Judgment Ram Naresh Thakur, J. 1. Both these two appeals arise out of the same judgment and, therefore, with the consent of the parties, they have been heard together and are being disposed of by this common judgment. 2. Both these appellants were put on trial for offences under sections 394 and 302/34 of the Indian Penal Code. 3. On 22-7-1980 at about 10-30 A.M. the informant. Mahendra Prasad Gupta (P. W. 3) along with his uncle Hari Prasad Sah was going to the State Bank of India to deposit the money, which belonged to his community. They were going on foot. When they reached near Sheonandan Palace at about 11 A.M. two to three persons came from east and surrounded the informant and his uncle. One of them Bhuneshwar Tanti was armed with pistol (he is absconder). Appellants Mahendra Singh and Makkban Mandal were also there. Appellant Makkhan Mandal tried to snatch away jhola from the hand of his uncle Hira Prasad Sah, which contained money. This resulted in scuffle. When the informant did not allow them to snatch away jhola, Bhuneshwar Tanti fired his pistol which bit right shoulder of Hari Prasad Sah due to which he fell down. The informant also received injury and then those three miscreants fled away with bag, which contained money towards east. The informant raised cry on which several persons came there. The condition of Hari Prasad Sah was critical. Therefore he was taken to the hospital. Hari Prasad Sah died. The informant became nervous and fell down. He became unconscious for sometime. When he came in sense he gave his statement before P.W. 14 which is Ext. 6 on the basis of which formal First Information Report was drawn up and a case was registered. P.W. 14 took up investigation and investigated the case. 4. It is further said that when after committing robbery, the culprits were fleeing away towards east, on hulla being raised by the informants and others, P.Ws. 4, 6, 7, 8 and 10 who are police officials, came and saw the miscreants entering into the maize field. The aforesaid witnesses surrounded the maize field and it is said that this appellant Mahendra Singh and Bhuneshwar Tanti (absconding accused) were arrested in the maize field. From the possession of appellant Mahendra Singh a bag containing Rs. 4, 6, 7, 8 and 10 who are police officials, came and saw the miscreants entering into the maize field. The aforesaid witnesses surrounded the maize field and it is said that this appellant Mahendra Singh and Bhuneshwar Tanti (absconding accused) were arrested in the maize field. From the possession of appellant Mahendra Singh a bag containing Rs. 12,800.00 and odd and a live cartridge were recovered and one country made pistol was recovered from the absconding accused Bhuneshwar Tanti. After arrest they were taken to the police station. 5. After investigation, charge sheet was submitted against these two appellants and Bhuneshwar Tanti who absconded during the trial (his trial was separated). 6. Fourteen witnesses were examined on behalf of the prosecution. After considering the entire evidence the learned court below convicted these two appellants who were found guilty under sections 394 and 302/34 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life under both the charges with a direction that both the sentences were to run concurrently. 7. The learned counsel appearing for the appellants has challenged the order of conviction on the ground that the legal evidence, which has been led by the prosecution in course of trial, does not connect these two appellants with the crime in question. From the evidence on the record, it cannot be said beyond all reasonable doubt that the stolen money and cartridge were recovered from the possession of appellant Mahendra Singh. He however, has not disputed the factum of robbery and death of Hari Prasad Sah. 8. After perusing the entire evidence including the evidence of P.Ws. 9 and II, we find sufficient evidence on the record to come to the conclusion that there was a robbery in which the deceased and the informant received injuries. The injuries received by the deceased proved to be fatal. Therefore, we find and hold that there was a robbery in which the informant and the deceased received injuries and one bag containing cash was looted away. 9. Now the question remains to be considered is whether these two appellants are responsible for the said robbery and the murder. According to the prosecution case it was Bhuneshwar Tanti the absconding accused who fired by pistol. His trial being separate from that of these appellants we are not considering the evidence against him. 9. Now the question remains to be considered is whether these two appellants are responsible for the said robbery and the murder. According to the prosecution case it was Bhuneshwar Tanti the absconding accused who fired by pistol. His trial being separate from that of these appellants we are not considering the evidence against him. We are concerned only with the evidence against these two appellants. The allegation against this appellant Mahendra Singh is that he snatched away bag containing money. Appellant Makkhan Mandal is alleged to have been present at that time with him. 10. Out of fourteen witnesses. P.Ws. 1, 2 and 3 are the witnesses who have claimed to have, seen the main occurrence of robbery and assault, P.Ws. 4, 6, 7, 8 and 10 are the witnesses who came on hulla and arrested appellant Mahendra Singh and absconding accused Bhuneshwar Tanti from the maize field and they have also stated about the recovery which will be discussed in detail subsequently at the appropriate place. P.W. 3 is the informant 11. These two appellants are named in the First Information Report. From the perusal of fard-beyan (Ext. 6), it will appear that the informant was knowing all the three named accused persons from before. But in the Court the informant (P.W. 3) has supported the factum of occurrence but said that he could not identify any of the offenders and then with the permission of the Court he was cross-examined by the Public Prosecutor. P.Ws. 1 and 2 have totally denied to have seen the occurrence and both of them were also cross-examined by the Public Prosecutor with the permission of the Court. Therefore, identification of these two appellants at the time of occurrence becomes very doubtful. 12. Now let us consider the evidence in respect of arrest of appellant Mahendra Singh and alleged recovery. From the First Information Report (Ext. 6) it will appear that the occurrence took place at about 11 a.m. and the fard-beyan was recorded at 2.30 p.m. but not a word bas been mentioned in that fard-beyan about the arrest and the recovery of this appellant. 13. P.W. 4 is Havaldar Sonu Das. From the First Information Report (Ext. 6) it will appear that the occurrence took place at about 11 a.m. and the fard-beyan was recorded at 2.30 p.m. but not a word bas been mentioned in that fard-beyan about the arrest and the recovery of this appellant. 13. P.W. 4 is Havaldar Sonu Das. Ho has come to say that on 27.7.1980 at about 11 a.m. when be was going to Zila School from Police line he heard a boy raising hulla Chor Chor, He saw two thieves running away from west to east. He also raised alarm. On his hulla Havaldar Mirza Sakil Beg (P.W. 10). Rameshwar Upadhaya (not examined) Narendre kumara Singh (P.W. 8) one constable whose name he did not remember, and Sergeant Major T. S. Kendra (P. W. 6) came there and they also participated in chase. The thieves concealed themselves in the maize field where they caught two thieves. After their arrest, they were taken to the police line and they disclosed their names as Mahendra Singh and some Tanti. The Sergeant Major (P.W. 6) searched their persons. One pistol and one cartridge besides a Jhola containing a sum of Rs. 12,800.00 and some paise were recovered from the possession of appellant Mahendra Singh. He (P.W.41) was unable to identify appellant Mahendra Singh in dock to say that he was the man whom he had arrested. He was then also declared hostile and was cross- examined. In cross-examination by the Public Prosecutor he says that be does not remember whether pistol and bag were recovered from the possession of appellant Mahendra Singh. 14. P.W. 6 is the Sergeant Major. On the day of occurrence at about 12 noon he was working in the office when be heard hulla Chor Chor. Then he came out and saw the people going towards the maize field. He also went there. Sergeant Lakshminath Jha (P.W. 7), Havaldar Rameshwar Upadhaya (not examined), Havaldar Mirza Sakil Beg (P.W. 10) Constable Narendra Singh and others participated in chase and the maize field was surrounded and on search two persons were arrested. One of them disclosed his name as Mahendra Singh and the other as Bhuneshwar Tanti. On search, one live cartridge, one bag containing register, some papers and one bag containing Rs. One of them disclosed his name as Mahendra Singh and the other as Bhuneshwar Tanti. On search, one live cartridge, one bag containing register, some papers and one bag containing Rs. 12,800,94 paise were recovered from the possession of Mahendra Singh and the country made pistol was recovered from the possession of Bhuneshwar Tanti. After arrest, they were taken to police line. He telephoned the police officer of Kotwali Police Station on which the Officer-in-charge (P.W. 14), Kotwali Police Station, came and then the arrested accused persons along-with recovered articles were handed over to P.W. 14. Ext. 2 is the seizure list which he prepared in presence of the witnesses. He does not remember who arrested whom. In Para 15 he says that he was standing on the border of the maize field. When those two persons were arrested and brought before him they disclosed their names. He has identified appellant Mahender Singh to have been arrested in the maize field. According to him, the search was made at the time of arrest itself and after recovery, he telephoned the police station. He has admitted that Ext. 2 was production list. He also admits that in Ext. 2 it has not been mentioned that the articles were recovered from the possession of Mahendra Singh. In Para 24 he says that Ext. 2 is not-in his pen rather he got it written by another person. 15. P.W. 7 Lakshmi Nath Jha, who was Sergeant, on the day of occurrence, saw two thieves running away towards east who subsequently concealed themselves in the maize field. He along with Havaldar Rameshwar Upadhaya, Munshi Narendra Singh and one Pandit Havaldar Dubey went to the maize field where that two thieves were arrested from that maize field According to him on search money, one cartridge and registers were recovered from possession of appellant. Mahendra Singh. He has identified the recovered articles. According to him, in chasing as well as in arresting only police officials participated. Public came when they were brought in the police line. According to him, Ext. 2 was written at the police line but recovery was made in the maize field. In court, he has not identified appellant Mahendra Singh to be the person who was arrested in the maize field. 16. P.W. 8 is the constable Narendra Kumar Singh. Public came when they were brought in the police line. According to him, Ext. 2 was written at the police line but recovery was made in the maize field. In court, he has not identified appellant Mahendra Singh to be the person who was arrested in the maize field. 16. P.W. 8 is the constable Narendra Kumar Singh. According to him on the day of the occurrence at about 2.30 P.M. a boy was raising hulla Chor Chor. Then he along with other police officials came out and saw two persons running away who subsequently concealed themselves in the maize field. On search, Bhuneshwar Timti and appellant Mahendra Singh were arrested from the said maize field. Then they were taken to the police line where they were searched and on search one live cartridge, one leather bag and one Jhola, which contained Rs. 12.800.94 paise, were recovered from the possession of appellant Mahendra Singh. He identified this Mahendra Singh in the dock to be the person who was arrested in the maize field. He says that he was never examined by the Investigating Officer. 17. P.W. 10 is Havaldar Mirza Sakil Beg. He has also made almost similar statement that of P.W. 8. According to him one live cartridge and one bag containing Rs. 12,800.94 paise were recovered from the possession of appellant Mahendra Singh. 18. P. W. 14 is the Investigating Officer. On 22-7-1980 on receipt of telephonic message he went to Sheonandan Palace. He learnt that two persons who had been injured, had been taken to the hospital. He went to the hospital and found Hari Prasad Sah dead and the informant lying injured. He made inquest report. When the informant came in senses he recorded his statement, which is Ext. 6. Thereafter he came back to the hospital and then the Officer-in-charge registered a case. At about 3.15 P.M. he received a telephonic message from the police line on which he went to the police line. He saw this appellant Mahendra Singh and one more person in the custody and the articles, as mentioned in the Ext. 2, were also banded over to him of which he prepared the production list a carbon copy of which is Ext. 8. He then also arrested appellant Makkhan Mandal from his house. He saw this appellant Mahendra Singh and one more person in the custody and the articles, as mentioned in the Ext. 2, were also banded over to him of which he prepared the production list a carbon copy of which is Ext. 8. He then also arrested appellant Makkhan Mandal from his house. In cross-examination this witness has said that Sakha No. 514 was recorded on the basis of telephonic message, which he had received from Sheo Nandan Palace. Before, he recorded the fard-beyan, inquest report was prepared. Till 2 P.M. he could not know about details of occurrence. On telephonic message he went to the place of occurrence along with the Officer-in-charge and others. At that time no eye-witness was available though there were some persons assembled there. At the time of occurrence in Sheonandan Palace there were offices of the Electricity Board and the Industry Department. Offices were open but he did not record the statement of any of the employees of those two offices. He then went to the hospital. There were some persons in the hospital but there wall no eye-witness. Then he says in Para 39 that before Ext. 6 the fard-beyan was recorded no body came to him to say about the occurrence. He could not meet Bishwanath Prasad (P.W. 1) and Birendra Prasad (P.W. 2) on 22-7-1980 in spite of search. He had Zone to the houses of Bishwanath Prasad (P.W. 1), Birendra Prased (P.W. 2) along with the informant. He could not know about the detai1s of money (see paras 47 and 48 of his deposition). In Para 51 (P.W. 14) says that when he went to police line Sergeant Major did not give him any seizure list. He recorded the statement of Havaldar and constable together. The place where two thieves were arrested was not down to him. 19. P.W. 6 had stated in chief that he got Ext 2 prepared in support of seizure. Subsequently in cross- examination he says that Ext. 2 is not in his pen rather he got it written. The Investigating Officer (P.W. 14) says that he prepared the production list, a carbon copy of which is Ext. 8. It is surprising that Ext. 2 and Ext. 8 are the same and one document Exts. 2 and 8 do not show that the articles mentioned therein were recovered from the possession of this appellant. The Investigating Officer (P.W. 14) says that he prepared the production list, a carbon copy of which is Ext. 8. It is surprising that Ext. 2 and Ext. 8 are the same and one document Exts. 2 and 8 do not show that the articles mentioned therein were recovered from the possession of this appellant. Even on the point of search, there is some discrepancy. One says that recovery was made in the maize field and the other says that the recovery was made in the police line. Therefore, in absence of any seizure list or any document to show as to which article was recovered from whose possession it is very difficult to hold-that one cartridge and one bag containing Rs. 12,800.94 paise were recovered from the possession of this appellant Mahendra Singh. Recovery is alleged to have been made in the year 1980 and the witnesses were examined in the year 1982. Therefore, in absence of the seizure list indicating which articles were recovered from whose possession it is very difficult to rely on the oral evidence of the witnesses who were examined after two years of the occurrence. 20. Apart from the aforesaid facts it bas been argued that appellant Mahendra Singh was also tried under sections 25 (A) and 36 of 995/80/705/82 the Arms Act in G.R. Case No. for the recovery of cartridges but he has been acquitted on 29-11-1982. The certified copy of the judgment has been produced. 21. As regards the conviction under sec. 302/34 as stated above, P. Ws. 1, 2 and 3, who are actual witnesses of the occurrence, have not identified any of these two appellants in the Court. Therefore, the participation of these two appellants in the said crime becomes very doubtful. No doubt, they are named in the First Information Report but in the Court none of these two appellants have been identified by the aforesaid witnesses. Therefore charge under sec. 302/34 of the Indian Penal Code cannot be said to have been proved against these two appellants. 22. As regards the offence under sec. 394 of the Indian Penal Code appellant Makkhan Mandal was not arrested in the maize field but he was arrested in his own house. As regards his participation in the main occurrence, we have already held that there is no reliable evidence to connect the appellants with the crime in question. 22. As regards the offence under sec. 394 of the Indian Penal Code appellant Makkhan Mandal was not arrested in the maize field but he was arrested in his own house. As regards his participation in the main occurrence, we have already held that there is no reliable evidence to connect the appellants with the crime in question. As regards recovery, there is no seizure list to indicate which articles were recovered from the possession of whom. Therefore, these two appellants are entitled to get benefit of doubt in respect of both the offences. 23. In the result, both the appeals are allowed, the order of conviction and sentence passed against these appellants is set aside, The appellants are discharged from the liability of the bail bond.