JUDGMENT 1. - This appeal is directed against the judgment dated July 6, 1988 passed by the Sessions Judge, Jalore by which appellants Suresh and Amrat Lal were convicted under S 411 IPC and sentenced to three year R.I and a fine of Rs. 500/-, in default of payment of fine to undergo three months R.I. 2. Briefly, stated the prosecution story is that one Sumti Bai resident of Badanwadi was murdered in the intervening night of 23rd and 24th of January, 1988. In the morning of 24th, Babulal (PW 2) passed that way. The milk man informed him that despite his call, Sumti Bai was not responding. Babulal thereupon peeped inside the room locked from outside through ventilator and found Sumti Bai lying dead on a cot. He sent information to her relative Tek Chand (PW 3) at village Godan and himself went to police station Ahore. Shaitan Singh (PW 8) SHO of police station Ahore alongwith constable Dana Ram went to village Badanwadi and made necessary investigation, but nothing could be known about the culprits. The two appellants were in police custody in connection with some other case, on April 27, 1988 they were obtained in this case and were interrogated. On April 30, 1988 Amrat Lal was taken to the house of deceased Sumti Bai and memo was prepared on his information about the commission of the crime, on May 3, 1988, Amrat Lal furnished information Ex. D/1 for getting recovered certain articles from outside the house (jhumpa) of Suresh. On the same day, Suresh also furnished information Ex. D/2 for getting recovered certain articles from his `jhumpa'. The SHO took both the appellants to village Leta. In pursuance of the information furnished by Amrat Lal a pit was dug outside the `bada' and one packet was taken out. The packet contained one Phillips Radio, one knife and gloves. The articles were taken in possession and seized vide memo Ex. P/8. At the instance of Suresh from inside the house from over the slap, one silver `kandora' (ornament to be worn in the loin) and two silver bowels, were recovered. These articles were taken in possession and sealed vide memo Ex. P/9. 3. Upon completion of necessary investigation, charge sheet against the two appellants was filed in the court of Additional Munsif and Judicial Magistrate, Jalore. The case on committal reached the court of Sessions Judge, Jalore. These articles were taken in possession and sealed vide memo Ex. P/9. 3. Upon completion of necessary investigation, charge sheet against the two appellants was filed in the court of Additional Munsif and Judicial Magistrate, Jalore. The case on committal reached the court of Sessions Judge, Jalore. 4. The learned Judge charge-sheeted the appellants for the offences under sections 460, 302 and 380 IPC and recorded their pleas. On their denial of the indictments trial proceeded. Prosecution examined eight witnesses in all to substantiate its case. In their statements under section 313 of the Code of Criminal Procedure the appellants denied the allegations levelled against them and stated that the recovery was not made from them but they have been falsely implicated in the matter, as they were under arrest in some other case. The learned trial Judge did not hold the appellants guilty for the charge of murder. He however, in view of recovery of the articles said to be belonging to the deceased, held them guilty for receiving stolen property and convicted and sentenced them under s. 411 IPC as stated earlier. 5. I heard Mr. M.C. Bishnoi, learned counsel for the appellants and Mrs. Chandra Lekha, learned Public Prosecutor for the State, and perused the record. 6. The learned counsel for the appellants has assailed the judgment of the trial Court on the ground that the property has not been proved to be stolen property, it has been urged that the person who identified the property and the Magistrate who got the property identified, have not been examined. Regarding the recovery of the ornaments, the argument of the learned counsel for the appellants is that the recovery was either from an open place or from a room which was accessible to every body and therefore, cannot be said to be in exclusive possession of the appellants. It has also been argued that no independent motbir has been examined to support the allegation of recovery at the instance of the appellants. 7. The learned Public Prosecutor submitted that the recovered article have been proved to be the belongings of the deceased Sumti Bai and therefore, the recovery of those articles at the instance of the appellants, is sufficient to hold them guilty under S. 411 IPC. 8. 7. The learned Public Prosecutor submitted that the recovered article have been proved to be the belongings of the deceased Sumti Bai and therefore, the recovery of those articles at the instance of the appellants, is sufficient to hold them guilty under S. 411 IPC. 8. It is important to note that the identification memo has been admitted by the accused as the endorsement on the memo shows. The appellants have not claimed the Radio, `kandora' and the silver bowels as theirs. As such, the non-examination of the witnesses identifying the property and the Magistrate conducting the identification parade will not affect the prosecution case. 9. The pertinent question is whether the recovery of the four articles was in pursuance of the information furnished by the appellants and whether they can be held guilty on account of that recovery. 10. At the very out set it may be stated that so far as the preparing of the site memo of the house of Sumtibai at the instance of Amrat Lal is concerned, suffice it to say that the fact cannot be taken help of by the prosecution because the dead body had already been recovered and any version given by any accused was in the nature of confession and nothing was recovered in pursuance of any information. I am therefore, left only with the recovery of the incriminating articles. Shaitan Singh (PW 8) has not stated about any information. He had accompanied Talib Hussain (PW 7) Deputy Superintendent of Police, Jalore who has stated about information Ex D/1 & Ex. D/2 having been furnished by the two appellants and the recovery of the articles. The gloves and the knife found in the packet recovered from outside the `jhumpa' on digging the pit, not being stained with human blood was rightly not being taken as incriminating circumstance. The Radio is said to be belonging to the deceased. The Dy. S.P. has stated about the information and then he alongwith others going to the site and on digging the pit one packet being taken out from outside the `bada'. It has not been stated by him that it was Amrat Lal who dug the pit and, took out the packet. The house is said to be of Suresh appellant. He is said to be tenant of one Choudhary. The door of the house was not locked. It has not been stated by him that it was Amrat Lal who dug the pit and, took out the packet. The house is said to be of Suresh appellant. He is said to be tenant of one Choudhary. The door of the house was not locked. It is stated by Talib Hussain (PW 7) that there was lock on the door but on being pushed by Suresh it got opened and then Suresh pointed out the articles lying on the slab inside. This shows that the house was not locked. It has not come on records as to since when the two appellants were in custody in other and therefore, if the house was not locked it could have been accessible to any body. There is force in the contention of the learned counsel for the appellants that the house from where the articles have been recovered did not really belonged to suresh appellant. The landlord of the house has not been examined. Though there were neighbourers in the vicinity whose names have come in the statements of the witnesses, none has been examined to state that the house was in possession of Suresh and for how long it remained unoccupied. 11. An important circumstance casting doubt on the fairness of the investigation is that no person from the vicinity was taken as motbir. The motbir, to the recovery memos Ex. P/8 and Ex. P/9 are Tek Chand and Khangar Singh Khangar Singh has not been examined. Tek Chand is the person to whom Babulal (PW 2) has sent information about the murder of Sumtibai. When the police at the instance of Babulal reached the site. Tak Chand also reached there & furnished information which was sent to police station for registering the case. Talib Hussain has admitted that both the motbirs i.e. Khangar Singh and Tek Chand were taken by the police from Leta Bus stand. Tek Chand has stated that when he was standing at the Bus stand, the police, while going for recovery, took him as motbir. It can be said to be a co-incidence that Tek Chand informant would of his own accord be at the Bus stand and the police of all the persons would take him as the motbir. Tek Chand has stated that when he was standing at the Bus stand, the police, while going for recovery, took him as motbir. It can be said to be a co-incidence that Tek Chand informant would of his own accord be at the Bus stand and the police of all the persons would take him as the motbir. The non-examination of other motbir & Tek Chand informant being taken as motbir, despite there being other inhabitants in the locality, where from the recovery is said to have been made, casts doubt on the fairness of the investigation and strengthens the argument of the learned counsel for the appellants that the property must have been implanted and the recovery might have been shown to implicate the appellants who were already in custody in some other case. 12. A very important factor coming from the statement of Tek Chand casting doubt on the prosecution version about the information being furnished by the appellants prior to the recovery is that police had recorded the statements of the two appellants after the allowed recovery and took their signatures on those statements. Tek Chand has stated that after the recovery, police recorded the statement of Amrat Lal and took his signature on it. That, statement of Suresh was also recorded and his signatures was taken Ex. D/1 and Ex. D/2 are the statements regarding the recovery. This suggests that the alleged informations Ex. D/1 and Ex. D/2 were prepared after the alleged recovery and signatures of the accused were taken on them. 13. In the above discussed state of affairs, the recovery cannot be said to be in pursuance of the information furnished by the appellants and the conviction of the appellants under section 411 IPC on the basis of this type of recovery is not justifiable. 14. Consequently, the appeal of Suresh and Amratlal is allowed. Their conviction and sentences are set aside and they are acquitted of the charges. They are already on bail. They need not surrender to it. Their bail bonds stands discharged.Appeal allowed. *******