JUDGMENT 1. - Since both the appeals arise out of the judgment dated 27.7.2001 in sessions case No. 30/99, they are being decided by a common judgment. 2. Vide judgment under challenge, the learned trial court has convicted all the five accused appellants for offence under Sections 395 and 397 IPC and sentenced each of them to undergo rigorous imprisonment for 7 years with a fine of Rs. 10000/- each, in default of payment of fine, each of the accused was to further undergo rigorous imprisonment for 18 months each separately for both the offences. Appellant Goriya has further been convicted under Section 4/27 IPC and sentenced to undergo rigorous imprisonment for 3 years with a fine of Rs. 500/- each, in default thereof, he was to further undergo simple imprisonment for six months. 3. On 14.3.1999, PW 2 Amra alongwith PW4 Kalu, PW9 Nanda, PW6 Bhooli Bai and Chowkidar PW15 Kishan Lal came to Police Station Dug (Jhalawar) in a Tractor Trolly and he submitted an oral report to the effect that in the night at about 11-12 while he was sleeping in his house, light flashed at the door of his house and as a result thereof, he awaked. He saw 8-10 persons standing there. All were wearing Dhotis and Kurtas. Out of them, one accused struck 2-3 lathi blows on him, as a result of which he fell down. The accused after cutting the door with the help of an axe, entered in his house. They belaboured his wife Sita Bai and took away with them a pot (Bhandi) containing opium weighing 8 Kgs. Thereafter they entered the house of Kalu and after beating Kalu and his wife looted opium weighing 10 kgs from his house. When Kishan Lal Chowkidar came running, the accused opened fire at him. 4. On the basis of above report, police registered a case for offence under Sections 395 and 397 IPC vide FIR, Ext. P2 and proceeded with the investigation. In the course of investigation, the police inspected the site, prepared site plan, recovered the pallets of gun, seized blood stained shirt of Kalu and recorded the statements of witnesses. The police arrested accused Badri Singh, Umrao Singh, Tufan Singh and Hariya. On the information of accused Badri Singh, police recovered Rs. 4500/- lying in a brief-case. In the course of investigation, the police inspected the site, prepared site plan, recovered the pallets of gun, seized blood stained shirt of Kalu and recorded the statements of witnesses. The police arrested accused Badri Singh, Umrao Singh, Tufan Singh and Hariya. On the information of accused Badri Singh, police recovered Rs. 4500/- lying in a brief-case. On the information of accused Umrao Singh, a kettle (Dekchi) was recovered from the bushes near the well of accused Toofan Singh. Another Dekchi containing 3.900 kgs opium was also recovered on his information. A Kulhari was recovered on the information and at the instance of accused Hariya, while a Farsa was recovered on the information and at the instance of accused Goriya. On the information of appellant Haria, a Tiffin with Rs. 3000/- was recovered. On the information of Toofan Singh 4 Kgs opium was recovered. 5. Having, completed investigation, the police submitted a charge sheet against the appellants. The learned trial Court, on the facts of evidence and material collected during investigation and placed before it framed charges against the appellants for offences under Section 8/18 of the NDPS Act and Sections 395 and 397 IPC. The appellants denied the charges and claimed trial. 6. In the course of trial, the prosecution in support of its case examined as many as 25 witnesses and got exhibited some documents. After the prosecution evidence was completed, the accused were examined under Section 313 Cr.RC. In defence, the accused did not examine any witness. 7. At the conclusion of trial, the learned trial Judge acquitted the appellants of the offence under the NDPS Act. However, the Trial Judge convicted and sentenced the appellants in the manner stated herein above. Hence the present appeals against conviction. 8. I have heard learned counsel for the parties and have gone through the impugned judgment, the evidence and material on record. 9. There are two sets of evidence and the learned trial Judge having found the evidence of recovery as being reliable and worthy of credence has based conviction of the appellants. The first set of evidence is the identification of the appellants at the time of occurrence and in the course of test identification parade. The second set of evidence is the recovery of opium, utencils, currency notes and weapons allegedly used in the commission of crime. 10. The first set of evidence is the identification of the appellants at the time of occurrence and in the course of test identification parade. The second set of evidence is the recovery of opium, utencils, currency notes and weapons allegedly used in the commission of crime. 10. The first set of evidence viz., the identification of appellants consists of the statements of PW 1 Shambhu, PW2 Amara, PW3 Mst. Sita Bai, PW4 Kalu Lal, PW5 Anokhi Bai, PW 6 Bhooli Bai, PW 9 Nanda and PW 15 Kishan Lai, Chowkidar. Out of these 8 witnesses of identification, PW 5 Anokhi Bai, PW 6 Bhooli Bai and PW 9 Nanda could not identify the appellant at the time of incident. In the test identification parade conducted by PW 19 Om Prakash, Additional Chief Judicial Magistrate complainant Amara identified four appellants namely, Toofan Singh, Hariya, Badri and Umrao Singh. PW4 Kalu identified appellant Toofan Singh and Umrao Singh, whereas PW 1 Shambhu identified Toofan Singh and Hariya. In the test identification parade conducted by PW22 Iddudeenn, Chief Judicial Magistrate, Jahalawar PW15 Kishan Lal identified appellant Goriya. However, on scrutiny of evidence, it appears that PW 2 Amra has admitted that he alongwith his son Shambhu and neighbour Kalu had seen the appellants at the Police Station and thereafter they identified the accused in jail. In the light of this admission, no evidentiary value can be attached to the identification done by witnesses Amra, Kalu and Shambhu. Kalu in his cross examination has categorically admitted that he could not see the miscreants who committed the offence. No question about the identification (Ex.P 1) made by him was put to this witness. PW 15 Kishan Lal though identified Goriya in the test identification parade, yet he specifically stated in his statement that he could not see the miscrients and appellant Gauriya was not with them at the time of incident. The witness further clarified that previously Gauriya was watchman in the village and that being the reason he identified him in jail. Strangely enough, Toofan Singh appellant is also a resident of same village and was very well known to PW2 Amara and PW3 Mst. The witness further clarified that previously Gauriya was watchman in the village and that being the reason he identified him in jail. Strangely enough, Toofan Singh appellant is also a resident of same village and was very well known to PW2 Amara and PW3 Mst. Sita Bai, but Amara has not named Toofan Singh as one of the members of dacoity either in the report, Ex.P2 or in his statement (Ex.Dl) under Section 161 Cr.P.C. Thus, having scanned the evidence, I am of the considered view that the evidence as regards identification of appellants at the time of incident and in the test identification parade does not inspire confidence and is of no value. The trial court has committed no error in disbelieving this first set of evidence. 11. The second category of evidence which weighed with the trial court in arriving at a conclusion of guilt is the recovery of opium, utensils, currency notes and weapons alleged to be used in the commission of offence. 12. Appellant Toofan Singh was arrested vide memo Ex.P47. After arrest, he furnished information, Ex.R 51 as regards recovery of opium and pursuant to his information, opium weighing 4 Kgs was recovered vide memo Ex.P 13. There is no evidence to the effect that recovered opium is the same which belonged to PW2 Amara or PW4 Kalu and was looted from their house. Further, PW 2 Amara and PW 3 Sita Bai have categorically deposed that Toofan Singh is a resident of their village and was known to them prior to the present incident. But surprisingly enough, the name of Toofan Singh does not find place in the first information report lodged by none other than Amara himself. Even the name of appellant Toofan Singh does not find mention in the police statements Exts. D1 and D2 of Amara and Sita Bai, respectively. 13. Appellant Badri Singh was arrested vide arrest memo, Ex.P45. He furnished information Ex.P54 and pursuant to his information currency notes worth Rs. 4500/- were recovered vide memo Ex.R15. However, there is no iota of evidence to connect Rs. 4500/- recovered from Badri Singh with the alleged crime. The prosecution has not been able to provide that appellant sold the opium alleged to be looted property and the amount so recovered was the sale price of the sold opium. Therefore, the recovery of currency notes is also of no consequence. 14. 4500/- recovered from Badri Singh with the alleged crime. The prosecution has not been able to provide that appellant sold the opium alleged to be looted property and the amount so recovered was the sale price of the sold opium. Therefore, the recovery of currency notes is also of no consequence. 14. Appellant Hariya was arrested vide memo Ex.P48. He also furnished information Ex.P52 and in pursuance of his information one axe was recovered vide Ex.P5. Likewise, appellant Gauriya was arrested vide memo Ex.P60 and he furnished information Ex.P.61. Pursuant to his information, one Farsha was recovered. Undoubtedly, the recoveries of weapon of offence have been made but mere recovery of weapons is not sufficient unless the prosecution is able to link the said recovery with the offence at hand by cogent and reliable evidence. In the instant case I do not see any evidence so as to connect the axe and Farsa with the case at hand, 15. Appellant Hariya also furnished information Ex.P53 as regards recovery of a Tiffin and currency notes and on his information, a tiffin with Rs. 3000 were recovered vide memo Ex.PlO. A perusal of memo Ex.P10 indicates that name of Kalu is engraved on the recovered tiffin. The fact that name of Kalu was engraved on the tiffin prevailed with trial" court in coming to a conclusion that the said tiffin belonged to Kalu, which contained opium. It appears to me that the trial court has not considered the important fact that witness Kalu in his police statement, Ex.D4 has not stated a single word that his name was engraved on the tiffin. Even in his court statement, the witness has not stated about the above fact. Therefore, it cannot conclusively be said that the recovered tiffin belonged to Kalu and name of Kalu was engraved on the tiffin prior to the incident. 16. Now remains Umrao Singh who was arrested vide memo Ex.R46. He furnished information Ex.R49 and in pursuance of the information a kettle (Degchi), a small cooking pot was recovered vide EX.R 14, which had smell and remnant of opium. In the FIR, Ex.R2, complainant Amara has mentioned that dacoits took away 8 Kgs. Opium lying in 'Bhondi' (made of chaddar), while in his court statement, the complainant has not stated a word that he had kept the opium in Degchi. In the FIR, Ex.R2, complainant Amara has mentioned that dacoits took away 8 Kgs. Opium lying in 'Bhondi' (made of chaddar), while in his court statement, the complainant has not stated a word that he had kept the opium in Degchi. That apart, the said Degchi was not produced in court at the time of recording the statement of complainant in order to identify the same. However, his son Shambhu, PW 1 has categorically stated that opinion was kept in a Bhandi made of brass. In these circumstances the 'Degchi' recovered pursuant to the information of appellant Umrao Singh cannot conclusively be said to be belonging to Amara. 17. It has also come on record that 3.900 Kgs. Opium was also recovered from the possession of appellant Umrao Singh vide recovery memo Ex.P8, pursuant to his information, Ex.P50. There is no evidence whatsoever to prove that the recovered opium belonged to complainant Amara. 18. Judged thus, it must be held that prosecution has not been able to prove its case beyond doubt even on the basis of recovery alleged looted property and the weapons. The learned trial Judge has failed to correctly evaluate the evidence concerning recovery and thus has committed serious error in basing conviction, relying upon the second set of evidence. For the reasons, therefore, the conviction of the appellants cannot be sustained and is liable to be set aside. 19. In the result, both the appeals are allowed. The conviction of the appellants as recorded by the trial court is set aside and they are acquitted of the charges. The appellants are in jail and they be set at liberty, if not required in any other case.Appeals allowed. *******