JUDGMENT T.P.Garg (1.) THIS appeal by Ram Briksh, appellant, is directed against his conviction under Section 412, I.P.C. and sentence to undergo Rigorous Imprisonment for ten years passed by Shri S. N. Tewari, 1st Addl. Sessions Judge, Ghazipur vide his judgment dated 12.10.1979. (2.) BRIEF facts giving rise to the present appeal are as under : "In three Sessions Trials bearing numbers 30, 31, and 44, all of 1978, Ram Briksh, appellant, along with six others, was tried for various offences. While others were charged under Section 396, I.P.C. for having committed dacoity with murder at about 1 a.m. on 16.8.1977 in village Samogar, P.S.Sadar, District Ghazipur in the house of Raj Kumar and Ram Janam, and committed the murder of Balram, Ram Briksh along with one other was charged under Section 412, I.P.C. for retaining the looted property during the course of aforesaid dacoity. On the night between 15th and 16th August, 1977, there was a dacoity committed by Budhi Ram and others along with 6-7 persons at the house of Raj Kumar. During the course of dacoity, Balram was murdered and valuables of Raj Kumar and Ram Janam, P.Ws. 1 and 2, were taken away by the accused of that case. It is alleged that the accused were armed with deadly weapons. A case was registered on the report made by Ram Kumar P.W. 1 vide F.I.R. Ex Ka-7. The investigation of the case was taken by Sub Inspector Ram Adhar Singh immediately after the report was lodged. During the course of investigation, it was revealed that some of the looted property was sold to Ram Briksh, accused/appellant. Consequently, Ram Briksh accused was arrested and a number of utensils were recovered at his instance. These utensils were taken in possession vide recovery memos Ex ka 6 and 7 and a site Plan Ex Ka 32 of the place of recovery was prepared. The recovery was made in the presence of Musafir Rai and Hira Lal, two independent witnesses. The utensils alleged to have been recovered at the instance of Ram Briksh accused are Batuli Kaskut, four lotas Kaskut, Gilas, Thali, two Parats Pital, one Kotora and one Tasla. The estimated value of the recovered articles was stated to be Rs. 265/-. Hence Ram Briksh accused was also challenged under Section 412, I.P.C. and he was put to trial accordingly. The estimated value of the recovered articles was stated to be Rs. 265/-. Hence Ram Briksh accused was also challenged under Section 412, I.P.C. and he was put to trial accordingly. (3.) IN the trial that followed, prosecution examined as many as 15 witnesses and relied upon a number of recovery memos. The statements of accused were recorded under Section 313, Cr. P.C wherein they denied the allegations and stated that it was a false case against them. Ram Briksh while denying the allegations stated that the village folks asked him to give them goods on credit and since he did not accept their request, they have falsely involved him in the present case. IN their defence, the other accused examined two witnesses but their evidence does not relate to the appellant before this Court. The learned trial Judge held only Ram Briksh guilty under Section 412, I.P.C., convicted and awarded him aforesaid sentence while acquitting all other accused for the charge under Section 396, I.P.C. Sheonath accused was also charged under Section 412, I.P.C. and he was also acquitted. Hence the present appeal by Ram Briksh accused alone. (4.) THE learned counsel for the parties have been heard and record of the case gone through. THE appeal deserves to be allowed. The evidence of Musafir Rai P.W. 6 and B. K. Singh, Station Officer, P.W. 14, has been relied upon to base the conviction of Ram Briksh accused. It is alleged that during interrogation of Sheonath alias Bengali, Subha Yadav and Faudi, it was revealed that the looted property was sold to Ram Briksh accused. Sri B. K.Singh, Station Officer, who came in witness box as P.W. 14, has stated so. He has further stated that the untensils were recovered on pointing out by Ram Briksh accused in presence of Gayadeen, which were taken into possession vide memo Ex Ka 6 attested by Sheo Prasad, Hira, Lal Ram, Musaflr Rai, Om Prakash Rai and Ram Briksh besides himself. He has further stated that the untensils were recovered on pointing out by Ram Briksh accused in presence of Gayadeen, which were taken into possession vide memo Ex Ka 6 attested by Sheo Prasad, Hira, Lal Ram, Musaflr Rai, Om Prakash Rai and Ram Briksh besides himself. On being cross examined on behalf of Ram Briksh accused, B. K.Singh P.W. 14 has stated that the search of Ram Briksh accused was made on 18.8.1977 at about 12.00 o'clock noon ; that prior to his search Sati Ram accused was arrested at about 10 a.m. and thereafter, he went to the house of Ram Briksh accused; that Ram Briksh accused was found present in his house and was arrested; that he tried to run away but he was arrested and in the process, he also received injuries ; that the statement of Ram Briksh was recorded in the presence of the witnesses, who were also present with him ; that he had not seen the shop of accused from where the recovery was made ; that old utensils were lying in the shop and there was no new utensil. He has denied that the alleged shop was open and his wife was sitting there. He denied knowledge if Ram Briksh accused lives there with his wife and sons. He could not give details of utensils allegedly recovered at the instance of the accused. He has denied the suggestion that the alleged recovery was made from a sugarcane field and the same was foisted upon the accused. He has also denied that utensils were shown to the witnesses before making them in a sealed parcel. He also denied the suggestion that Ram Briksh accused has been falsely implicated at the instance of B. K.Tewari, Station Officer, Saidpur. (5.) FROM the evidence of this witness, it is made out that no statement of alleged disclosure under the provisions of Section 27 of the Evidence Act of Ram Briksh accused was recorded by him. Musafir Rai P.W. 6 is the only witness in whose presence the alleged recovery of utensils is said to have been made. But then the statement of this witness makes an interesting reading. He was stated that Sita Ram accused was arrested from his house on 18.8.1977 in his presence and his house search was made. Musafir Rai P.W. 6 is the only witness in whose presence the alleged recovery of utensils is said to have been made. But then the statement of this witness makes an interesting reading. He was stated that Sita Ram accused was arrested from his house on 18.8.1977 in his presence and his house search was made. He goes on to say that a recovery memo of his house search Ex Ka-5 was prepared and he signed the same. Coming to Ram Briksh accused he has stated that the Station Officer had searched the house of Ram Briksh accused on that very day i.e. on 18.8.1977; that Ram Briksh accused was arrested from his house ; that the Station Officer had recovered all utensils from the house of Ram Briksh; that recovered utensils were made into a sealed parcel and taken into possession vide memo Ex Ka 6 and arrested by him. In his cross examination, he has stated that when they arrived at the house of Ram Briksh accused, he was found sitting outside the shop, which was open ; that all his children were sitting inside the shop ; that his three sons and wife live there; that his two sons also live there with their children. He could not say as to which member of family lives in which particular room. According to him, 10-15 persons of village were present at that time. FROM the evidence of this witness, it is made out that it is not a case of recovery in pursuance of a disclosure statement alleged to have been made by Ram Briksh accused. FROM his evidence, the case seems to be a case of house search, and not of recovery in pursuance to a disclosure statement. Further, it is also made out that the alleged recovery was from the house/shop which was not only in possession of the accused but also his wife and three sons, out of whom, two sons live with their families there. FROM his evidence it is made out that the accused was never interrogated nor did he make any disclosure statement nor led to any such recovery. As per the evidence of B. K. Singh, Station Officer, the recovery was made from the shop; and the utensils were lying on a Patri in the shop and were not concealed. FROM his evidence it is made out that the accused was never interrogated nor did he make any disclosure statement nor led to any such recovery. As per the evidence of B. K. Singh, Station Officer, the recovery was made from the shop; and the utensils were lying on a Patri in the shop and were not concealed. FROM the evidence on record, it is thus made out that the utensils were lying in open on a Patri in the shop and were not concealed by any stretch of imagination. All this makes the recovery in pursuance to the disclosure statement highly doubtful. A perusal of the recovery memo Ex Ka 6 also goes to show that the recovery was made as a result of house search and not in pursuance to a disclosure statement. The title of the recovery memo indicates that it was the result of house search, and reads as "Fard Khana Talashi va Baramadgi Bartan". Then title of recovery memo no where shows that the recovery was made on the statement of the accused. FROM all this, it is rather clear that the Investigating Officer has tried to make it a case of recovery in pursuance to a disclosure statement although as per evidence on record, it is a case of house search. This clearly suggests that there is an attempt towards padding on the part of the Investigating Officer, which has rendered the prosecution story unreliable. (6.) MOREOVER, even the utensils alleged to have been recovered at the instance of the accused are not proved to be the subject matter of dacoity. In the F.I.R. Ex ka 7, there is no mention of any such utensils having been stolen or taken away during the course of dacoity, rather the F.I.R. is completely silent with regard to the theft of any such utensils. In the absence of any such report about the theft of utensils, the prosecution has failed to prove that the utensils allegedly recovered at the instance of Ram Briksh accused were the articles which were subject matter of dacoity. Obviously, therefore, the goods allegedly recovered from the possession of the accused having not been proved to be stolen during the course of dacoity it is doubtful that Ram Briksh accused was the receiver of any such stolen property. Obviously, therefore, the goods allegedly recovered from the possession of the accused having not been proved to be stolen during the course of dacoity it is doubtful that Ram Briksh accused was the receiver of any such stolen property. No doubt the recovery is shown to have been made after the occurrence, but then the statement of Raj Kumar P.W. 1 does not go to prove that any such utensil was stolen. He was cross examined with regard to the alleged theft of utensils and he has stated that he did not remember the utensils at the time of making the report. No cogent reasons have been given by this witness or the prosecution about not saying anything with regard to the theft of utensils in the report. Thus, when the articles allegedly recovered from the possession of the accused have not been proved to be the subject matter of dacoity beyond reasonable doubt and the recovery is also not free from doubt, the offence under Section 412, I.P.C. is not proved against the accused beyond reasonable doubt. The utensils are stated to be the property of Ram Janam and Raj Kumar P.Ws. but as stated above, in their earlier version to the police, none of these P.Ws. had stated about the theft of any utensils. However, they have stated that they had identified the utensils in a test identification the memo qua which is Ex Ka 44. But even test identification of utensils is not free from doubt. It has been frankly admitted on behalf of the State that the utensils alleged to have been recovered are the common articles of daily household use. There is no specific mark of identification on any of the utensils. Ram Janam P.W. has admitted in his cross examination that there was no special mark of identification on any of his articles which were subject matter of dacoity. It is thus made out that when such type of utensils are commonly available in the market, their test identification becomes meaningless particularly when there was no special mark of identification on any of the utensils. The test identification of utensils does not carry much weight nor does it go to prove beyond reasonable doubt that the utensils allegedly recovered from the possession of the accused were the subject matter of dacoity. The test identification of utensils does not carry much weight nor does it go to prove beyond reasonable doubt that the utensils allegedly recovered from the possession of the accused were the subject matter of dacoity. It becomes all the more doubtful when it is seen that there is no mention of utensils in the F.I.R. which is said to have been recorded soon after the occurrence. The recovery is itself doubtful because the shop from where it is said to have been made was in joint possession of not only the accused but his three sons and his wife and where two of his sons live with their families. MOREOVER the utensils alleged to have been recovered are said to be lying on the open Patri in the shop where the same was in no way concealed. A case of house search is shown to have been converted into a case of recovery in pursuance to the disclosure statement of the accused, which is clearly padding on the part of the Investigating Officer, which further makes the same doubtful. MOREOVER, even in the list of articles allegedly stolen after the commission of crime, there is no mention of the theft of utensils. In case there had been any theft of such utensils, there was nothing to prevent Ram Janam and Raj Kumar, P.Ws. to make their statements and supply a list of articles subsequently found to have been stolen during the course of crime. In the absence of any such thing on record, the whole thing seems to be shrouded in mystery, thus making the prosecution story all the more doubtful. In view of the above discussions, the conviction of the accused cannot be sustained. Consequently, the appeal is accepted and the conviction and sentence of the accused are both set aside and he is acquitted. His bail bonds are discharged. The release warrants of the accused be sent immediately by the trial Judge in case he is still in custody. Appeal allowed.