for two days, specially when he knew about the murder of Mst. Dakhu and further taking into consideration the fact that he was a responsible officer i.e. Sarpanch of the village and a retired Head Constable, it was a most unexpected conduct on his part to have kept silence for two days. This makes his entire testimony regarding extra judicial confession, highly unreliable. As a Sarpanch and as a retired Head Constable, it was his duty to have immediately brought this fact to the notice of the Police. Even if he was not moving out he had the means to do so. He should not have allowed Budhiya and Mst. Pani to leave his house and should have called the Police then and there. We are, therefore, convinced that the learned lower court was justified in brushing aside the testimony of this witness. 22. The result is that the evidence regarding the extra judicial confession, which happened to be a very important link in the chain of circumstances cannot be availed by the prosecution to fasten guilt on the accused person. 23. The next important circumstance, canvassed before us by the learned Public Prosecutor pertains to the evidentiary value of Ex. P. 80 and Ex. P. 38. Ex. P. 38 appears to have been written on behalf of Mst. Pani by Indersingh and Ex. P. 80 has been written by Indersingh himself from his own side to his maternal uncle. 23. The next important circumstance, canvassed before us by the learned Public Prosecutor pertains to the evidentiary value of Ex. P. 80 and Ex. P. 38. Ex. P. 38 appears to have been written on behalf of Mst. Pani by Indersingh and Ex. P. 80 has been written by Indersingh himself from his own side to his maternal uncle. The prosecution has examined P. W. 64 Narpatsingh, S. H. O. Rani, P.W. 46 Gordhan and P. W 47 Moolsingh regarding the recovery of Ex. P 38 and Ex. P. 39. Ex. P. 80 and Ex. P 81 have been proved by P. W 70 Dalpatsing as also by the S. H. O. P. W. 72 Chensing. P. W. 47 Mool singh has admitted that Ex P. 38 was received by him in an envelope marked Ex. P. 39 and it was a registered letter sent from the Branch Post Office, Auwa on November 4, 1971 to the Branch-Post, Desalsar. As Narayansingh could not be found, the registered letter could not be delivered to him. Later the police informed him that they are in need of this letter. The police officer called him at the residence of Bhera Ram. There the scribe of this letter Inder Singh was also present with the police officer. They recovered Ex. P. 38 vide Ex. P. 40, which bears his signatures C. to D Ex P. 39 was opened and it contained the letter Ex. P. 38 which is the subject-matter of controversy before us. His testimony has been fully corroborated by P.W.46 Govardhan. P.W. 64 Narpatsingh also supports the testimony of Moolsingh with this exception that Indersingh did not accompany him on that day. Actually, he has stated that he did not know Indersingh. whereas Govardhan and Moolsingh both have stated that Indersingh did accompany the S.H.O. and as per Moolsingh the S H. O. slapped Indersingh after the recovery of this letter. Be that as it may, this letter has been recovered from the possession of Shri Moolsingh, who is Sub-Post Master and therefore, genuineness of the recovery cannot be challenged. 24. P. W. 70 Dalpatsingh has categorically stated that Indersingh is his own nephew. He has written Ex. P. 80 to him. It was seized by S.H.O Chensingh vide seizure memo Ex. P. 81 from him. Ex. P. 44 is the letter which was given in reply by him to Indersingh. 24. P. W. 70 Dalpatsingh has categorically stated that Indersingh is his own nephew. He has written Ex. P. 80 to him. It was seized by S.H.O Chensingh vide seizure memo Ex. P. 81 from him. Ex. P. 44 is the letter which was given in reply by him to Indersingh. A searching cross-examination has been made with this witness, but nothing came out which could shatter his testimony given in examination-in-chief and, thus, we are of the opinion that the prosecution has been able to prove that Ex. P. 80 has been written by Indersingh to Shri Dalpatsingh. 25. P. W. 69 Achut Narainrav Genorkar, who is handwriting expert, has proved that these two letters have been written by Indersingh, on the basis of the comparison of these two letters with the note-books supplied to him. 26. Learned counsel for the accused-appellants however, argued that even if it is admitted that these two letters had been written by Indersingh, then too, the evidence of these two persons only proves that these two letters Exs. P. 38 and P. 80 are genuine; they have been written by Indersingh, but this evidence is not sufficient to prove the contents of these letters. It was the duty of the prosecution firstly to have obtained this letter Ex. P. 38 along with envelope Ex. P. 39 from the Post-Master with the permission of the District Magistrate or any other competent officer of the Postal Department. They did not do so and, therefore, the seizure is illegal and secondly, it was their bounden duty to have examined Indersingh. who is the scribe of these letters. It was he alone, who could have explained why he wrote these letters and on the basis of what information, he wrote the contents of these letters. It was he alone who could have thrown light on the fact whether any information or instructions were given to him by his mother or sister for writing these letters or whether he wrote them of his own accord ? Ex. P. 38 appears to have been written at the instance and on behalf of Mst. Pani, but it was only Indersingh. who could have made it clear whether he wrote it on the information of Mst. Pani or anybody else. The mere proof of genuineness of the scribe does not prove the contents of these letters. Ex. P. 38 appears to have been written at the instance and on behalf of Mst. Pani, but it was only Indersingh. who could have made it clear whether he wrote it on the information of Mst. Pani or anybody else. The mere proof of genuineness of the scribe does not prove the contents of these letters. In this respect, our attention was drawn to a decision reported in Re. B, An Advocate. Ghaziapur (A.I.R. 1935 AH.1023) wherein it was observed as under : "In our opinion, statement oral or written, by a person not called as a witness comes under the general rule of hearsay. Learned counsel alluded to S. 47, but that section deals with the question arising when the court has to form an opinion as to the person by whom any document was written or signed. It is not a question here of whether Harnandan Singh wrote this entry or not. It is a question of whether the statement in the entry is true or not. That like any other statement can be only proved by legal evidence." Our attention was also drawn to Judah v. Isolyne Bose, A.I.R. 1945 P.C. 174 , wherein their Lordships of the Privy Council, observed as under : "A letter written by a witness is no evidence of the facts therein stated and the only legitimate use to which the letter can be put would be to use it in cross-examination for the purpose of discrediting the witness if what he had written was inconsistent with his evidence." Their Lordships have categorically held in the aforesaid case that the letter is no evidence of the facts therein stated and then again the contents of the telegram are not evidence of the facts stated in them. 27. Our attention was also drawn to a decision rendered in J. D. Jain v. Management, State Bank of India (A.I.R. 1982 S.C. 673) , wherein in para 10 of the judgment, it was observed : "The Privy Co. in the case of Subramaniam v. Public Prosecutor. (1956) 1 W.L.R. 965 observed "Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. in the case of Subramaniam v. Public Prosecutor. (1956) 1 W.L.R. 965 observed "Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and inadmissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made." These rulings clearly bring out the fact that even if it is proved that the letter has been written by Indersingh, it furnishes no proof of the facts contained therein and the contents cannot be utilised to fasten the guilt on the accused-persons. It has been written in these letters that Prithvisingh and Budhiya have killed the old lady and so they are being interrogated by the police. This evidence, unless it is proved by examining Indersingh or by any other method, it cannot be utilised against those persons. It is not known why the prosecution has not examined Indersingh. He could have been examined to find out why he wrote those letters and on what information, did he write the contents of those letters. This failure of the prosecution casts serious reflection on the fairness of the investigation. It is true that he is son of Mst. Pani and brother of Mst. Jadav, but inspite of it, the prosecution could have interrogated him. When his maternal uncle has categorically admitted that this letter was written by his own nephew then he could have been confronted with this fact and explanation could have been obtained from him as to why did he write that letter and at whose instance. We are, therefore, of the opinion that the learned lower court was justified in coming to the conclusion that in the absence of any proof of the contents of the letters Ex. P. 38 and P. 80, these contents cannot be pressed into service by the prosecution for fastening the guilt on these two accused-persons viz., Prithvisingh and Budhiya. We are, therefore, of the opinion that the learned lower court was justified in coming to the conclusion that in the absence of any proof of the contents of the letters Ex. P. 38 and P. 80, these contents cannot be pressed into service by the prosecution for fastening the guilt on these two accused-persons viz., Prithvisingh and Budhiya. It is true that the S.H.O. Narpat Singh obtained the letter Ex. P. 38 with its envelope Ex. P. 39 without permission of the District Magistrate or any other competent postal authority, but that by itself is no bar to the admission of a relevant piece of evidence. Even if a particular piece of evidence has been illegally or improperly obtained, that will not be a bar to its admissibility, if it is otherwise relevant and its genuineness has been proved.In this respect, two decisions of the Hon'ble Supreme Court have been referred to us. 28. In Magraj Patodia v. R. K. Birla (AIR 1971 S. C. 1295) , their Lordships laid down as under : "But the fact that the document was procured by improper or even illegal means will not be a bar to its admissibility if it is relevant and its genuineness proved. But while examining the proof given as to its genuineness the circumstances under which it came to be produced into court have to be taken into consideration." The other decision of the Supreme Court to be noticed in this respect is R. M. Malkani v. State of Maharashtra (A.I.R. 1973 S. C. 157) wherein their Lordships have been pleased to observe : "Even if evidence is illegally obtained it is admissible. The Court will take care in two directions in admitting such evidence. First, it will find out that it is genuine and free from tampering or mutilation. Secondly, it may also secure scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge." Both these authorities of the Supreme Court clearly lay down that even if a piece of evidence has been illegally or improperly obtained, if it is a relevant piece of evidence and it can be taken into consideration by the Court. Thus, the evidence of Shri Narpatsingh and others cannot be brushed aside simply because the letter Ex. P. 38 was obtained illegally or improperly from the Sub-Post Master, Desalsar and to this extent the objection of the learned counsel for the accused-appellants is overruled as unsustainable. 29. No other point was canvassed before us by the learned Public Prosecutor, so far as the offences under sections 302 and 454 & 300 I. P. C are concerned. The recovery of the ornaments has been affected many days after the occurrence. When the evidence regarding entry has been disbelieved and the other circumstances on the basis of which the accused could have been held guilty of the offence under s. 302 I.P.C. have rightly been discarded by the learned lower court, we are of opinion that the learned lower court was justified in acquitting the accused-persons of the offence under s. 302, 454 and 380 I.P.C. 30. As regards the offence under s. 411 I.P.C. is concerned, accused Budhiya has preferred no appeal. Three accused persons viz., Prithvisingh, Mst. Pani and Mst. Jadav have preferred this appeal. Mr. Rajpurohit, appearing for the accused-appellants has submitted that he does not press the appeal so far as the accused Prithvisingh and Mst. Jadav are concerned because Mst. Jadav has been given the benefit of Probation of Offenders Act and accused Prithvisingh has already served out the sentence imposed on him. He has, however, submitted that he presses his appeal so far as it relates to accused Mst. Pani. In this respect he has submitted that the recoveries are fake because in the site inspection memo Ex. P. 2, it has been mentioned that the cloth bags which were hanging on the iron knob in the `Ora' of Mst. Dakhu, a chit pledging the ornaments of Mst. Dakhu for Rs. 500/- was found. Likewise, a chit of Rs. 60/- relating to these ornaments pledged by Gheesa Bhambhi were also found. The Chit of Mst. Dakhu along with the ornaments has been recovered from the possession of Mst. Dakhu as will be clear from the recovery memo Ex. P. 9 and, therefore, he has argued that the recovery made from Mst. Pani appears to be fake. 31. The learned Public Prosecutor vehemently opposed this submission made by the learned counsel for the accused-appellants. Dakhu along with the ornaments has been recovered from the possession of Mst. Dakhu as will be clear from the recovery memo Ex. P. 9 and, therefore, he has argued that the recovery made from Mst. Pani appears to be fake. 31. The learned Public Prosecutor vehemently opposed this submission made by the learned counsel for the accused-appellants. He has submitted that the police has recovered 5 Kg and 95 gms of ornaments from the possession of Budhiya, 6 Kg and 180 gms, of ornaments from the possession of Mst. Budhiya, 6 Kg. and 180 gms. of ornaments from the possession of Mst. Jadav and 5 Kg and 735 gms of ornaments from the possession of Mst. Pani. The recoveries of ornaments in such a large quantity cannot be fake. Even from Prithvisingh, 34 items (out of which 33 items are gold ornaments), have been recovered and so, it is futile to suggest that such recoveries can be planted. 32. We have considered the rival contentions. PW 61 Prithvisingh, Head Constable of Police Station, Gangashahar District Bikaner has stated that Govind Lal Constable informed him that a famous thief and a pick-pocket i.e. accused Prithvisingh has been seen in the market of Gangashahar. He is about to dispose of some property and so. he should be searched. This information was recorded by him in the Rojnamcha, which has been marked Ex. P. 72. Head Constable Prithvisingh accompanied by Motbirs Champalal Darji and Kalulal went to the market of Gangashahar and brought accused Prithvisingh to the police station, Gangashahar and there, on his search, a cloth bag was found concealed in a woollen blanket (Kambal). When this bag was searched, 34 items mostly consisting of gold ornaments were recovered from his possession. These ornaments were got weighed by one Taruram Sonar and then they were sealed. Later, information was sent to S.H.O. Kharchi i.e Shri Chensingh S.H.O. a d then he effected the arrest of the accused vide Ex. P. 74. Accused Prithvisingh gave information about the Chits which he has removed from those ornaments. This information memo has been marked Ex. P. 198. On the basis of this information, he got all those chits recovered from below a Khejri tree near the railway station Auwa. The seizure memo of Chhities Ex. P. 19 to Ex, P. 36 has been marked as Ex. P. 7. This information memo has been marked Ex. P. 198. On the basis of this information, he got all those chits recovered from below a Khejri tree near the railway station Auwa. The seizure memo of Chhities Ex. P. 19 to Ex, P. 36 has been marked as Ex. P. 7. This recovery of the chhitis have been proved by P. W. 35 Motilal also and most of these ornaments have been identified by the witness. Mst. Jadav was arrested vide arrest memo Ex P. 156 by the S.H.O. Chensingh. She gave information about the recovery of the ornaments from the house of Mst. Pani concealed under a earthen pot. This information memo has been marked Ex P. 159. On her information and , at her instance 6 kg. and 180 gms. of silver and gold ornaments were recovered from below the earthen pot by digging the plough. The recovery memo has been marked Ex. P. 11 and the site plan of the recovery has been marked Ex. P 12. The ornaments recovered were tagged with the chits of Sargari Tappi Bai, Pana Ji's wife Nai Banshi Jiwaji. Chaudhary Najuri Lumbaji, Daroga Maganji's wife, Meghwal Maganji's wife, Moolaji Chanchi, Soni Lalchand, Daroga Shivji's wife, Vyopri Ishaq, Karigar Chenaram Ramaji, Jatiyu Chhoga Bhooraji, Daroga Mohan's wife and Sagarg Laxman Narsingh. Out of all these persons, except Sargari Tappi Bai all other witnesses have been examined at the trial. They have admitted that they pledged certain ornaments for a definite amount. These witnesses have even identified the articles in the identification parade as well as before the court. We need not mention all these things because the conviction of Mst. Jadav has not been contested. However, this evidence is sufficient to prove that the ornaments belonging to these persons which were pledged with Mst Dakhu (deceased) wife of Dhanraj and were found in possession of Mst. Jadav. The recovery was effected on 10th November, 1971. 33. So far as Mst. Pani is concerned. P. W. 72 S.H.O. Chensingh has stated that she was arrested vide arrest-memo Ex. P. 155 when she was going along with Budhiya and Mst. Jadav near the village Khiwanda on their way to village pilawani where Mst. Pani was borne. After arrest, she gave information that she is ready to get the gold and silver ornaments recovered from below the earthen Kothi from her Padwa. P. 155 when she was going along with Budhiya and Mst. Jadav near the village Khiwanda on their way to village pilawani where Mst. Pani was borne. After arrest, she gave information that she is ready to get the gold and silver ornaments recovered from below the earthen Kothi from her Padwa. This information memo has been marked Ex P 151. On her information and at her instance. 5 kg. and 735 gms. of ornaments were recovered from below the earthen Kothi lying in her Padwa. The recovery memo has been marked Ex. P. 9 and the site plan of the recovery has been marked Ex. P. 10. The ornaments recovered from her were tagged with the Chitties of the owners who have pledged these ornaments with Mst. Dakhu. Those Chitties have been marked Ex. P. 52 to Ex. P. 54, Ex. P. 58, Ex. P. 63, Ex. P. 183 to Ex P. 189. Those Chitties were removed by the S. H. O. and in place thereof, certain identification slips were tagged with those ornaments. The Chitties disclosed that these ornaments belong to P.W. 32 Gheesulal son of Mohanraj, P. W. 26 Kena Raika, P. W. 43 Magna Bhambhi, P. W. 15 Smt. Jaitun, P. W. 11 Dalla son of Indaji Bhambhi, P.W. 54 Soni Lalchand. P. W. 55 Nek Mohd s/o Rahim Bux and P.W. 18 Dakhuri wife of Chatraji Khatik as also to Pathan Rahim Bux, Daroga Shivjimotiji and Madansingh son of Shiv singh who have not been examined. All the witnesses examined at the trial have categorically stated that they pledged certain ornaments with Mst. Dakhu for the amount mentioned in their statements. They have further identified their ornaments before the identifying Magistrate P. W. 71 D. P. Sood. P. W. 71 D.P. Sood has proved the identification memos by which all these ornaments were identified by the concerned witnesses before him. They have identified their ornaments even at the trial also. 34. It was argued by Mr. Rajpurohit that P. W. 18 Smt. Dakhu pledged her ornaments with Mst. Dakhu wife of Dhanraj and those ornaments have been recovered from the possession of Mst. Pai although they should have been at the residence of Mst. Dakhu wife of Dhanraj as mentioned in Ex P. 2. We have critically perused Ex. P. 2. It only mentions that one bag contained one chitti of Rs. Dakhu wife of Dhanraj and those ornaments have been recovered from the possession of Mst. Pai although they should have been at the residence of Mst. Dakhu wife of Dhanraj as mentioned in Ex P. 2. We have critically perused Ex. P. 2. It only mentions that one bag contained one chitti of Rs. 500/- along with certain ornaments belonging to one Dakhuri Khatik. No details of those ornaments have been given in Ex. P. 2. Even it is not mentioned as to who that Dakhuri is ? We have examined two Dakhus at the trial One is wife of Moolaji and the other is wife of Chatra Khatik. There may be many more Dakhuries in Khatik community. The possibility that some other Dakhuri Khatik has pledged her ornaments with Mst. Dakhu deceased has not been ruled out. The persons in such a number were pledging their ornaments with the deceased Dakhu. Dakhuri is a common name in the village. Moreover, P. W 18 Mst. Dakhu has stated that she pledged one golden Mala for Rs. 150/-, one pair of Tonti and four Organics for Rs. 350/-. She pledged one silver Kandora, one pair of Kadla. one pair of Anwala and four golden Oganias for Rs. 500/- and one golden Phool for Rs. 80/-. Thus, she pledged number of ornaments at different times. Ornaments of many more persons have been recovered along with the chittis from the possession of Mst. Pani. P. W. 23 Gheesa Meghwal has also stated that he pledged certain ornaments with deceased Dakhu for Rs. 160/-. He has identified Madaliya Article 36, Kandora Article 37 and a pair of Chudis Articles 38 and 31. In addition to which, he pledged one Kadolia but that was not there in the recovered articles. All these recoveries made from these three accused persons have been supported by P. W. 53 Kanmal and P. W. 9 Ghewarchand as also P. W. 57 Motilal. Under these circumstances, we have no hesitation in holding that the prosecution has been able to prove the recoveries of these large quantity of gold and silver ornaments from the possession of Mst. Pani. Mst. Jadav and Prithvisingh. All these recoveries from Mst. Pani & Jadav have been effected on November 10, 1971 whereas the occurrence took place on October 31, 1971. Pani. Mst. Jadav and Prithvisingh. All these recoveries from Mst. Pani & Jadav have been effected on November 10, 1971 whereas the occurrence took place on October 31, 1971. The learned lower court has, therefore, rightly concluded that the recoveries of these ornaments from the possession of accused Prithvi Singh, Mst. Pani, & Mst. Jadav along with accused Budhiya who has not preferred any appeal against his conviction under s. 411, I.P.C. are indicative of the fact that they are receivers of the stolen property and in our opinion, the learned lower court was justified in holding them guilty of the offence under s. 411, I.P.C. 35. Learned counsel for the accused-appellants Mst. Jadav and Prithvisingh has not pressed the appeal so far as the conviction of accused Mst. Jadav and Prithvisingh for the offence under s. 411, I.P.C. is concerned. He submitted that his clients do not claim ornaments also. Accused Mst. Pani has been sentenced to three years rigorous imprisonment by the learned lower court for the offence under s. 411, I.P.C. The occurrence took place on 31st October. 1971. More than 14 years have already elapsed. She was arrested on 10th November, 1971 and released on 28th April, 1972. Again she was arrested on 5th August, 1974 and released on 7th August, 1974. After the judgment by the learned lower court, she was taken in custody on 24th of May, 1975. She was released on bail by the order dated June 3, 1975 passed by this Court. Now, it will not be just and proper to send her back to custody after the lapse of such a long time. 36. In the result, the appeal filed by the State against the acquittal of accused Budha and Prithvisingh under sections 302/454 and 380 I.P.C. is hereby dismissed. The appeal filed by accused Prithvisingh and Mst Jadav is also dismissed. Their conviction under Section 411, I.P.C. is maintained. The sentence imposed against accused Prithvisingh for the offence under s. 411, I.P.C. is maintained. No sentence has been recorded by the learned lower court against accused Mst. Jadav for the offence under s. 411 I.P.C. actually, she has been given the benefit of the Probation of Offenders Act. So far as the appeal filed by Mst. Pani is concerned, it is partially accepted. Her conviction under s. 411,1. P.C. is maintained. No sentence has been recorded by the learned lower court against accused Mst. Jadav for the offence under s. 411 I.P.C. actually, she has been given the benefit of the Probation of Offenders Act. So far as the appeal filed by Mst. Pani is concerned, it is partially accepted. Her conviction under s. 411,1. P.C. is maintained. However, her sentence is reduced to the period of her custody. She is on bail. She need not surrender to her bail bonds.Appeal partly allowed. *******