M. NARAYANA REDDY, J. ( 1 ) THIS judgment, according to Law, based on the legal material placed, on Record, arises out of a Criminal Appeal filed by the sole appellant, against the sole respondent-State, under sub-section (2) of Section 374, Cr. P. C. 1973 questioning the, validity and legality of the adjudications made by, and set forth in para 2 infra. ( 2 ) JUDGMENT, dated 15-10-2001, of the court of the III Additional Sessions Judge, kurnool, made in Spl. S. C. No. 5/2000, of its file. ( 3 ) PERUSED the material papers of the record. ( 4 ) ARGUMENTS were heard of the learned counsel for the sole appellant and the learned addl. Public Prosecutor for the sole respondent-State. ( 5 ) AS disclosed by the impugned judgment of the Trial Court, and the Record, the said Crime No. 206/97, of the mahaboobnagar Rural Police Station was registered, in total, against five accused, described as A-l to A-5. but charge sheet was filed only against A-l, who only, was apprehended and figuring as the sole appellant herein. No charge-sheet was filed against A-2 to A-5, as they were absconding, by then. ( 6 ) HENCE, the Trial Court tried the said spl. S. C. No. 5/2000, only in respect of A-l (sole appellant herein) and adjudicated thereupon by the now impugned Judgment, set forth in para 2, supra. ( 7 ) THE sole appellant in this Criminal appeal corresponds to A-l in the said spl. S. C. No. 5/2000 of the file of the said trial Court. The sole respondent herein corresponds to the sole complainant therein, being the State, represented by the C. I. of police, Mahaboobnagar Rural Police Station. ( 8 ) THE parties are, here-in-after, referred to, with reference to their respective descriptions before the said Trial Court, in that Spl. S. C. No. 5/2000, of its file, unless, otherwise, so specified. ( 9 ) THE charge-sheet was filed before the committal Court, being, the Court of the special Judicial Magistrate of First Class, kurnool, in respect of Crime NO. 206/97, of the said Police Station, inter alia, alleging as under:- (A) A-l is a native of Ballari of the State of karnataka. (b) In the intervening night of 8/9-12/1997, around 1. ( 9 ) THE charge-sheet was filed before the committal Court, being, the Court of the special Judicial Magistrate of First Class, kurnool, in respect of Crime NO. 206/97, of the said Police Station, inter alia, alleging as under:- (A) A-l is a native of Ballari of the State of karnataka. (b) In the intervening night of 8/9-12/1997, around 1. 10 a. m. , while the de facto complainant, his wife, and their daughter, and his brother in-law (P. W. 2) were sleeping in their house in B. K. R. Colony, Seshadrinagar, mahaboobnagar, some unknown offenders broke open the doors, by using boulders, and gained entry into the house, and threatened them by showing knives, and forcibly took the keys of the almirah, and committed theft of one gold pustelatadu, four gold bangles, one pair of gold ear studs, one silver tumbler, watches and cash of Rs. 10,000. 00, all, valued, in total, at rs. 71,000/ -. Out of the total offenders, six of them entered into the house, and five to six persons were watching outside the house. (c) In the succeeding morning, P. W. 1 gave a police complaint, which was registered as the said Crime no. 206/97, under Section 395, IPC, against unknown offenders, and was investigated into. (d) In the process of the investigation there-into, the scene of offence was inspected and panchanama was prepared in the presence of mediators, and also, the statements of different witnesses were recorded. (e) In the further process of investigation there-into, on 25-11-1998, around 9. 40 a. m. , near Uday Talkies in madavaram, A-l was arrested, and, at his instance, the property was recovered. (f) Later, Identification Parade was held by the learned Magistrate, in respect of identification of A-l by the victims of the offence, etc. , and proceedings were prepared in respect thereof. (g) Because, the investigation revealed that A-l committed along with other absconding accused, the offence punishable under Section 395, IPC, charge-sheet is filed against A-l, accordingly, for his being punished by the Court, there-under. ( 10 ) THE said Committal Court, after registering the said charge-sheet as P. R. C. No. 6/2000, of its file, committed the case, etc. , whereby, it transformed into Spl. S. C. No. 5/2000, of the file of the said Trial Court. ( 11 ) BEFORE the said Trial Court, because,. ( 10 ) THE said Committal Court, after registering the said charge-sheet as P. R. C. No. 6/2000, of its file, committed the case, etc. , whereby, it transformed into Spl. S. C. No. 5/2000, of the file of the said Trial Court. ( 11 ) BEFORE the said Trial Court, because,. A-l pleaded not guilty of the sole offence and sole charge, both, punishable under section 395, IPC, the said Trial Court tried the said Spl. S. C. No. 5/2000, following the procedure prescribed for the trial of a Sessions case, asprescribed in Chapter XVIII, Cr. P. C, 1973, in the process whereof, it recorded the oral evidence of P. Ws. 1 to 12, and exhibited the documentary evidence, by way of exs. P-1 to P-10, and object evidence, by way of M. Os. 1 and 2, and, after due arguments there-into, considered the same, and, adjudicated thereupon, by its now impugned judgment, dated 15-10-2001, set forth in para 2, supra, as under- (I) Finding A-l, guilty of the sole offence and the sole charge framed against him, both, punishable under section 395, IPC; (II) Consequently, convicting A-l, in respect thereof, under sub-section (2) of Section 235, Cr. P. C. , 1973, and, hence, sentenced him under the said section 395, I. P. C. as under:- (a) to undergo Rigorous imprisonment for a period of five years; and (b) to pay a fine of Rs. 500. 00; and, in default of payment thereof, to undergo Simple Imprisonment for a period of two months. ( 12 ) AGGRIEVED thereby, and, questioning the, validity and legality, thereof, A-l filed the present Criminal Appeal, as set forth in paras 1 and 2, supra. ( 13 ) HENCE, the points for consideration and adjudication in this Criminal Appeal, will be, as under:- (1) Whether the impugned Judgment, set forth in para 2, as also, the conviction and sentences imposed thereby, and set forth in para 11 supra, are unsustainable, either at fact, or, at Law, and, hence, are liable to be set aside, in toto, or, modified, or, interfered with, in any manner? (2) To what reliefs? ( 14 ) BEFORE this Appellate Court, neither party sought to adduce additional, any oral, or, documentary, evidence. ( 15 ) ARGUMENTS were heard of the learned counsel for the sole appellant and the learned addl. (2) To what reliefs? ( 14 ) BEFORE this Appellate Court, neither party sought to adduce additional, any oral, or, documentary, evidence. ( 15 ) ARGUMENTS were heard of the learned counsel for the sole appellant and the learned addl. , Public Prosecutor for the sole respondent-State, as set forth in para 4 supra. ( 16 ) POINT No. 1: The brief, material, required, facts and circumstances of the case, are, all, set forth in the foregoing paragraphs. ( 17 ) EVEN according to the prosecution, the said offence, under Section 395, IPC, was committed by unknown offenders, who are strangers to the victims, being, P. Ws. 1 and 2, in the dead of the night, around 1. 10 a. m. , on 8/9-12-1997, in their house. It is the case of the prosecution, that, the doors of the house were broken, by using boulders, and, thereby, some of the culprits gained entry into the house, while some others were watching outside the house. ( 18 ) SO, therefore, it is for the prosecution, to prove, satisfactorily, the identity of A-l, as one of the culprits, in respect of the said offence. ( 19 ) THE prosecution sought to prove the same, by direct evidence of the alleged victims, as well as, by way of alleged recovery of the sole property, at the instance of A-l, in the presence of panch witnesses, and the alleged identification of A-l, before the judicial Magistrate of the first Class, at the identification Parade held by him. ( 20 ) NOW, it has to be examined as under, as to how far the prosecution substantiate the same, satisfactorily. ( 21 ) THE alleged offence occurred in the night of 8/9-12-1997. A-l is claimed to have been arrested by the Police on 25-11-1998. The intervening period is about one year, less, 13 days. The Identification Parade, covered by Ex. P-4, is claimed to have been held by P. W. 4, the Judicial Magistrate of first Class, in respect of A-l, on 3-7-1999. The intervening period between the date of offence and this Parade is about one year and six months. ( 22 ) P. W. 1 is the de facto complainant. P. W. 2 is the brother-in-law of P. W. 1. They tendered their evidence before the Trial Court on 10-8-2000. The intervening period between the date of offence and this Parade is about one year and six months. ( 22 ) P. W. 1 is the de facto complainant. P. W. 2 is the brother-in-law of P. W. 1. They tendered their evidence before the Trial Court on 10-8-2000. The intervening period between the date of offence on 8/9-12-1997 and the date of evidence on 10-8-2000, is about two years and eight months. ( 23 ) ADMITTEDLY, P. Ws. 1 and 2 have not furnished the descriptive particulars of A-l, to the Police, before such Parade. ( 24 ) P. WS. 1 and 2 denied the suggestion, that, A-l was shown to them before their identification. ( 25 ) IN respect of the arrest of A-l, and recovery of the stolen property, etc. , p. Ws. 12,11,10 and 7 were examined, and also Exs. P-9 and P-10, and M. Os. 1 and 2, were exhibited. ( 26 ) IT is the case of the prosecution, that, a-l was arrested by the then C. I. of Police (P. W. 12), along with some other Police persons, in the presence of one of the panch witnesses, who is a V. A. O. , examined as p. W. 10, and that, later, at the instance of a-l, M. 0. 1 (Gold Chain), and M. 0. 2 (silver glass), were recovered from a Gold Merchant, in the presence of two other panch witnesses, examined as P. Ws. 11 and 7. ( 27 ) THE alleged confession of A-l is exhibited as Ex. P-9 (admissible portion ). The recovery panchanama, in respect of the Gold merchant, is exhibited as Ex. P-8. ( 28 ) IF, really, both the panch witnesses, being P. Ws. 7,10 and 11, were present when a-l is alleged to have confessed his guilt and lead the Police party to the shop of the Gold merchant, leading to recovery of M. Os. 1 and 2, then, P. Ws. 7,10 and 11, will certainly, be able to identify A-l. However, all of them, even in their respective Chief-Examinations, categorically deposed, that, they cannot identify A-l. ( 29 ) EVEN otherwise, their evidences disclose, that, in total, on that day, the Police found eight persons running away, and that, on the spot itself, some property was seized. ( 30 ) THE evidence of P. Ws. ( 30 ) THE evidence of P. Ws. 7, 10 and 11, examined as panch witnesses, or, mediators, is thoroughly un-convincing, and of no practical, or, actual, use for the prosecution. ( 31 ) WHEN so, then, there remains, on record, the evidence of the only Police officer, being the said C. I. of Police, examined as P. W. 12 in respects thereof. In foregoing circumstances, the sole evidence of the Police officer, cannot, ipso facto, be safely accepted and acted upon, to record a finding of proof of confession and recovery of M. Os. 1 and 2 in respect of A-l, etc. ( 32 ) SO, therefore, the prosecution could not prove the guilt of A-l, by way of the alleged confession and guilt of A-l leading to the alleged recovery of the stolen property, etc. ( 33 ) THE identification of A-l, as one of the actual culprits at the time of the offence as sought to be proved by the said P. Ws. 1, 2 and 4, and the intervening periods is also not convicting and satisfactory, and, in any case, it is not at all safe, and, in any case, is not warranted by Law, to record a finding of guilt, ipso facto, or such basis and much less, convicting and sentencing A-l, ipso facto, only on such basis, in respect of the offence punishable under Section 395, I. P. C. ( 34 ) HENCE, the prosecution could not prove the guilt of A-l, of the alleged offence and charge, both, punishable under Section 395, i. P. C. , as also his identity beyond reasonable doubts. ( 35 ) HENCE, the impugned Judgment of the trial Court, and the conviction and sentences imposed thereby, are unsustainable at fact and Law, and hence, are liable to be set aside, in toto, as is being done, here under. ( 36 ) HENCE, the High Court doth hereby adjudicateuponthecriminalappeal,asunder:-I. Setting aside, in toto, the Judgment, dated 15-10-2001, of the Court of the iii Addl. Sessions Judge, Kurnool, made in Spl. S. C. No. 5/2000, and the conviction and sentences imposed thereby, upon A-l (sole appellant herein); iii. II. ( 36 ) HENCE, the High Court doth hereby adjudicateuponthecriminalappeal,asunder:-I. Setting aside, in toto, the Judgment, dated 15-10-2001, of the Court of the iii Addl. Sessions Judge, Kurnool, made in Spl. S. C. No. 5/2000, and the conviction and sentences imposed thereby, upon A-l (sole appellant herein); iii. II. Consequently, finding the sole appellant (A-l) not guilty of the alleged offence and also the sole charge framed against him, both, punishable under section 395, I. P. C. , and, hence, acquit him in respect thereof; and (a) Consequently, directing that, the sole appellant (A-l) be set at liberty, forthwith, in respect of the said Spl. S. C. No. 5/2000, pertaining to Crime No. 206/97, of the said Police Station mahaboobnagar Rural; and (b) Directing to refund the fine amount, if any, paid by the sole appellant.