JUDGMENT 1. - This appeal is directed against the judgment dated 21-7-92, passed by the District and Sessions Judge, Bikaner, by which the learned Sessions Judge convicted and sentenced the accused-appellants for the offence under Sections 395, 397 and 460,Indian Penal Code. 2. The case of the prosecution is that about ten years before the date of the incident, the complainant party purchased some land, situated in Chak No. 5 P.M., from one Sugna Ram Bawri and constructed their Dhani on this land. They were living in that Dhani along with their family members. On 26-7-88, when informant Raj Kumar, his father Veer Singh, mother and sisters were sleeping in the Dhani after taking their meals, and his uncles Sumer Singh, Pratap Singh and Hari Singh and aunt Smt. Umrawati and Smt. Kamla were, also sleeping in the court-yard, then at bout 10.00 p.m., he received a lathi blow on his right shoulder and when he got-up, he saw five persons in underwears and Baniyans, who were muffled faces and were having Lathis and Barchi and were giving beatings to his father Veer Singh, uncles Sumer Singh, Pratap Singh and Hari Smgh and were, also, saying that they would kill all of them and take away the valuables. Veer Singh - the father of the complainant Raj Kumar - received injury by the Barchhi as well as by Lathi on his left jaw: Sumer Singh received injury by Barchhi and Lathi on his head, Pratap Singh received injury by a Lathi on his (ace and Hari Singh received an injuries on lower and upper limbs as well as on head, Smt. Kamla and Smt. Umrawati tried to save Sumer Singh, Pratap Singh and Hari Singh and in that process they, also, received injuries by Jayee. When Balwanti tried to save her husband Veer Singh, the accused ran towards her, upon which Smt. Balwanti raised an alarm. After giving beatings to these persons, the accused went inside the Saal, collected all these ladies there, took-away the ornaments which they were wearing at that time and ran away. The report of this incident was lodged at Police Station, Chhattargarh, on 27-7-88 at about 4.30 p.m. by PW 4 Raj Kumar. The police, after necessary investigation, presented the challan against these three accused-appellants and they were tried by the learned Sessions Judge, Bikaner. The prosecution, in support of its case, examined eighteen witnesses. The report of this incident was lodged at Police Station, Chhattargarh, on 27-7-88 at about 4.30 p.m. by PW 4 Raj Kumar. The police, after necessary investigation, presented the challan against these three accused-appellants and they were tried by the learned Sessions Judge, Bikaner. The prosecution, in support of its case, examined eighteen witnesses. The learned Sessions Judge, after trial, convicted the appellants for the offences under Sections 395 397 and 460,1.P.C. and sentenced each of them to undergo seven years rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo three months' rigorous imprisonment for the offence under Section 395, I.P.C.; ten years' rigorous imprisonment and a fine of Rs. 200/-and in default of payment of fine further to undergo three months' rigorous imprisonment for the offence under Section 397,1.P.C. and live years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo two months rigorous imprisonment for the offence under Section 460, I. P. C. D Dissatisfied with the judgment dated 21 -7-92, convicting and sentencing the accused-appellants, the appellants have preferred this appeal. 3. It is contended by the learned counsel for the appellants that the prosecution case mainly rests upon the identification of the accused by the prosecution witnesses and the recovery of some articles, but no reliance can be placed on the testimony of these prosecution witnesses and the conviction of the appellants, merely on the basis of the identification, cannot be made as the prosecution witnesses had no sufficient opportunity to take mental-note of the special features of the culprits as there was no light at the time when the incident took-place and the particulars of the special features of the culprits have not been given either in the First Information Report or in their statements recorded by the police at the investigation stage and, therefore, no conviction can be based on the identification of the accused, which was made after two months of the incident. It has, also, been contended by the learned counsel for the appellants that neither any list of the looted articles was furnished nor their description was ever given by the complainant side and it is only after the arrest of the accused-appellants and the recovery of the articles that the prosecution got the same identified as the articles belonging to the complaint party and as such no conviction can be based on such evidence. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that it was a moon-lit night and the time of the incident was only 10.00 p.m. and the accused-appellants remained there considerably for a long time and, therefore, there was every possibility of keeping in memory the faces of the accused and there was, also, every possibility of their being identified and they have been correctly identified by the witnesses in the identification parade held by PW 16 Smt. Kamal Nath - the learned Judicial Magistrate, Bikaner and the accused-appellants were, also, identified by the prosecution witnesses in the trial Court. It has, also, been submitted by the learned Public Prosecutor that though the list of the articles was not furnished but the particulars of the articles were given in the statements of the prosecution witnesses recorded under Section 161, Cr. P. C. and the witnesses have correctly identified these articles during the test identification as well as in the trial Court and, therefore, the accused-appellants have rightly been convicted and sentenced by the learned Sessions Judge. 4. I have considered the submissions made by the learned counsel for the parties. 5. Before dealing with the arguments advanced by the learned counsel for the parties, I would first like to refer to the evidence produced by the prosecution in support of its case. PW 1 Smt. Kamla, PW 2 Smt. Balwanti, PW 3 Smt. Umraowati, PW 4 Raj Kumar, PW 5 Pratap Singh, PW 6 Sumer Singh, PW 7 Veer Singh and PW 9 Hari Singh are the eight eye-witnesses of the occurrence, who were sleeping in their house when they were assaulted by the miscreants on 26-7-88 and who received a number of injuries on their persons during this assault - some of them were grievous in nature. The injuries found on the person of these witnesses were, both, by blunt weapon as well as by sharp weapons. This evidence is sought to be corroborated by the evidence of PW 8 Dr. Ram Ratan Balmiki - the Radiologist in P.B.M. Hospital, Bikaner - who medically examined injured Pratap Singh, Veer Singh and Sumer Singh and found fracture on their persons. He also, examined Smt. Umraowati and Hari Singh but the injuries found on their person were simple in nature. PW 10 Dr. Ram Chandra Godara was the Incharge at the Government Hospital at Chhattargarh, who examined PW 4 Raj Kumar but did not find any injury on his person. PW 16 Dr. P. N. Mathur was the Medical Jurist in P.B.M. Hospital, Bikaner, who examined the injured and found various injuries on their person. This evidence is further sought to be corroborated by the evidence of PW 14 Sahi Ram - the Sarpanch - who was a Motbir Witness, in whose presence the accused-appellants were arrested and the looted articles were recovered. The prosecution case is further sought to be corroborated by the evidence of PW A 15 Smt. Kamal Dutt - the then Judicial Magistrate, Bikaner - who conducted the identification of the accused-appellants and stated that the accused-appellants were correctly identified by the prosecution witnesses, viz., PW 4 Raj Kumar, PW 6 Sumer Singh, PW 3 Smt. Umraowati and PW 1 Smt. Kamla. This witnesses, also, conducted the identification proceedings for identification of the looted articles and according to her, PW 1 Smt. Kamla correctly identified her silver chain with locket and gold ear-rings; Smt. Balwanti identified the gold nose-nail and the silver Paijebs; PW 6 Sumer Singh identified the ladies wrist watch; PW 4 Raj Kumar identified the ladies watch and the transistor and PW 5 Pratap Singh identified the gents wrist watch. PW 11 Kishan Dan, PW 12 Hanuman Prasad, PW 13 Manphool Ram. PW 17 Gyan Prakash and PW 18 Murlidhar are the police witnesses. PW 11 Kishan Dan was the Malkhana Incharge on the relevant date, in whose presence the looted articles were deposited and the same remained in the sealed condition up to 26-10-88. He has stated that during this tenure, the articles remained in the same sealed condition as they were deposited in the Malkhana of the Police Station. PW 11 Kishan Dan was the Malkhana Incharge on the relevant date, in whose presence the looted articles were deposited and the same remained in the sealed condition up to 26-10-88. He has stated that during this tenure, the articles remained in the same sealed condition as they were deposited in the Malkhana of the Police Station. On 26-10-88, he handed-over the charge of the Malkhana to PW 13 Manphool Ram and PW 12 Hanuman Prasad, Constable, took the sealed articles from the Malkhana on 26-10-88 for F.S.L. examination and handed-over the same for F.S.L examination at the State Forensic Science Laboratory, Jaipur. PW 17 Gyan Prakash was the Assistant Sub-Inspector Police, who conducted the investigation at the initial stage and on his transfer, on 4-10-88 he handed-over the investigation to PW 18 Murlidhar, S.H.O., who completed the investigation, arrested the accused, made the recoveries and filed the challan. 6. The prosecution case mainly rests upon the identification of the accused-appellants and the recovery of the looted articles from the accused on their information and at their instance and the identification of the looted articles made by the prosecution witnesses. Neither the names of the accused nor their particular features or identification marks were given in the First Information Report nor in their statements recorded during the investigation by the police. None of the prosecution witnesses have given any description of the miscreants in their earlier statements. Neither any identification marks nor the structure of the accused, whether they were tall or small, black or fair in colour, fat or slim etc. was given by the prosecution nor any special feature was mentioned to keep their identification in mind. In the absence of any description of the appellants, it raises a suspicion that how the investigation agency was able to search out the accused and arrested them. The accused came at the place of the incident with muffled faces which is the consistent prosecution story but the witnesses have tried to make some improvement in this regard. When a specific question was put to the witnesses that in the earlier statements they stated that the accused were muffled faces then how they identified them, whereupon they denied the fact that the accused-appellants were muff led faces and tried to make an improvement in their statement and as such their testimony on this point does not inspire confidence. When a specific question was put to the witnesses that in the earlier statements they stated that the accused were muffled faces then how they identified them, whereupon they denied the fact that the accused-appellants were muff led faces and tried to make an improvement in their statement and as such their testimony on this point does not inspire confidence. Further, whether it was a Moon-lit night or it was a dark night or whether any light was available at the scene of the occurrence, no evidence has been produced by the prosecution in this regard either at the initial stage of preparing the site plan or in their statements recorded during the investigation. At the initial stage, the witnesses came with the case that all the accused were muffled faces and the witnesses awoke only after receiving the injuries inflicted by the miscreants. When the accused were muffled faces and the witnesses were awaken after receiving the injuries, therefore, there appears to be a little opportunity for these witnesses to have seen the faces of the miscreants as there is every likelihood of the minds of these witnesses being disturbed on account of the suddenness of the occurrence and due to receiving repeated blows on their person. The absence of mentioning the special features of the miscreants in the F.I.R. or in the statements of these witnesses recorded by the police, shows that the identification appears to be the result of some external aid and no reliance, therefore, can be placed on such identification. It has been held by the apex Court in the case of: Wakil Singh v. The State of Bihar, 1981 Cr LJ 1014 as under:- "In the Instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identifications marks, viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded." The incident took place in the night of 26-7-88, and the accused were arrested on 20-9-88, and the identification parade was held on 22-9-88, i.e., after three days of their arrest. The accused-appellants, during this period of three days, were kept in the Police Custody and were brought in the judicial lock-up for identification in the jail. The accused-appellants have specifically stated before the learned Judicial Magistrate that they were shown to the witnesses while they were in police custody. The identification of the accused by the witnesses after three days of their arrest and particularly when they were in the judicial lockup and showing them to the witnesses, suggest that this possibility cannot be ruled out and their identification becomes a farce, particularly in the circumstances when neither any description of the accused nor any identification marks of the accused were given by these witnesses in their earlier statements and, therefore, no conviction can be made on the basis of the alleged identification of the accused by the witnesses. The learned trial Court was, therefore, not justified in placing reliance over the evidence regarding identification of the accused-appellants by the witnesses. Further, PW 4 Raj Kumar alleges himself to be an Injured eye-witness. According to him, he was sleeping in the Court-yard and on receiving injury by a Lathi on his shoulder, he woke-up and ran away but no injury was found on his person by PW 10 Dr. Ram Chandra Godara, the Incharge, Government Hospital, Chhattargarh, who examined this witnesson 26-7-88. The absence of any injury on his person, his conduct of running-away from the place of the incident and nondisclosure of the particulars of the articles looted, makes his presence at the scene of the incident, doubtful. Even during the identification of the accused-appellants in the Court, this witness has merely stated that these three are the accused who came at the place of the occurrence along with two other persons. All these facts and circumstances suggest that no reliance can be placed on the alleged identification of the accused-appellants by the witnesses. 7. Even during the identification of the accused-appellants in the Court, this witness has merely stated that these three are the accused who came at the place of the occurrence along with two other persons. All these facts and circumstances suggest that no reliance can be placed on the alleged identification of the accused-appellants by the witnesses. 7. The other evidence, relied-upon by the learned lower Court against the appellants is the recovery of the looted article made on the information and at the instance of the accused from their possession and their identification made by the prosecution witnesses. The recoveries of the articles and their identification, on which reliance has been placed are the silver chain with locket and the ear-rings of PW 1 Smt. Kamla, silver Paijeb and gold nose-nail (Feeni) of PW 3 Smt. Balwanti, the recovery and identification of the ladies and gents wrist watches and the transistor and their identification by PW 6 Sumer Singh, PW 4 Raj Kumar and PW 3 Smt. Umrawati have specifically stated that when they went to Bikaner for identification of the accused, they went on a jeep. Chhattargarh comes in between their village and Bikaner. They stopped the jeep out-side the Police Station and one policeman sat with them in the jeep and travelled up to Bikaner. There is every possibility that this policeman might have given the details of the particulars of the accused to these witnesses which could have facilitated in the identification of the accused by these witnesses. It has, also, come in evidence that the foot-prints of four accused persons were found at the place of the occurrence, which proceeded towards village Kookli, i.e., at a distance of about fifteen kilometres. The moulds of the foot-prints were taken from the place of the incident. PW. 4 Raj Kumar and PW 14 Hari Singh have stated in their statements that the foot-prints were available at the place of the occurrence and the moulds of which were taken by the police. PW 17 Gyan Prakash, A. S. I., who investigated the matter, has, also, admitted the fact of the presence of the foot-prints and taking the moulds thereof. These moulds, taken by PW 17 Gyan Prakash, were deposited in the Malkhana but according to him, these moulds were not sent for the expert's opinion. PW 17 Gyan Prakash, A. S. I., who investigated the matter, has, also, admitted the fact of the presence of the foot-prints and taking the moulds thereof. These moulds, taken by PW 17 Gyan Prakash, were deposited in the Malkhana but according to him, these moulds were not sent for the expert's opinion. If the expert's opinion regarding the moulds would have been taken then that would have been a surer link to connect the accused with the crime. The non-production of the opinion of the Foot-print expert or not sending the moulds for experts opinion, raises a suspicion against the prosecution that the moulds taken by PW 17 Gyan Prakash were not that of the accused land the prosecution case, therefore, does not inspire any confidence on this point, also. 8. The next evidence, which has been relied-upon by the learned lower Court in convicting the accused-appellants is the recovery of the looted property at the instance and on the information supplied by the accused-appellants and their identification by the prosecution witnesses. No list of the looted property was given by the prosecution immediately after the occurrence or even thereafter. It is only in their statements that the witnesses have mentioned the articles which were looted by the accused. Even in those statements, the details of the articles or any identification mark thereof have not been given and it is for the first time when the test identification was held that these witnesses came and identified the articles. When the particulars of the looted property have not been given earlier nor any identification mark or any other identifiable specification has been given then the identification of these articles at the test identification parade and later on in the Court, cannot be relied-upon. The articles alleged to have been looted by the appellants, the recovery thereof and the identification of the articles by the witnesses, on which the learned trial Court has placed reliance while convicting the accused-appellants, are : silver chain with locket and ear-rings of PW 1 Smt. Kamla: silver Paijeb and nose-nail of Smt. Balwanti; ladies wrist watch of Sumer Singh; transistor of Raj Kumar and gents wrist watch of PW 5 Pratap Singh. The recoveries of these articles, according to the prosecution, have been made on the information supplied by the accused, at their instance and from their possession. The recoveries of these articles, according to the prosecution, have been made on the information supplied by the accused, at their instance and from their possession. The recoveries from appellant Kalu and Shishupal were made from a Kotha situated in Chak 3 G.D. One H.M.T. wrist watch and one silver Paijeb are alleged to have been recovered from accused Kalu Ram vide Ex. P. 20 and Ex. 27 and as per the information given by the accused under Section 27 of the Indian Evidence Act contained in Ex. P. 14 and Ex. P. 54. These recoveries are alleged to have been made at the instance and on the information supplied by accused-appellant Kalu Ram from the Kotha, which is situated in Chak 3 GD, which was unhabitated. One wrist watch and one radio are alleged to have been recovered from accused Shishupal. The information regarding the wrist watch is Ex. P. 49 and the recovery of the same was made vide Ex. P. 55 and the recovery of the radio was made vide Ex. P. 30. These recoveries were made from an unhabitated Kotha. Nobody was living in that Kotha or the area where it is situated. PW 14 Sahi Ram-the Motbir witness-has stated that the Kotha, from where the recoveries were made at the instance of accused Shishupal and Kalu, was unhabitated ("KOTHA GAIR-AABAD HAI AUR SOON A HAI"). PW 17 Gyan Prakash. A. S. I. - the Investigating Officer has, also, admitted that the Kotha, from where the recoveries were made, was unhabitated and has no doors and it was closed by putting bricks, which were removed by accused Kalu. He has, also, admitted that there was no boundary-wall around this unhabitated Kotha nor was there any fencing. The recoveries have therefore, been made from an open and unhabitated Kotha having no doors, fencing, boundary wall etc. which was accessible to all and sundry. Some of the recoveries were made from this Kotha on 28-9-88 and some on 30-9-88. The recoveries made from the open and unhabitated place, which is accessible to all and sundry, cannot be said to have been made on the information and at the instance of the accused-appellants. 9. Now, coming to the recoveries made from accused-appellant Hajari. As per the prosecution case, one nose-nail (Naak Ka Kooka), one gold ear-ring and gold chain were recovered from accused Hajari vide Ex. 9. Now, coming to the recoveries made from accused-appellant Hajari. As per the prosecution case, one nose-nail (Naak Ka Kooka), one gold ear-ring and gold chain were recovered from accused Hajari vide Ex. P. 31 and Ex. P. 32 and their information memos are Ex. P. 50 and Ex. P. 51. These recoveries were, also, made in two instalments - one on 20-9-88 and another on 25-9-88. The recoveries in the case of accused Hajari, were made from the open place accessible to all and sundry. PW, 14 Sahi Ram has stated that Haiari's cote (Baada) was in the field of Deep Singh and there was only old Chhappar and the other members of the family of accused Hajari were, also, living under that Chhappar. PW 17 Gyan Prakash, A.S.I., has stated that in the Barra of accused Hajari, from where the recoveries were made, some goods were lying and the animals were tied there. There was no hut or any enclosure and the place was open and accessible to all and sundry and, therefore, he did not give his search before making the recoveries. This witnesses has, also, admitted that the place, from where the recoveries were made, there were three ladies and some children and the Barra in question, from where the recoveries were made, was of Hajari's father and the children of Hajari, also, used to stay there. Thus, the recoveries, alleged to have been made at the instance and on the information of accused Hajari, also, cannot be said to have been made from his possession because the place, from where the recoveries were made, was an open place accessible to all and sundry and here, also, the recoveries were made in two instalments. These recoveries, therefore, cannot be said to have been made at the instance of accused, particularly when neither any list of the looted property was given by the complainant party prior to the recoveries nor any identification marks or any other specification with respect to these properties, were given, Moreover, PW. 2 Smt. Balwanti, in her statement before the Court, has not identified either the nose-nail (Naak Ka Kooka) or the silver Paijeb. The particulars of the articles, which are allegedly taken away by the accused, were given by the witnesses to Raj Kumar before he went to lodge the report of the incident. 2 Smt. Balwanti, in her statement before the Court, has not identified either the nose-nail (Naak Ka Kooka) or the silver Paijeb. The particulars of the articles, which are allegedly taken away by the accused, were given by the witnesses to Raj Kumar before he went to lodge the report of the incident. This statement has been given by PW 1 Smt. Kamla, PW 2 Smt. Balwanti and PW 3 Smt. Umraowati. PW. 4 Raj Kumar has, also, stated that the particulars of the looted property were given to him but still he did not give the list of these articles and has stated that he forgot to give the list of the looted articles at the time of lodging the report, but in the F.I.R. (Ex. P. 1) he has stated that as he was not present there, therefore, he cannot say what articles were taken away by the dacoits. Taking an over-all view of the evidence produced by the prosecution, it appears that probably no articles were taken-away by the accused in this incident because the articles, which are alleged to have been taken away by the accused, are of little value while the articles of more value were available in the house and were not taken away by the accused. Admittedly, a gold Hansli and the amount of Rs. 2500/- were found in the clothes which were searched by the accused but they were not taken away by them. The recoveries cannot be said to have been made on the information at the instance of the accused and from their possession. The prosecution has, therefore, failed to prove the recoveries of these articles from the possession of the accused or at their instance or on their information and, therefore, when the recoveries of these articles are not proved then their identification by the witnesses is of no consequence. The prosecution has, therefore, failed to prove the case against the accused-appellants beyond reasonable manner of doubt and the learned lower Court, therefore, committed an error in convicting and sentencing the accused-appellants. 10. In the result, the appeal, filed by the appellants, is allowed and the judgment, passed by the learned lower Court, convicting and sentencing the appellants for the offences under Sections 395, 397 and 460, I.P C., are quashed and set-aside and the appellants are acquitted of all these offences. The appellants are in jail. 10. In the result, the appeal, filed by the appellants, is allowed and the judgment, passed by the learned lower Court, convicting and sentencing the appellants for the offences under Sections 395, 397 and 460, I.P C., are quashed and set-aside and the appellants are acquitted of all these offences. The appellants are in jail. They may be released forth-with if not wanted in any other case.Appeal allowed. *******