K. K. VERMA, J. ( 1 ) THIS is a revision from an appellate order affirming a conviction under S. 394, I. P. C. carrying a two-year R. I. ( 2 ) THE Judicial Magistrate First Class, Karora, acquitted Rameshwar of the same charge, to wit, the robbing of PW 1 Sarjubai Lodhi, of a pair of silver Paijnas and voluntarily causing hurt to her in the robbery in her Paur in the village of Jujhai on 3-12-1980 at about 11. 00 p. m. ( 3 ) APPLICANT Mulayam Singh's appeal was dismissed by the Additional Sessions Judge, Shivpuri. ( 4 ) THE accused persons come from the village of Bhonta which is separated from the village of Jujhai by a river. Sarjubai (PW 1) and the applicant know each other from before 3rd Dec. 1980. ( 5 ) THE Courts below accepted PW 1 Sarjubai's evidence that she was overpowered and gagged with a towel and then the applicant removed the paijnas from her ankles and left her house. He had left behind his towel soiled by the blood oozing from her gums resulting from a dislocation of two teeth during the robbery. The police seized the towel. ( 6 ) THE learned Magistrate did not scrutinise and evaluate, much less express his acceptance or rejection of the evidence of Rajkumar Soni (P. W. 5) of Jhansi (U. P.) to the effect that applicant Mulayam Singh sold to him silver paijnas weighing 417 grams for nine hundred thirty rupees at Jhansi on 12-12-1980 and executed a sale-note (Ex. P. 5) and that he melted the ornament into a silli which the Karora Police seized from him on 22-1-1981, vide Ex. P-6. The learned Additional Sessions Judge accepted the aforementioned evidence but gave no reasons for accepting it. ( 7 ) THE Courts below believed the evidence of the seizure of the towel by the Police deposed by Sarjubai (PW 1) and Gayaprasad (PW 2 ). Regardless of the fact that the seized towel was not introduced in evidence in Court and was not identified (on oath) by Sarjubai (PW 1), the Courts below accepted the bald statement of Mst. Sarjubai (PW 1) that the towel seized by the Police in her house belonged to applicant Mulayam Singh Yadav. Regardless of the fact that the seized towel was not introduced in evidence in Court and was not identified (on oath) by Sarjubai (PW 1), the Courts below accepted the bald statement of Mst. Sarjubai (PW 1) that the towel seized by the Police in her house belonged to applicant Mulayam Singh Yadav. ( 8 ) THE learned Magistrate thought that the evidence of Narayan Prasad Soni (PW 3) corroborated Sarjubai (PW 1) by saying that the Paijna (Article A) was made by him. The learned Magistrate did not pay any significance to the evidence of Mst. Sarjubai (PW 1) that the Paijna (Article A) was not hers. In fact, there is no evidence that the Paijna (Art. A) was seized from or in consequence of any information furnished by the applicant. ( 9 ) THE learned Magistrate gave benefit of the doubt to accused Rameshwar Yadav in the light of the following features of the testimony of PW 1 Sarjubai. She deposed that she had known Rameshwar since his childhood but she did not name him in the FIR (Ex. P-1) Secondly, she testified that accused Rameshwar gagged her by a piece of cloth and then applicant Mulayam Singh removed the paijnas from her ankles. On the other hand, in her F. I. R. (Ex. P. 1) the version had been that applicant Mulayam Singh gagged her mouth and the other man forcibly removed her paijnas, she denied the aforementioned version in her evidence. ( 10 ) HAVING rejected (PW 1) Sarjubai's evidence as against accused Rameshwar, the Court below shrugged off the same infirmity as the loss of memory of an old woman while accepting her version as against applicant Mulayam Singh; the Courts below gave no cogent reasons for accepting the evidence of Sarjubai (PW 1) as against applicant Mulayam Singh. ( 11 ) AGAIN, the learned Magistrate did not record a finding that accused Mulayam Singh had another guilty associate in the crime, while the learned Additional Sessions Judge held without giving any reasons that there was an abettor present at the Paur of the robbed woman. Thus, the learned Magistrate as well as the learned Additional Sessions Judge each in his own way made out a new case for the prosecution (without giving any cogent reasons) after having rejected a substantial part of the evidence of Sarjubai (PW 1), the sole eye-witness in the case. Thus, the learned Magistrate as well as the learned Additional Sessions Judge each in his own way made out a new case for the prosecution (without giving any cogent reasons) after having rejected a substantial part of the evidence of Sarjubai (PW 1), the sole eye-witness in the case. In Ugar Ahir v. State of Bihar, AIR 1965 SC 277 , it was held that it is not permissible for Court to do this. ( 12 ) THE learned Additional Sessions Judge accepted the evidence of Rajkumar Soni (PW 5) without marshalling, much less considering, the testimony as a whole, and that too without giving any reasons for accepting the evidence. A scrutiny of his evidence brings to the fore the following features thereof. He was unable to tell the no. of the paijnas sold by applicant Mulayam Singh Yadav. (The sale not Ex. P. 5 recited the sale of one paijna ). He deposed that he used to enter such purchases of ornaments into a register. He confessed loss of memory whether he obtained the applicant's signature in the Register. He said that he would require ascertainment (by a search) whether the register was in existence at the date of his giving evidence. He deposed that the Police had seen the register but the Police did not take any copy of the entry from the register. ( 13 ) FURTHER, PW 5 Rajkumar said that he melted the paijna (s) along with other ornaments and prepared one silli weighing 3-4 kilograms. He cut off a piece of silver from that silli and handed it over to the police. It is, therefore, impossible to say that the piece of silver taken away by the police represents the silver of the paijna (s) in question. That is more, PW 5 Rajkumar did not depose any description of the make and special features, if any, of the paijana (s ). ( 14 ) IT is, therefore, difficult to see how any prudent man could have said that the silver silli produced in Court came off the stolen paijana (s ). ( 15 ) PW 3 Narayan Sonar, who claims to have renovated the old paijanas of PW 1 Sarjubai, confessed that he did not put in any special identifiable design in the paijanas. ( 15 ) PW 3 Narayan Sonar, who claims to have renovated the old paijanas of PW 1 Sarjubai, confessed that he did not put in any special identifiable design in the paijanas. What is more, his evidence, given with reference to the paijana (Art. A), has no relevance in view of PW 1 Sarjubai's clear denial of the suggestion that the paijana (Art. A) was hers. ( 16 ) ANOTHER thing, there is no evidence that the applicant gave any information to the police about any paijanas or that he was present at the time Rajkumar (PW 5) gave the silver silli to the police. As such, the discovery of the silli cannot be used against the applicant under S. 27, Evidence Act. ( 17 ) THE prosecution did not examine the doctor or the investigating officer. Thus, the evidence of PW 1 Sarjubai (a widowed woman aged 65) is all that could be considered against the applicant, and of course her FIR (Ex. P. 1) which could be used as corroborative of her testimony. "sarjubai (PW 1) was seemingly in her house in the night in question. She has given no topography of her house except that her paur has doors. " ( 18 ) SHE said on effect that she was to retire for the night in her paur. She did not say whether she had chained the doors of the paur. In fact, she did not say that the doors had any fastening chain or any other device for fastening and barring the doors from inside the Paur. ( 19 ) SINCE she was avowedly awake she was expected to explain but she did not explain, how the robbers unobstrusively entered the paur, and why she did not raise a shout on their coming to her. ( 20 ) SHE deposed that the accused persons clapped their hands over her mouth and accused Rameshwar gagged her mouth with a piece of cloth - not any towel. Then one of them pulled out the piece of cloth and out came her two teeth as well. ( 20 ) SHE deposed that the accused persons clapped their hands over her mouth and accused Rameshwar gagged her mouth with a piece of cloth - not any towel. Then one of them pulled out the piece of cloth and out came her two teeth as well. Why pull out the piece of cloth - an effective gag - may one ask; ( 21 ) ON being cross-examined on behalf of the applicant she said that the oozing of the blood from her gums had soiled a towel and her wearing apparel as well, and that her dislocated teeth had fallen down. ( 22 ) THERE is, however, no evidence that the police seized her blood soiled wearing apparel or recovered her fallen teeth. ( 23 ) UNDER the cross-examination for Rameshwar, she said that applicant Mulayam Singh had shone a torch-battery and in the resultant illumination she recognized the accused persons known to her since their childhood. There had been not a whisper of any torchlight in her examination-in-chief and her report. ( 24 ) SO, the robbers gag her and ungag her and then the applicant shone a torch-light on to his face. ( 25 ) SIMILARLY, she admitted to the applicant (in cross-examination) that she had a gold pugaria in her nose and silver churis on her person. If so, the robbers seemed to have come for her paijanas only. ( 26 ) THE evidence referred to in the preceding two paragraphs makes no sense except to underscore the fact that the woman let out whatever came into her mouth. Was it safe to reply on the utterances of such a witness ? ( 27 ) AGAIN, she said that her outcries attracted Mathra, Bhansingh and Gayaprasad (PW 2) to her house she does not say that the applicant was one of the robbers. Gayaprasad (PW 2) is silent over the episode of the night. The other two have not been. ( 28 ) SHE lodged her report at the police station some 5 kilometers away next day at 12. 30 p. m. , and gave no explanation why she had tarried in the village after the village folk - as she says - had come to know of the robbery within minutes thereof. The other two have not been. ( 28 ) SHE lodged her report at the police station some 5 kilometers away next day at 12. 30 p. m. , and gave no explanation why she had tarried in the village after the village folk - as she says - had come to know of the robbery within minutes thereof. ( 29 ) ALL this is on top of the discrepancies on material point between her evidence and her report about the precise role of the applicant in the robbery. Now, Sarjubai (PW 1) did admit that there was feud between the people of Jujhai and Bhonta villages over cattle. Hence, the material features of the case and the infirmities in their prosecution evidence probabilise the applicant's defence that Sarjubai (PW 1) falsely implicated him at the instance of her village folk. ( 30 ) IT is evident that the lower Courts did not advert to material circumstances of the case and took irrelevant evidence into consideration. There was no marshalling of the evidence. The reasons, such as they are, for accepting the evidence of Sarjubai (PW 1) are unsatisfactory. No cogent reasons were given to explain or explain away the lacuna in the prosecution evidence. Having acquitted co-accused Rameshwar on the charge of the same robbery on the ground of many discrepancies between her evidence and her FIR, they accepted the self-same evidence in convicting applicant Mulayam Singh. Hence, the finding of conviction reached by the lower Courts is manifestly unjust and cannot be allowed to stand in this revision proceeding. ( 31 ) THE revision is allowed. The conviction and sentence of 2 years under S. 394 I. P. C. are set aside and the applicant is acquitted of the charge under S. 394, I. P. C. He be set at liberty forthwith. The paijna (Art. A) be returned to Bhagwan s/o Vrindavan Yadav of the village of Mota from whom it was seized. The silver silli be returned to Rajkumar Soni (PW 5) from whom it was seized. Petition allowed. .