JUDGMENT Mr. L.N. Mittal, J. (Oral) - Convicts Mumtaj, Anis, Irshad and Aslam have filed the instant criminal appeal to assail their conviction and sentence vide judgment dated 01.07.2003 and order dated 11.07.2003 passed by learned Additional Sessions Judge (Ad hoc), Hissar, thereby convicting the accused-appellants under Section 459 IPC and Section 392 read with Section 397 IPC and sentencing each of the convicts to undergo rigorous imprisonment for ten years and to pay fine of Rs.500/- and in default thereof, to undergo further rigorous imprisonment for one year under Section 459 IPC and to undergo rigorous imprisonment for 7 years under Section 392 read with Section 397 IPC, but both the substantive sentences have been ordered to run concurrently. 2. Prosecution case is that complainant Jagdish along with his wife and children was sleeping outside his house in agricultural land (dhani) on the night between 8/9-05-1999. At about 1.00 am, a person inflicted lathi blow on the neck of the complainant. He woke up and found that 4-5 persons had surrounded their cots. Those assailants were armed with lathis, jailis and gandasi. They snatched gold and silver ornaments from complainant’s wife. They also caused injuries to her. The complainant and his family members were forcibly taken inside the room and were bolted there from outside. Complainant’s son aged six years was sent out of the room by making opening in the wall by removing bricks and he unbolted the door. The assailants also took away cash amount of Rs.2,900/- from the complainant’s house. Similar occurrence also took place in the dhani of Ram Dass where Ram Dass and his family members were also injured and robbed. The injured persons were got medico-legally examined. Accused Mumtaj was interrogated on 22.11.2000 consequent on his arrest in the instant case. He made disclosure statement. Pursuant thereto, accused Mumtaj pointed out the place of occurrence of this case on 24.11.2000. The remaining three accused were interrogated on 13.06.2001. They also made disclosure statements and pointed out the places of occurrence pursuant thereto. In fact accused Aslam had disclosed in CIA Staff, Bahadurgarh about having committed occurrence of instant case along with remaining three accused and three more persons. No recovery of stolen property was effected from the accused pursuant to their disclosure statements. 3. They also made disclosure statements and pointed out the places of occurrence pursuant thereto. In fact accused Aslam had disclosed in CIA Staff, Bahadurgarh about having committed occurrence of instant case along with remaining three accused and three more persons. No recovery of stolen property was effected from the accused pursuant to their disclosure statements. 3. On completion of investigation, report under Section 173 of the Code of Criminal Procedure (in short, ‘Cr.P.C.’) was presented for prosecution of all the four accused for offences under Sections 458 and 459 IPC. 4. Charge under Section 459 IPC and Section 392/397 IPC was framed against the accused. They pleaded not guilty and claimed trial. 5. The prosecution has examined 11 witnesses in support of its case. 6. Head Constable Ram Niwas PW-1 stated that accused Irshad, Anis and Aslam had separately made disclosure statements and pursuant thereto pointed out the places of occurrence. 7. Constable Satyawan PW-2 stated that accused Mumtaj had pointed out the place of occurrence. 8. Dr. S. K. Gupta PW-3 stated about medico-legal examination of all the injured persons i.e. Ram Dass, Lalli, Shanno Bai, Phoolwati and Jagdish. He also stated that one injury of Lalli was grievous being fracture of nasal bone. 9. Rishpal, Patwari, PW-4 stated that he prepared scaled site plan of the place of occurrence. 10. Jagdish PW-5, his wife Phoolwati PW-6, Ram Dass PW-7 and his wife Sona Devi PW-8 stated that some persons had caused them injuries and robbed them of ornaments and cash amount but they could not identify the assailants. 11. Jagdish and Phoolwati were declared hostile and were crossexamined by Public Prosecutor, but they did not identify that the accused persons present in the court were the assailants. 12. Head Constable Bhika Ram PW-9 stated about interrogation of Mumtaj on 22.11.2000 and the disclosure statement made by him. 13. SI Jagdish Chander PW-10 stated that he recorded formal FIR in this case. 14. Inspector Chandgi Ram PW-11 stated about part investigation of the case. He stated that Mumtaj accused made disclosure statement and pursuant thereto, pointed out the places of occurrence. 15. The accused in their examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. 16. 14. Inspector Chandgi Ram PW-11 stated about part investigation of the case. He stated that Mumtaj accused made disclosure statement and pursuant thereto, pointed out the places of occurrence. 15. The accused in their examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. 16. Learned Additional Sessions Judge (Ad hoc), Hissar vide impugned judgment dated 01.07.2003 convicted all the four accused under Section 459 IPC and Section 392 read with Section 397 IPC and vide order dated 11.07.2003, sentenced all the convicts as already noticed hereinbefore. Feeling aggrieved, the convicts have filed the instant criminal appeal assailing their conviction and sentence. 17. I have heard learned counsel for the parties and perused the case file with their assistance. 18. Learned counsel for the appellants contended that there is no evidence to link the accused-appellants with the occurrence in question. It was submitted that no test identification parade was held nor the appellants were identified by the concerned witnesses in the Court during trial being the assailants who committed the occurrence. No recovery of stolen property was either effected from the accused or at their instance. 19. On the other hand, learned State counsel contended that all the four accused after making disclosure statements separately, pointed out the places of occurrence and therefore, it is proved that the occurrence was committed by the present accused. It was also pointed out that since the accused were arrested in this case long after the occurrence i.e. Mumtaj after one and half years of the occurrence and the remaining three accused more than two years after the occurrence, no recovery of stolen property could possibly be effected from the accused. 20. I have carefully considered the rival contentions. All the four material witnesses (victims of the occurrence) i.e. Jagdish-complainant, PW-5 his wife Phoolwati PW-6, Ram Dass PW-7 and his wife Sona Devi PW-8 have categorically stated that they could not identify the assailants who had committed the occurrence in question. They have not stated that the present accused had committed the occurrence. Consequently it cannot be said that the present accused-appellants were the assailants/robbers who committed the occurrence in question. They have not stated that the present accused had committed the occurrence. Consequently it cannot be said that the present accused-appellants were the assailants/robbers who committed the occurrence in question. In fact, the aforesaid four witnesses have correctly stated that they could not identify the assailants because the occurrence took place at dead hour of the night while the witnesses were asleep. They woke up on being hit by the assailants but obviously the assailants must have taken precaution to hide their identity. The victims having suddenly woken up from sleep at dead hour of the night could not have possibly identified the assailants being strangers. There is also no other evidence to link the accused with the occurrence. No test identification parade was also held during investigation nor the accused were identified to be the assailants by the victims in the Court during trial. 21. Merely because the accused allegedly pointed out the places of occurrence after making disclosure statements, it cannot be said that the accused were involved in the occurrence. This evidence itself would not be sufficient to convict the accused. In this context, it would also be significant to notice that ASI Rajpal who had interrogated accused Aslam, Anis and Irshad and recorded their disclosure statements as well as memos of pointing out of places of occurrence by these three accused, has not been examined as witness. He was material witness against these three accused. His nonexamination gives raise to adverse presumption against the prosecution. 22. It is also significant to notice that no recovery of any stolen property was effected from any of the accused. It is correct as submitted by State counsel, that recovery could not be effected because accused Mumtaj was arrested in this case one and half years after the occurrence and the remaining three accused were arrested more than two years after the occurrence. However, when no recovery of stolen property was effected from the accused, benefit thereof would go to them because in the absence of recovery of the stolen property, they could not be linked with the occurrence in question particularly when there is also no other evidence to link them with the occurrence except that they had allegedly pointed out the places of occurrence by making disclosure statements. 23. 23. For the reasons recorded hereinbefore I have no hesitation in concluding that the prosecution has not been successful in proving the guilt of the accused beyond reasonable doubt. On the other hand, the prosecution case is doubtful and therefore, the accused deserve benefit of doubt. 24. As a necessary corollary of the discussion aforesaid, the instant criminal appeal is allowed and impugned judgment of conviction and order of sentence passed by the trial Judge are set aside and all the four accused are acquitted of the charge against them given them benefit of doubt. All the four accused appellants be released forthwith, if not required in any other case. ------------