JUDGMENT 1. - The prosecution case in short is that S.H.O. Salumber Shri Nathu Singh along with A.S.I. Bheru Singh and other police personnel's went to the village Sodala in a truck for recovery of a woman Mrs. Devli from one Nanga, who is resident of village Sodala. The police party went to village Sodala on a complaint made of kidnapping by one Shri Vala. The police party was informed that woman Devli was kidnapped by accused-Nanga of village Sodala. On information of presence of kidnapped woman being in village Sodala, the police party went to village to recover the woman. As soon as the police party reached the village Sodala and when they were proceeding towards the house of Nanga S/o Shri Ganga, a large crowd of villagers consisting of men and women of village Sodala assembled and started pelted stones and attacked the police party. The weapons used were stones, lathis, dharias and axes. A.S.I. Bheru Singh was carrying a rifle mark for Butt No. 113. Bheru Singh fired two gun shots in the air to dispurse the mob but did not succeed in his efforts. Accused Amara S/o Jagga, Amara S/o Dhanna and Kania S/o Valia, Valia S/o Vala, Harji S/o Vala and Kesha S/o Vala snatched the rifle from A.S.I. Bheru Singh and gave beating to him. Bheru Singh fell down and mob present at the spot thought that Bheru Singh has died and thereafter, they disbursed. Bheru Singh received two injuries, fracture on his nose and a simple injury on his head by sharp-edged weapon. Peons were named in the FIR as the members of the mob, who attacked the police party. The case under sections 307, 394, 147, 148, 149, 332 & 353 IPC was registered. On presentation of the challan, the charge was framed under section 333 r/w 149 & 397 IPC against 22 accused persons as they formed unlawful assembly on 19.6.1980. The common object of the assembly was to interfere with the discharge of the duties of public servant S.H.O., Police Station, Salumber and in furtherance of the common object Amara S/o Dhanna inflicted a lathi blow on the nose of Bheru Singh and caused grievous hurt and the members of the unlawful assembly attacked the police party and Nathu Singh in order to kill them with dangerous weapons. 2. 2. Before the statements of the accused persons under section 313 Cr.P.C. was recorded, 11 accused persons were acquitted out of 22 accused. The trial commenced and completed against only 11 accused persons. The learned Additional Sessions Judge held Gota S/o Vela to have committed an offence under section 397 IPC and sentenced him for 8 years R.I. with fine of Rs. 2,000/- and in default one year R.I., Amara Sic) Dhann. a under section 325 IPC and sentenced him for 4 years R.I. and fine of Rs. 1,000/- and in default six months R.I. Amara S/o Jagga under section 324 and sentenced him for 3 years R.I. and fine of Rs. 1,000/- and in default six months R.I.. Before the learned Additional Sessions Judge most of the police witnesses produced by the prosecution were declared hostile as they did not support the prosecution case. The learned Additional Sessions Judge castes serious aspirations against the police personnel's and investigating agency. However, the learned Additional Sessions Judge has relied upon certain portion of the statement of the hostile witnesses to support the portion of the statement made by other hostile witnesses and on that basis passed the order of conviction. 3. The learned counsel for the appellants has submitted before the Court that so far accused-Gota is concerned, that he has produced the gun in the Police Station, there is no statement of any of the witnesses that he has removed the gun from the possession of Bheru Singh and thereafter, the gun was produced in the Police Station. In the absence of any evidence of snatching or forcibly taking possession of the gun from Bheru Singh, no punishment can be imposed on accused-Gota under section 397 IPC. 4. In the FIR (Ex. P/55) lodged by Nathu Singh, he although named certain other accused persons, to have snatched the gun from the possession of Bheru Singh, the name of Gota is not one of them. From the very beginning of the investigation when the FIR was lodged, accused-appellant-Gota was not named to I be a person, who has snatched the gun from Bheru Singh. Recovery Memo (Ex. 52), which has been relied upon by the prosecution and also by the learned Additional Sessions Judge mentions that accused-Gota has produced the gun before the police but witness Mangi Lal, PW 10 who is witness of Ex. Recovery Memo (Ex. 52), which has been relied upon by the prosecution and also by the learned Additional Sessions Judge mentions that accused-Gota has produced the gun before the police but witness Mangi Lal, PW 10 who is witness of Ex. P/2 and declared hostile has said that the rifle was produced by 3-4 accused persons, whose name he did not know. He has signed the memo without reading it. He does not remember that the rifle was produced by accused-Gota or not. The witness does not say that the rifle was produced by accused-Gota before the police. Other witnesses examined by prosecution Bhagwan Lal PW 7 also does not say that the rifle was produced before him by accused-Gota before the police. The fact of prosecution of the gun in the Police Station by accused-Gota in the aforesaid circumstances itself is doubtful. Even assuming that the gun was produced by Gota before the police, that does not by itself constitute an offence under section 397 IPC unless it is proved by positive evidence by the prosecution that the gun was forcibly snatched or removed from the lawful custody. In the absence of the evidence to that effect, the conviction of the accused-Gota under section 397 IPC is unsustainable. The reasoning adopted by the learned Additional Sessions Judge for convicting the accused-Gota is rather strange. According to him when the gun was carried by Bheru Singh at the time of the incidence and later on when the same gun was produced before the police, it shall be presumed that the accused-Gota has forcibly taken the gun from the possession of Bheru Singh and thereafter, the same was produced before the police. In my view such a presumption cannot be drawn in law. On the basis of the evidence laid by the prosecution, it is not proved that accused-Gota has committed an offence under section 397 IPC. 5. The Another aspect of the case is whether the prosecution has proved the fact that Amara S/o Jagga and Amara S/o Dhanna has caused injuries to Bheru Singh and therefore, liable for conviction under sections 324, 325 IPC. 5. The Another aspect of the case is whether the prosecution has proved the fact that Amara S/o Jagga and Amara S/o Dhanna has caused injuries to Bheru Singh and therefore, liable for conviction under sections 324, 325 IPC. To prove this fact, the prosecution has examined Khuman Singh, PW 1, who has although stated that the villagers assembled at the time of the incident have attacked the police party with stones and lathis, but did not name both Amaras to be the persons who have caused the injuries to Bheru Singh. Ram Lal, PW 3 has identified Amara S/o Dhanna and Amara S/o Jaga to be persons involved in quarrel but did not specifically named them to have caused injuries to Bheru Singh. He has also said that he is not in a position to identify the persons, who were involved in the quarrel. Coupled with this fact no identification parade was conducted and therefore, it is not safe to rely on rely on the dock identification by this witness of both Amaras. Vikram Singh, PW 4 made a general statement that the villagers came to the spot and they have pelted stones. Some of them were carrying "kulhari" "farsis" and "sticks". He has further said that he did not know the names of those persons involved in the quarrel as he went to the village for the first time. Thus, this witness also does not support the prosecution case and the witness was also declared hostile. Ganpat Lal, PW 12 has made a general statement that about 30-35 persons have attacked the police party and that Amara S/o Jagga has caused injury to Bheru Singh by "Dharia". But in the cross-examination, he has admitted that he has not seen Amara prior to the incidence and he has seen him in the Court for the first time. He has not given any description of Amara when his statement was recorded by the police. In the absence of the test identification parade, the dock identification of Amara for the first time in the Court by this witness cannot be relied upon. Vala PW 11 is a star witness of the prosecution. He has said that Amara S/o Jagga and Amara S/o Dhanna both have caused injuries to Bheru Singh. But, the learned Additional Sessions Judge in paragraph 15 of his judgment has declared this witness not very much reliable. Vala PW 11 is a star witness of the prosecution. He has said that Amara S/o Jagga and Amara S/o Dhanna both have caused injuries to Bheru Singh. But, the learned Additional Sessions Judge in paragraph 15 of his judgment has declared this witness not very much reliable. This witness is an interested witness as it appears that at his instance, the policy party went to village Sodala to recover Smt. Devu. In the absence of both Amaras, named in the FIR to have caused injuries to Bheru Singh, the statement of this unreliable interested witness cannot be relied, Nathu Singh, PW 13 has said that Amara has caused injuries by dharia on the head of Bheru Singh, but he cannot identify the accused-Amara. He has further stated that the second Amara has caused injury to Bheru Singh on his nose by lathi, but he is not in a position to identify this accused also. On the face of this statement, this witness cannot be relied upon for the purposes of proof that both Amaras have caused the injuries to Bheru Singh. The order of conviction against both the accused-Amaras was passed by the learned 'Additional Sessions Judge by adopting similar method of picking up same statement of the unreliable witnesses to corroborate the portion of the statement of other unreliable witnesses. In Muluwa S/o Binda & Ors. reported in AIR 1976 SC p. 994 at paragraph 18, the Hon'ble Apex Court has said : "It is elementary that the evidence of an infirm witness is not reliable merely because it has been corroborated by a number of witnesses of the same brand, for, evidence is to be weighed not counted." 6. The procedure adopted by the learned Additional Sessions Judge of appreciating the evidence is not permissible in law. On overall consideration of the evidence laid by the prosecution, it is clear that the member of the police party, who went to spot to recover the girl has not supported the prosecution case and in this circumstances, the statement of interested witness Vala PW 11, who himself has been declared to be not very much trustworthy by the learned Additional Sessions Judge could be relied upon for convicting both accused-Amaras. The prosecution has completely failed to prove the guilt against accused-appellants.For the reasons stated here-in-above, the appeal filed by the accused-appellants is allowed. The prosecution has completely failed to prove the guilt against accused-appellants.For the reasons stated here-in-above, the appeal filed by the accused-appellants is allowed. The judgment and sentence passed by the learned Additional Sessions Judge is set aside.Appeal allowed. *******