JUDGMENT A.N.Dikshita 1. Jwala Singh, Pheku Singh alias Ramsaran Singh and Hemnath Pandey have filed this appeal against the judgment and order dated 14-4-1979 of Sri J. B. Singh, 3rd Additional Sessions Judge, Mirzapur, in Sessions Trial No. 41 of 1974 convicting Jwala Singh under sections 395 and 412 IPC and sentencing him to 5 years' R. I. and 3 years' R. I. respectively and convicting Pheku Singh alias Ramsaran Singh and Hemrath Pandey under section 412 IPC and sentencing each of them to 3 years' R. I. The sentences of Jwala Singh have been directed to run concurrently. 2. The prosecution case is as follows : on the night between 19th/20th August, 1971 Smt. Chandra Jyoti wife of Janardan Tewari was sleeping in her house in village Kewali, P. S. Ghorawal, district Mirzapur, along with her children. At about 2 or 2.30 A.M. some persons managed to jump in the courtyard who opened the main door of the house from inside. 12-13 dacoits who were armed then started looting the belongings of the house for an hour. On an alarm being raised by Jagrup, PW 14, Lalmani, PW 5, Mangru, PW 6, Buddhu, PW 13 and Ganga, PW 17, and other villagers came to the spot flashing their torches. However, the dacoit managed to escape with all the valuable comprising of clothes, utensils, transistor, wrist watches, shoes and cash amounting to Rs. 150/-. A written report of the incident was lodged by Smt. Chandra Jyoti, PW 1, at P.S. Ghorawal district Mirzapur, at 9.05 P.M. on 20-8-1971. Bhola Pandit, Mahendra Pandit and Jwala Kunbi were named in the first information report. A case under sections 395/2197 IPC was registered. 3. The investigation of the case was taken up by Gajadhar Singh, PW 19, S. O. of P. S. Ghorawal. After accomplishing the necessary formalities a chargesheet was filed. 4. The appellants denied the charges and accordingly they were tried and were convicted and sentenced as mentioned above. In support of the prosecution story Smt. Chandra Jyoti, PW 1, who had lodged the first information report has supported the case as spelt out in the report. She has stated that on the day of the incident her husband Janardan Tewari, PW 4, was in Jail at Mirzapur. She has admitted that her collaterals had got him falsely implicated and arrested. She has stated that on the day of the incident her husband Janardan Tewari, PW 4, was in Jail at Mirzapur. She has admitted that her collaterals had got him falsely implicated and arrested. She has stated that Jagrup, PW 14 and Jairam, PW 15, who were her servants were sleeping on the night of incident outside her house in the verandah. She has stated that she knew Bhola Pandit, Mahendra Pandit and Jwala who were amongst the dacoits from before as they used to visit her husband. She admits that her husband had been arrested in connection with a dacoity case. She has also admitted that in the morning around 6-7 A.M. on 20-8-1971 the had sent her son San jay Kumar to Mirzapur to meet; his father and seek his advice in regard to the dacoity that had been committed in the house. She admits that no details were given to Sanjay Kumar about the dacoity. Sanjay Kumar did not return from Mirzapur for two days but she admits that she did not enquire from him about his delayed return. When Sanjay Kumar did not return she lodged the report at 9.05 P.M. on 20-8-1971 at P.S. Ghorawal. This report was prepared by Km. Anita aged about 13 years on her dictation. She has admitted that Km. Anita is the eldest child in the family. Smt. Chandra Jyoti, PW 1, has further admitted that there is long standing enmity between her husband and one Ram Dass. It is this Ram Dass who had got her husband arrested. Brahma, Shiv Murat and Ashok are the sons of Ram Dass. Chandra Bhushan is the brother-in-law of Ashok. This witness also admits that Kanhaiya and Sant Ram are known to her. 5. On 21-8-1971 around 4.05 P.M. Sanjay Kumar lodged a report of the incident under sections 395/397 IPC at P.S. Kotwali Dehat, district Mirzapur, against Brahma, Shiv Murat, Ashok; Kanhaiya Ram, Sant.Ram and Chandra Bhushan and 15 other persons. Sanjay Kumar was not produced as a witness. 6. Another aspect of the case which cannot be lost sight of is the delay in the lodging of the report. The delay has not been satisfactorily explained. If the report was not lodged instantly because advice was sought from Janardan Tewari then it becomes very unnatural as to how the report was lodged at 9.05 P.M. on 20-8-1971. 6. Another aspect of the case which cannot be lost sight of is the delay in the lodging of the report. The delay has not been satisfactorily explained. If the report was not lodged instantly because advice was sought from Janardan Tewari then it becomes very unnatural as to how the report was lodged at 9.05 P.M. on 20-8-1971. This conduct of Smt. Chandra Jyoti, PW 1, does not inspire confidence as regards her explanation for the delay in the lodging of the first information report. Sanjay Kumar lodged the report as stated above on 21-8-1971 at 4.05 P.M. From a perusal of this report it is clear that police of P.S. Ghorawal had not lodged the report when Smt. Chandra Jyoti had gone to lodge the report in the morning. However, all the persons, namely, Brahma, Shiv Murat, Ashok, Kanhaiya Ram, Sant Ram and Chandra Bhushan who are earned in the report of Sanjay Kumar are inimical to Janardan Tewari. It is thus manifest that persons inimical to the family were implicated but later on the investigating agency acted on the report lodged by Smt. Chandra Jyoti, PW 1. 7. Smt. Chandra Jyoti, PW 1, (das stated that she knew Mahendra Pandit and Jwala from before. At the time of the incident they had no veil on their faces. This witness admits that besides the three persons named by her she did not recognise any other dacoit. She admits that no dacoit touched her or any other family member. She stated that Jwala and Mahendra Pandit were wielding guns and they were standing near her cot. It becomes very doubtful that Jwala and Mahendra Pandit who were known to SMT. Chandra Jyoti, PW 1, would not conceal their identity and would give an opportunity to SMT. Chandra Jyoti to recognise. Implicit reliance cannot be placed on the testimony of SMT. Chandra Jyoti as regards the presence of Jwala. No person who is going to commit a crime will be bold enough to be recognised. 8. Lalmani, PW 5, Buddhu, PW 13, Jagrup, PW 14, Jairam, PW 15 and Ganga, PW 17, who are alleged to be present at the time of the incident have not supported the prosecution story that Jwala, Bhola Pandit and Mahendra Pandit were present and were recognised by them. 8. Lalmani, PW 5, Buddhu, PW 13, Jagrup, PW 14, Jairam, PW 15 and Ganga, PW 17, who are alleged to be present at the time of the incident have not supported the prosecution story that Jwala, Bhola Pandit and Mahendra Pandit were present and were recognised by them. Now Mangru, PW 6, is the only witness who is alleged to be present at the time of the commission of the dacoity. No doubt he says that be saw Jwala, Bhola and Mahendra committing dacoity and had gone to jail to identify them and bad identified Jwala in jail, hut Jwala was never put up for identification. However, with the same breath this witness says that Jwala whom be recognised in jail was not present in court. This witness is aged about 15-16 years. However bold or courageous he may be it is difficult to believe that on hearing noise he went to the house of Smt. Chandra Jyoti, PW 1, where dacoity was being committed. His observations do no appear to be right and inspiring confidence. He says that he stayed there only for 2-3 minutes. Smt. Chandra Jyoti, PW 1, has stated that for an hour the dacoits looted her house and Jwala and Mahendra remained standing near her cot. Mangru, PW 6, admits that he did not enter the house. The statement of this witness does not inspire confidence and implicit reliance cannot be placed on it. 9. It is thus doubtful that Jwala was present at the time of the commission of the dacoity. 10. It is the case of the prosecution that on 22-8-1971 the articles which were looted from the house of Smt. Chandra Jyoti were recovered from five accused, namely, Jwala, Pheku, Hemnath, Bhola and Mahendra. In support of the recovery, Uma Shanker Singh, PW 9, and Ram Bahoran Singh, PW 12, who are public witnesses have not supported the prosecution case. Only one public witness Jwala, PW 3, and Ram Shiromani Dube, PW 11 and Gajadhar Singh, PW 19, the investigating officer, have proved the recovery, Jwala, PW 3, has stated that the Sub-Inspector had taken him to the house of Jwala Kunbi. On reaching his hut five persons immediately came out of the hut and fled. Jwala was also amongst these five. All the five were having one package (Gathri) each. All the accused were arrested and articles recovered. On reaching his hut five persons immediately came out of the hut and fled. Jwala was also amongst these five. All the five were having one package (Gathri) each. All the accused were arrested and articles recovered. This witness admits that all the five persons did not run which is contrary to his own statement in the examination-in-chief. It is stated that in the package of Jwala a sewing machine was found. It is not possible that a person would run with a package having sewing machine. The testimony of this witness does not inspire confidence and implicit, reliance cannot be placed on it. Gajadhar Singh, PW 19, is a witness of recovery and is also the investigating officer in this case. In Pir Bux v. State, 1980 Allahabad Criminal Rulings 152, it has been held that where the police officer is himself an eye-witness (in this case a recovery witness) and becomes the investigating officer then there is no assurance that truth would be forthcoming. The sole aim of the investigating agency is to ascertain truth in the allegations of the prosecution version. If a person who has been entrusted with the investigation is also an eye-witness of the incident then it casts a serious doubt and there would be lack of assurance that the prosecution version is correct. This view finds support in the case of Bhagwan Singh v. State of Rajasthan, 1978 Supreme Court Criminal Rulings 30 where it was held that an informant or complainant who lodged the first information report could not be the investigator of the case against the appellants. It is thus clear that the recovery as shown by the prosecution is very doubtful. In view of the above the appeal deserves to be allowed. In the result the appeal is allowed and the conviction and sentences of the appellants are set aside and they are acquitted. Jwala Singh and Pheku Singh alias Ramsaran Singh are on bail. They need not surrender and their bail bonds are discharged. Hemnath Pandey died during the pendency of the appeal. His appeal abates. Appeal allowed.