Judgment 1. ORDER :- The sole appellant, Munna Mahto alias Munna alias Sanjay Kumar, was convicted under Ss. 395 and 412, I.P.C. He was sentenced to undergo R.I. for five years under each of the above sections. Both sentences were directed to ran concurrently. 2 The case of the prosecution, as recorded in the written report of the informant, Rakatu Prasad Mahto, Head Cashier, Allahabad Bank, Sitabdiars, is that on 23-9-97 the informant in the company of Peon Ramdas Ram was ordered by the Manager of the Sitabdiara Branch of the Bank to bring money from the Main Branch of this bank at Chapra. He left Sitabdiara at 8 a.m. and reached Chapra at about 12 noon. He handed over the letter to the Manager of the Bank at Chapra which he had brought from the Assistant Manager of the Branch of the Bank at Sitabdiara. He had to bring Rs. 3.00 lacs of money out of which there were 2 thousand currency notes of 100 denomination and there were 2 thousand currency note of 50 denomination. He put the aforesaid total amount in a water proof light green colour bag. Then the informant and the peon both came to the Bus Stand Chapra in a Rickshaw at about quarter to 2 p.m. Thereafter they took their seats in a Jeep. Both were sitting on the front seats of the jeep. The informant kept the bag in between himself and the peon. The Jeep was occupied by ten persons including the Driver and Khalasi. Subsequently the driver loaded a box on the jeep after going to a particular place. When the jeep proceeded ahead loading the box and reached near a Petrol Pump at 3.15 P. M., four Motor Cycle borne criminals followed the Jeep and overtook it from two sides. One of the Motor Cycles was Rajdoot and the other was Hero Honda and both these Motorcycles were occupied by two persons on each. The criminals threw chilly powder into the eyes of the driver. The driver stopped the vehicle. The peon accompanying the informant also received chilly powder into his eyes. One of the criminals boarding the Rajdoot Motorcycle came to the informant and pointed rifles to his stomach and snatched the bag in which the money was kept and thereafter all the four criminals fled away. The informant claimed to identify the criminals along with his peon. The peon accompanying the informant also received chilly powder into his eyes. One of the criminals boarding the Rajdoot Motorcycle came to the informant and pointed rifles to his stomach and snatched the bag in which the money was kept and thereafter all the four criminals fled away. The informant claimed to identify the criminals along with his peon. He also gave physical features of the criminals in his written report (Ext. 2). 3. On the above written report a case was registered (F.I.R., Ext.-4) and after investigation and on submission of the chargesheet, cognizance, commitment of the case, the accused-appellant, faced trial and was convicted and sentenced as stated above. 4. The accused denied the charge and alleged false implication. Before I proceed to examine the evidence, it is worthwhile to refer to the charges framed against the appellant, who was charged under Secs. 395, 412 and 120(B), I.P.C. 5. The prosecution examined four witnesses to prove its case and brought on the record seizure list (Ext. 3). Case diary (Ext. 5) besides the formal F.I.R. (Ext. 1) and written report (Ext. 2) and Material Ext. I which was the amount of R. 3800.00 allegedly seized from the house of the accused. 6. P.W. 4 was the I.O. of the case, P.W. 3 was the informant, P.Ws. 1 and 2 are the seizure list witness regarding the seizure of Rs. 3800.00 from the house of the appellant. 7. So far the evidence of P.W. 3 is concerned, he has, of course, supported thealleged occurrence of robbery committed by four miscreants at the alleged place and time as referred to in the written report. On the particulars of the alleged occurrence P.W. 3 remains unshaken and unambiguous. The concerned peon was not examined. So, even if, it is assumed that there was an occurrence in which money in possession of P.W. 3 was robbed on the High Way, it is to be considered whether the appellant can be connected with the aforesaid occurrence in any manner. 8. On this point, there is the evidence of P.Ws. 3 and 4 both who recovered some of the said notes. The appellant was put on Test Identification Parade, but he could not be identify by P.W. 3 who alone, perhaps, attended the T.I. Parade. 8. On this point, there is the evidence of P.Ws. 3 and 4 both who recovered some of the said notes. The appellant was put on Test Identification Parade, but he could not be identify by P.W. 3 who alone, perhaps, attended the T.I. Parade. This P.W. 8 has stated at paragraph 8 that he did not identify any of the suspects in the T.I. parade. So, the appellant cannot be connected with the alleged occurrence of robbery on the basis of the evidence of P.W. 3. There is no other evidence on the point of occurrence. The evidence of P.W. 4, the I.O., is regarding the alleged recovery of money from the house of the accused on the basis of which the accused has been charged under Sec. 412, I.P.C. The factum of recovery can either lead to the inference that the accused was involved in the alleged occurrence of robbery or that he had received the looted money. But since he has not been identified by P.W. 3, he can at best he fastened with the guilt of receiving the looted money, under Sec. 412, I.P.C. Now it is to be seen whether the alleged recovered money according to the evidence of P.W. 4, is, of course, the part of the alleged looted money or whether of course, there was any seizure from the house of the accused. The accused in his cross-examination under Sec. 313, Cr.P.C. has denied the alleged seizure of any money from the house though he admitted his arrest. So, now I shall examine the evidence of P.Ws. 1, 2 and 4 to find out whether the charge under Sec. 412, I.P.C. can be proved against the accused appellant on the basis of the evidence. In this connection, P.Ws. 1 and 2 both are not at all helpful to the prosecution. P.W. 1 said that on 27-9-97 the Daroga had searched the house of the accused. He signed the seizure list at 11 A.M. (Ext. 1). But at paragraph No. 2 this witness said that no article was seized in his presence. At this stage, this witness was declared hostile and cross-examined by the prosecution. He denied that the police seized Rs. 3800.00 from the house of the accused and one Motor Cycle No. BRD 8370. He signed the seizure list at 11 A.M. (Ext. 1). But at paragraph No. 2 this witness said that no article was seized in his presence. At this stage, this witness was declared hostile and cross-examined by the prosecution. He denied that the police seized Rs. 3800.00 from the house of the accused and one Motor Cycle No. BRD 8370. In cross-examination by the accused, he said that neither the police officer searched the house of the accused in his presence at any article was seized. So, the evidence of P.W. 1 is totally negative adding nothing to the prosecution case. P.W. 2, in his chief, identified his signature of seizure list, Ext. 1/1. He further said that Rs. 3800.00 and one Rajdoot Motor Cycle were seized from the house of the accused. But in the cross-examination by the accused he said that he had met the police officer in the thana. He put his signature on the Seizure list in the thana. There was not seizure and recovery in his presence. So, whether evidence was extracted from P.W. 2 was spoiled by statement in his cross-examination. So, the two seizure list witnesses failed to add any piece of evidence regarding the alleged recovery in the prosecution case. So far the evidence of P.W. 4 is concerned it is to be noted that he had said that he went to the house of the accused on suspicion on 27-9-97. The raiding party was headed by Deputy Superintendent of Police, Sri Amzad Ali. However, this Amzad Ali has not been examined. At paragraph 3 P.W. 4 stated that the accused was arrested in his house itself and his so-called confessional statement was recorded there itself. The accused confessed his guilt and disclosed the name of his accomplishes and as pointed out by the accused, an amount of Rs. 3800.00 was recovered from west facing room kept in a bag. This bag contained 76 currency notes of 50 denomination amounting to Rs. 3800.00 . So on the basis of the recovery, the prosecution seeks to fix the accused with the charge under Sec. 412, I.P.C. But the point is whether evidence of P.W. 4 is reliable. In this connection, the confessional statement has been proposed to be relied upon by the prosecution, but, at per settled principle of law under Sec. 27 of the Evidence Act. In this connection, the confessional statement has been proposed to be relied upon by the prosecution, but, at per settled principle of law under Sec. 27 of the Evidence Act. Only that part of the confession which leads to the recovery can be admitted. So, if the accused had pointed out the place from where the money was recovered, evidence to this effect only is admissible. But, now in this connection, the only and the solitary testimony is that of P.W. 4. There is no other witness to say that therecovery was made at the instance of the accused from the house. The two seizure list witnesses have already been discussed above. The evidence of the I.O. further is to be probed in order to lend credence to his evidence regarding recovery. At paragraph 9 this witness said that the statement of the accused was taken after his arrest. He recorded his statement at the police station. He further stated at this paragraph that at paragraph 44 of the case diary it was not written that the accused voluntarily made his statement. From the aforesaid statements of P.W. 4, it becomes doubtful whether the accused, when he was arrested at his home, made any confessional statement there and pointed out any place to the police officer whether the alleged money was kept. In this connection, the production of the alleged seized articles also makes it further doubtful whether the alleged material Exhibit was the same which was allegedly recovered from the house of the accused or whether at all any money was recovered from his house - P.W. 4 produced the so- called recovered money in Court when he was recalled by the prosecution for further examination. In cross-examination by the accused he admitted that the aforesaid Ext. (Rs. 3800.00 ) was kept wrapped in a plain piece of paper and over the same P.S. Case Number and the Malkhana register number were written in his pen. The articles were kept in two pieces of paper and one contained red ink writing and the other blue ink writing. The red ink writing did not contain his signature. He further said that over, neither of the two pieces there was the seal of the police station. The articles were kept in two pieces of paper and one contained red ink writing and the other blue ink writing. The red ink writing did not contain his signature. He further said that over, neither of the two pieces there was the seal of the police station. The signature of the accused should also have been taken on the sealed bag and a copy of the seizure list also ought to have been given to the accused. None of these full proof procedures attaching to the seizure was followed in order to lend authenticity to the alleged seizure. The aforesaid admissions of P.W. 4 would clearly go to show that no proper procedure was followed while recovering the alleged money. The recovery should have been made in presence of two independent and respectable persons of the locality and, moreover, after seizure the money should have been kept in a sealed cover under the signature and seal of the raiding party and it should have been produced in Court under the sealed cover. The manner in which the concerned amount of money was brought to the Court and the manner in which it was kept would clearly reveal that no reliance can be placed in order to substantiate that of course, there was no any recovery from the house of the accused. The non-examination of the head of the raiding party also took away much of the authenticity of the alleged recovery from the house of the accused. 9. Now, even if it is assumed for a moment of course, there was any recovery of any money from the house of the accused, it is to be established that the recovered money was the same that was looted from the possession of the informant. In this connection, the evidence of the Manager of the Bank at Chapra who had handed over the money to the informant should have been adduced and the entry register should have been produced in Court in order to prove that particular numbers of currency note were made over to the informant and recovered money tallied in their numbers with the some of the currency notes made over to the informant. This was not done by the prosecution. So, on the record there was no sufficient, unimpeachable and reliable evidence to establish that from the house of the accused part of the looted money was recovered. This was not done by the prosecution. So, on the record there was no sufficient, unimpeachable and reliable evidence to establish that from the house of the accused part of the looted money was recovered. The accused was acquitted for the charge under Sec. 120(B) of the Indian Penal Code. Upon the aforesaid evidence on record it was also not established that the accused was, of course, found in possession of the looted money and that he was connected in any manner with the alleged occurrence of looting from the alleged place and alleged time. 10. In the result, I am of the opinion, that the order of conviction and sentence passed by the lower Court is not sustainable, there is no alternative but to acquit the accused. This appeal is, accordingly, allowed. The order of conviction and sentence passed by the lower Court is set aside. If the accused is in custody he shall immediately be released. If he is on bail, he shall be discharged from the liability of the bail bond.Appeal allowed.