S. N. TRIPATHI, J. ( 1 ) ACCUSED Pitam alias Putua and Babu Lal have been convicted on a charge u/s. 412 IPC by the jjjrd. Addi. Sessions Judge, Fatehpur, vide his judgment and order dated 19. 2. 1979 passed in S. T. No. 265/76, State v. Rameshwar and 5 others. They have been sentenced to undergo 3 years R. I. ( 2 ) A dacoity was committed on 12. 9. 1974 at about 10 P. M. at the house of Jangli and others. Apart from other looted properties, one Baja given at serial No. 1 belonging to Jangli in the F. I. R. and one Harmonium had also been looted from the house of the complainant. The F. I. R. was lodged on 3. 9. 1974 at about 2. 05 A. M. after negotiating a distance of 8 miles. The accused were not named in the F. I. R. In the course, they were arrested by the Police, put up for the test identification parade and challaned. Accused Rameshwar, Siya Ram, Ganga Ram and Ram Narain were charged u/s. 395 IPC. The court acquitted them after extending them benefit of doubt. However, the accused Pitam alias Putua and Babu Lal, appellants, were convicted on the charge u/s. 412 IPC and convicted and sentenced as noted above the accused appellants before them. They also denied the recovery of the looted properties from them. However, they admitted their signatures on the recovery memos, exhibit ka 10 and ka H. They further stated that their signatures had been obtained on the recovery memos at the police station. Then the court was left with the only and solitary witness Inspector Basudeo Sahai, who had allegedly made recoveries. Relying upon the rulings of this Court as well as Supreme Court to the effect that the police witness statement was sufficient for conviction, learned Addi. Sessions Judge recorded the conviction as noted above. ( 3 ) FEELING aggrieved, the accused have come to this Court in the present appeal. ( 4 ) I have heared learned counsel for the parties at stretch and gone through the record. I find that there is much force in this appeal and it deserves to be allowed. Sessions Judge recorded the conviction as noted above. ( 3 ) FEELING aggrieved, the accused have come to this Court in the present appeal. ( 4 ) I have heared learned counsel for the parties at stretch and gone through the record. I find that there is much force in this appeal and it deserves to be allowed. ( 5 ) THE primary question for determination in such a case will be as to whether the disputed Harmonium and transistor belonged to the complainant Jangli and whether they had been, in fact, looted. A look at the recovery memos, page 17 of the paper book shows that one transistor Pioneer, three band with a handle and aerial had been recovered. Whereas, its description given in the F. I. R. is simply one Baja. Similarly on;e harmonium of red colour, used, was recovered from the accused Pitam vide paper No. 18 Whereas, the description given in the F. I. R. is only one Harmoniym without its colour and other details,, Therefore, it is difficult to conclude that the articles allegedly recovered from the accused were the same which have been referred to in the F. I. R. Under these circumstances, a strong benefit of doubt can be extended to the accused on this point that the articles description allegedly recovered), do not tally with the description of the same given I the F. I. R. ( 6 ) THE learned Addi. Sessions Judge has considered this point that both the public witnesses of recovery, namely, Naresh Prasad and Pyare Lal had not supported the prosecution case. Simply because they bad admitted their signatures on the recovery memos, it will not be sufficient in the circumstance of the case to record a conviction. If their admission on the point of signature is to be accepted, other part of their explanation has also to be taken into consideration that their signatures had been obtained on the recovery memos at the police station. One part of the same admission cannot be accepted and the other part rejected. The admission has to be taken as a whole, either to be accepted or to be rejected. Therefore the learned Addi. Sessions Judge has committed an error in accepting only a part of the admission made by the witnesses. One part of the same admission cannot be accepted and the other part rejected. The admission has to be taken as a whole, either to be accepted or to be rejected. Therefore the learned Addi. Sessions Judge has committed an error in accepting only a part of the admission made by the witnesses. Despite a lengthy cross-examination meted out to these witnesses, it has not been proved to the hilt that these witnesses had intentionally tried to disown the truth and they show falsely in favour the accused. Therefore, there is no reason why it should not be taken as correct that their signatures were obtained at the recovery memos at the police station. Hence the entire legend of recovery shall be rejected. ( 7 ) THERE cannot be any dispute with the legal composition that in a given case if the police witness is credible to his evidence can be accepted. Totality of the circumstances have also to be taken into consideration. When two witnesses of the public were procured and in their presence, allegedly recoveries were affected and they have now disowned it with a cogent explanation that, in fact, no recovery was made in their presence from the spot and in fact, they were made to sign the recovery memos at the police station, this circumstance could not be dissected from the main story while appreciating the evidence of police Inspector Basdeo Sahai. ( 8 ) AT page 24 of the judgment, the learned Add!. Sessions Judge has observed in the 8th line from the bottom but this much is certain that they were present at the time of recovery and they have signed the recovery memos of Ex. ka 10 and ka 11. The learned Addi. Sessions Judge has committed an error in coming to this conclusion. The witnesses have categorically stated that they were not present at all at the time and place of recovery. Their statements have to be read in the proper context. Simply because they have admitted their signatures in the recovery memos, no presumption will arise in favour of the prosecution that they were in fact present on the spot as alleged by the prosecution. Hence their admissions, on which the conclusion is based, is not free from doubt. Their statements have to be read in the proper context. Simply because they have admitted their signatures in the recovery memos, no presumption will arise in favour of the prosecution that they were in fact present on the spot as alleged by the prosecution. Hence their admissions, on which the conclusion is based, is not free from doubt. ( 9 ) IN a solitary place where only police witnesses are available and public witnesses are not at all available and when police witnesses appear in the Court and if their evidence is credible, the court can rely upon it. But when there are public witnesses but they not only refuse to support the prosecution case but they also strongly oppose the truthfulness of the prosecution case, the solitary statement of the police officer cannot be accepted. ( 10 ) THE other circumstance taken into consideration by the learned Addi. Sessions Judge has been noted at page 25 of his judgement. This circumstance is that the accused do, not claim the articles as their own. Therefore, the learned Addi. Sessions Judge believed that it must be held to be belonging to the prosecution witnesses. This is again a fallacious approach, when the recovery itself becomes doubtful the accused need not claim these articles as their own for getting an acquittal. ( 11 ) ANOTHER important circumstance is that it is not proved as to how the witnesses could know that those articles had been looted in the course of the dacoity. It has to be proved to the hilt for recording a conviction u/s. 412 IPC that the possession of the propertyts would be in the knowledge or reasonable belief that it had been transferred by commission of dacoity of dishonestly received from a person whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits. These are two important factors for proving a case u/s. 412 IPC. They have not been proved on record to the satisfaction of the court. ( 12 ) TAKING all these factors into consideration, I find that the prosecution has failed to prove the charge u/s. 412 IPC against the accused Pitam alias Putua and Babu Lal, appellants. Therefore, they deserve to be acquitted. ( 13 ) THE appeal is allowed. The order of conviction and sentence passed by the learned Addi. Sessions Judge dated 19. 2. Therefore, they deserve to be acquitted. ( 13 ) THE appeal is allowed. The order of conviction and sentence passed by the learned Addi. Sessions Judge dated 19. 2. 1979 against the appellants aforesaid is set aside. The accused are in Jail. They shall be released forthwith, if not required in some other case. Appeal allowed. .