JUDGMENT 1. - This is an appeal which seeks to quash and set aside the judgment of conviction and order of sentence dated 18.3.2004 passed by learned Addl. Sessions Judge (Fast Track No. 2), Banswara in Sessions Case No. 81/2003 - State v. Kanu Bhai & Ors. whereby the accused-appellants Kanu Bhai and Rama Bhai have been convicted and sentenced as under: Under Section 395 IPC Five years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo six months' simple imprisonment. Under Section 450 IPC Five years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo six months' simple imprisonment. The sentences were ordered to run concurrently. 2. Briefly stated, the prosecution case is that complainant PW-1 Subhash Chandra submitted a written report at Police Station, Anandpuri, inter alia, stating therein that he alongwith his family members resides in village Phalva and running a grocery shop there. On 29.6.2003, in the evening at 7.30 p.m., he along with his son was sitting at the shop and the other family members i.e. his wife and other children were inside the house. At that time, two young persons wearing pant shirts came to his shop and purchased some articles of daily use but on demand of price thereof they threatened him. Babulal, a priest in the temple, who was also sitting there for purchasing articles, when asked for payment, he was manhandled and given beatings. Five-six other persons standing outside the shop also entered the shop and demanded the key of safe and other goods. He was threatened to keep silence and all of them started scuffling with him. Some of them entered in his living room attached with the shop and threatening his wife forcibly snatched the gold chain of about two tolas worn by her. When he tried to resist, he was given beatings by iron rods, which caused injuries to his head, face, hands etc. On his making shouts, he was shown pistol and was forced to keep mum. His daughters Anita, Deepika and Puja were at home and on their crying, when villagers came, seeing them the scroundles fled way towards the Gujarat border. All the accused persons were young wearing pant, shirt and tee-shirt and were speaking Gujarati, Bagadi and local dialects. They took away Rs. His daughters Anita, Deepika and Puja were at home and on their crying, when villagers came, seeing them the scroundles fled way towards the Gujarat border. All the accused persons were young wearing pant, shirt and tee-shirt and were speaking Gujarati, Bagadi and local dialects. They took away Rs. 400-500/- from cash-box of his shop and Rs. 22,500/- from the almirah kept in the living room. 3. On the basis of above report, Case No. 147/2003 u/s. 395, 397 IPC was registered and investigation started. After completion of investigation, charge sheet against accused-appellants Ramabhai and Kanubhai for the offence u/s. 450, 395, 397 IPC was filed before the learned Judicial Magistrate (Jr.Div.), Bagidora. The case being exclusively triable by the Court of Sessions, was committed to the learned District & Sessions Judge, Banswara and from where it was transferred to the Court of he learned Addl. Sessions Judge (Fast Track No. 2), Banswara, who tried the accused-appellants for the offence u/s. 450, 395 and 397 of the IPC. 4. The prosecution examined in all 11 witnesses and tendered 20 documents in documentary evidence. In the statement recorded u/s. 313 Cr.P.C., accused denied the prosecution case and stated that they were falsely implicated. No evidence in defence was produced. 5. After hearing both sides, the learned Addl. Sessions Judge, vide judgment and order dated 18.3.2004 convicted and sentenced the accused-appellants as stated hereinabove. 6. Aggrieved by the aforesaid judgment of conviction and order of sentence, the present appeal has been filed. 7. Heard learned counsel for the appellant as well as the learned Public Prosecutor and carefully perused the material available on record. 8. It has been contended by learned counsel for appellant that no witness has identified the accused therefore conviction recorded by the trial Court deserves to be quashed and set aside. It has also been contended that the accused persons were shown to the witnesses prior to the identification parade and also before the evidence of the witnesses was recorded in the Court. It has been submitted that general currency note were recovered from the accused persons as such it cannot be said that it was the same currency which was looted. It has been submitted that general currency note were recovered from the accused persons as such it cannot be said that it was the same currency which was looted. It has also been submitted that one steel glass from each of the accused is alleged to have been recovered on the basis of disclosure statements made by them but the witness of recovery has turned hostile and the recovery is also doubtful. Learned counsel submits that the learned trial Court has not appreciated the evidence properly. 9. On the other hand, the learned Public Prosecutor has submitted that the accused have committed dacoity and they also gave beatings to the family members of the complainant. It has also been submitted that a sum of Rs. 240/- and a steel glass has been recovered on the basis of disclosure statement of accused Kanu and accused Rama also made disclosure statement and got recovered Rs. 800/- and a steel glass from his house, therefore, the prosecution has established the case against the accused appellants and the trial Court has rightly convicted and sentenced the appellant. 10. I have considered the submissions made before me. 11. In the instant case, PW-1 has lodged the complaint. He has narrated about the incident in detail. In the cross examination, he has stated that accused were brought at his house and he saw them so he could identify them in the Court. He has also stated in the cross examination that police persons told him that they had brought the thieves who committed theft at their house. He has also stated that no article was shown to him which was taken by the accused persons after the theft. PW-2 is the wife of PW-1 and she has not stated that the accused were the same persons who committed theft at her house. She has narrated about the incident which took place on 29.6.2003 in the evening at about 7.30 p.m. She has stated that 10 persons entered in her house , one of them snatched gold chain from her neck and they looted gold ornaments and the money kept in the house. PW-3 Shantilal is the witness of recovery. He has stated that the police from site recovered one empty carton of batteries in his presence and prepared a memo. He has also stated that Kanu Bhai got recovered two currency notes of Rs. PW-3 Shantilal is the witness of recovery. He has stated that the police from site recovered one empty carton of batteries in his presence and prepared a memo. He has also stated that Kanu Bhai got recovered two currency notes of Rs. 100/- each and a glass from his house. In the cross examination, he has stated that at the time of recovery he was in the jeep, therefore, he does not know as to whether the house was open or close. He has further stated that he did not go to the house. He has also stated that another witness Poonamchand also not went to the house of the accused as he was also in the jeep. He has stated that the memos were drawn in some other shop. He in the last of his cross examination has stated that the police told him that the glasses and goods of daily use were recovered from the house of the accused persons. In last, it has been stated that the recovered articles were not recovered at the instance of accused in their presence. PW-4 Kumari Anita has stated that accused had torch in their hands and they were using it at that time. She has also stated that the person who snatched the chain was not amongst the accused persons. She has also stated that accused were having torch and were using but the same was not stated by her to the police. She has also stated in her statement that she had not stated that the person who snatched the chain was tall person. She has admitted the suggestion that the police brought the accused persons to her house and told her that the accused were the persons who were responsible for the theft in their house and she was required to identify the accused persons in the Court. 12. PW-5 is Govind. He is a child witness of 13 years. He has also narrated the incident and has stated that accused many in number came to their house and committed dacoity. In the cross examination, he has stated that before the Magistrate he did not identify the accused persons. 12. PW-5 is Govind. He is a child witness of 13 years. He has also narrated the incident and has stated that accused many in number came to their house and committed dacoity. In the cross examination, he has stated that before the Magistrate he did not identify the accused persons. He has admitted the fact that police persons with accused came to their house and told that the accused persons were responsible for the dacoity in their house and also told that his evidence was required to identify the accused persons in the Court. 13. PW-6 Deepika in the cross examination has stated that police persons came to her house with accused and told her that she would be required to identify the accused persons in the Court. 14. PW-7 is the witness of recovery. He has not supported the prosecution case and has been declared hostile. 15. PW-8 is Dr. Charan Singh. He has medically examined Ram Prasad and has proved Ex.P/3 the Injury Report in relation to Ram Prasad. He has also examined Bapulal and.Hakru proved Injury Reports Ex.P/9 and P/10. Both of them have sustained one injury simple in nature. PW-9 Bapulal states about the incident but he has not identified the accused persons. PW-10 is Dr. C.B. Charel. He has examined the complainant PW-1 Subhash medically and prepared report. PW-11 J. Meena is the person who has investigated the matter. He has stated that disclosure statements were given by the two accused persons Ex.P/16 and P/17 and on the basis of disclosure statements, accused Kanu got recovered Rs. 240/- and steel glass and accused Rama Bhai got recovered Rs. 800/- and a steel glass from his house. He has also stated that after part of the investigation he was transferred. PW-12 is Shyamlal ASI. He has also conducted investigation and prepared some memos. 16. A perusal of entire evidence nowhere discloses the fact that accused persons were identified correctly because they have stated that the accused persons were shown to them. There is no identification of the articles, particularly the general currency notes in the denomination of Rs. PW-12 is Shyamlal ASI. He has also conducted investigation and prepared some memos. 16. A perusal of entire evidence nowhere discloses the fact that accused persons were identified correctly because they have stated that the accused persons were shown to them. There is no identification of the articles, particularly the general currency notes in the denomination of Rs. 100/- and 10 alleged to have been recovered at the instance of accused persons on the basis of disclosure statement and in absence of reliable evidence, it cannot be said that on the basis of recovery of such articles like glass the verdict of the guilt can be recorded against the accused-appellants. I find weight in the submission of the learned counsel that in the present case when the accused were not known prior to incident and they were more than 10 in number and some of them entered in the house and some were outside the shop and the accused-appellants were shown to the witnesses earlier and before their statements in the Court, then or. such testimony conviction recorded by the learned trial Court cannot be sustained. The trial Court has failed to correctly appreciate the evidence brought on record. It is a case where no evidence is available regarding identification as well as recovery and in such circumstances, I find that the conviction and sentence recorded by the trial Court against accused persons is not legally sustainable and the same deserves to be set aside. 17. In the result, the appeal is allowed, the impugned judgment of conviction and order of sentence dated dated 18.3.2004 passed by learned Addl. Sessions Judge (Fast Track No. 2), Banswara in Sessions Case No. 81/2003 - State v. Kanu Bhai & Ors. is set aside and the accused-appellants are acquitted of the charges levelled against them. They be released forthwith, if not required for any other investigation, proceeding or trial.Appeal allowed. *******