Judgment This is appeal is directed against the judgment and order of conviction dated 14.07.2009 passed by Additional Sessions Judge, Darwha in Sessions Trial No.11/2008 whereby the accused -the appellant herein was convicted for an offence punishable under Section 395 of the Indian Penal Code and was sentenced to suffer Rigorous Imprisonment for five years and to pay a fine of Rs.1,000/-in default to suffer Simple Imprisonment for three months. 2. The facts unfolded in the First Information Report are thus: On 26.06.2007 one Shaikh Farook r/o village Akkalguda near Adilabad, Andhra Pradesh was proceeding with his family in Tata Indica car to Digras. On the road in between Arni and Digras his vehicle was intercepted by the other vehicle-Tavera. This happened at about 2.00 a.m. Four persons got down from the vehicle and posed themselves as officials of the B.S.F. There were two more persons in the vehicle. They boarded the vehicle of PW4-Sk. Farook. They were alleging that Sk. Farook was carrying Gold and, therefore, he would be taken to the Police Station. Both the vehicles proceeded ahead by road, which is called as Bhandari road. At some distance, both vehicles were stopped. At the point of knife and pistol, PW4 Sk. Farook was relieved of cash amount of Rs.17,000/-, gold ornaments, two cellphones, keys of the vehicle. While leaving, they flattened tyres of vehicle of PW4 Sk. Farook by firing bullets. Sk. Farook informed the same to Police Station, Arni. PW5-Mohd. Aslam, P.S.I. visited the spot. Then he sent PW4-Sk. Farook for lodging report to the police Station. There the report was lodged and on that basis offence was registered. 3. It is the prosecution case that during checking of the vehicles (Nakabandi) in Deoli, Dist. Wardha, the vehicle-Tavera involved in the dacoity was intercepted. The articles looted were recovered and four persons were arrested. However, at the time of trial, only two accused were available i.e. Nagnath Chitmogre and Shankar Rapandwar (present appellant). The prosecution examined five witnesses. 4. After considering the evidence, the learned Addl. Sessions Judge held that the offence with which the accused persons have been charged has been proved. He, therefore, convicted and sentenced him as mentioned herein before. 5. Mr. Umale, learned counsel for the appellant-accused contended that the evidence brought on record is absolutely insufficient to bring home the guilt of the accused. After considering the evidence, the learned Addl. Sessions Judge held that the offence with which the accused persons have been charged has been proved. He, therefore, convicted and sentenced him as mentioned herein before. 5. Mr. Umale, learned counsel for the appellant-accused contended that the evidence brought on record is absolutely insufficient to bring home the guilt of the accused. By no stretch of imagination it could have been concluded that the offence under Section 395 of the Indian Penal Code has been proved against the accused. The learned counsel took me through the evidence of all the five witnesses and documentary evidence relied upon by the prosecution. He, therefore, prayed for acquittal of the accused-appellant. 6. At the outset, I am constrained to observe that the conviction of the accused is based upon 'no evidence'. Even if, the testimony of the witnesses is accepted as it is, it would not prove any of the ingredients of Section 395 of the IPC except the fact that on 26.06.2007, there was dacoity and in that at the point of knife and pistol, PW4 Sk. Farook was relieved of cash, gold ornaments, cellphones and keys of the car. 7. PW4 Sk. Farook repeated the same story which has been narrated in the FIR. According to him, on 26.06.2007, while he was proceeding in his Indica car accompanied by his wife and driver, a vehicle-Tavera intercepted his vehicle. Four persons dressed in Khaki and posing themselves as officials of the B.S.F. approached them and informed them that he was smuggling gold. Two more persons were also in the said car. Those four persons boarded his car and after taking car to some distance, at the point of knife and firearms, looted them. He was relieved of cash Rs.17,000/-, gold ornaments, two cellphones and also keys of his Indica car. While fleeing away in their vehicle-Tavera, they fired at the tyres of the Indica car. Thereafter, they walked to the village called as Bhandari and from there they contacted the police. Police came to their rescue. Then he went to Police Station, Arni and lodged report (Exh.-57). During the course of investigation, he was called in the Office of Superintendent of Police, Yavatmal and there he had been shown two persons to whom he identified as the same who had committed dacoity. Police came to their rescue. Then he went to Police Station, Arni and lodged report (Exh.-57). During the course of investigation, he was called in the Office of Superintendent of Police, Yavatmal and there he had been shown two persons to whom he identified as the same who had committed dacoity. After 8-10 days, he was again called in the office of Superintendent of Police, Yavatmal and was shown the articles, which he had lost in the incident. He identified these articles. It is most surprising that when in the Court he was shown the accused Nagnath and Shankar (appellant), he refused to identify them. His version is that, "I now say that accused person present before court were not present amongst those persons who had snatched cash and ornaments from us." In cross-examination, he again clarified the same by saying that, "Both accused persons present before the court have no concern with that incident. They were not present at the time of incident." Admittedly, all the accused being strangers, no names were mentioned in the FIR. It is pertinent to note that there is no evidence on record to show that any identification parade of the accused was held. 8. The findings of the learned Addl. Sessions Judge that some properties were recovered from the possession of accused-Shankar is, in fact, based on no evidence. Perhaps, the learned Addl. Sessions Judge relied on the evidence of PW1-Yunus Khan, who stated that, "On 28/6/2007, Local Crime Branch, Yavatmal had called me in L.C.B. Office Yavatmal. Md. Javed another panch with me. In my presence police has arrested Shankar Rapenwar, Bablu Gaikwad & Maroti Gaikwad. Arrest panchanama of all these accused persons, bears my signature. They are at Exh.21, 22 & 23. Out of them clothe of one accused were stained with blood. Police had seized their clothes in my presence. Seizure memo of clothes of all 3 accused persons bears my signature. They are at Exh.24, 25 & 26." 9. Thus, it is obvious that he did not speak a word that any article was seized from the accused much less which article/articles and from whom. In next part of his testimony, he stated that 15 articles were shown to the complainant and police had seized all those articles in his presence. Again, he did not speak a word as to from whom these articles were seized. In next part of his testimony, he stated that 15 articles were shown to the complainant and police had seized all those articles in his presence. Again, he did not speak a word as to from whom these articles were seized. In cross-examination he stated that he is prosecuted by police in 5-6 motor vehicle cases. Then he made a vague statement that all those articles were seized from the accused persons, who were arrested in his presence. Then he gave admission that the accused persons, who were arrested were not present in the Court. In fact, what was expected of the prosecution was to get the accused identified by this witness and, thereafter, he should have been asked in sequence as to what had transpired in his presence like from whom what article was seized and under what panchanama and whether the article shown to him is the same. Therefore, the evidence of PW1 Yusuf Khan is absolutely of no use to the prosecution. 10. PW2 Mohd. Irfan deposed something contrary to the prosecution case. According to him, on 26.06.2006, he was called in the Local Crime Branch Office and in his presence 14 articles were seized from the possession of one Police Officer. However, he did not speak a word that anything was seized from the accused-Shankar. What is surprising is that the learned A.P.P. who conducted the examination-in-chief seems to be ignorant of the importance of asking in detail about the identify of the accused, seizure of articles and panchanama etc. A very vague evidence is allowed to go on record i.e. seizure of 14 articles from one Police Officer. This, in fact, negates the prosecution case that stolen articles were seized from the accused. Moreover, this witness did not whisper a word about the accused-Shankar. 11. PW3-Shabbir Haji Wajir, a witness who had gone to the spot where the incident occurred. Therefore, there is no need to discuss his evidence at all. 12. The last witness is PW5 Mohd. Aslam, Police Inspector, who was attached to Police Station, Arni at the relevant time. His evidence is on the point of receiving information and his visiting the spot. He deposed that in Nakabandi, accused were arrested. That means, they were not arrested by him but by different Police. 12. The last witness is PW5 Mohd. Aslam, Police Inspector, who was attached to Police Station, Arni at the relevant time. His evidence is on the point of receiving information and his visiting the spot. He deposed that in Nakabandi, accused were arrested. That means, they were not arrested by him but by different Police. On the point of recovery of articles, details of arrest like, who was arrested and at what time, identity of the property etc. his evidence is totally silent, presumably, for the reason that he had not carried out that part of investigation. 13. On the record, there is Discovery Memorandums dated 30.06.2007. These are relating to the discovery of some articles at the instance of accused-Shankar. Surprisingly, these memorandums have not been proved. It is strange to observe that why the witnesses to this memorandums have been given up. In the statement recorded under section 313 of the Code of Criminal Procedure the circumstance of seizure of incriminating articles from the accused-Shankar allegedly stolen was not at all put to him. What was put to him is that 14 articles were seized from one Police Officer. It was expected of the learned trial Judge to put to the accused that such and such articles, referring to the Muddemal numbers, were seized from him and in turn they were identified by the complainant. Such minimum exercise is must to prove the possession of stolen articles and their link with actual incident of dacoity. 14. This follows that the evidence is totally lacking to show that the accused Shankar-appellant was either found in possession of any of the articles or was involved in actual commission of dacoity. Most important is the admission given by PW4-Sk. Farook to the effect that the accused-Shankar and accused-Nagnath, who were present before the Court were not at all amongst those, who had committed dacoity. In unambiguous words, he explained that they were not at all present at the time of incident and had no concern with the incident. With such an evidence on record, it is strange to observe that the learned Addl. Sessions Judge proceeded to convict the accused. 15. In that light of the matter, the appeal is allowed. In unambiguous words, he explained that they were not at all present at the time of incident and had no concern with the incident. With such an evidence on record, it is strange to observe that the learned Addl. Sessions Judge proceeded to convict the accused. 15. In that light of the matter, the appeal is allowed. Judgment and order of conviction and sentence dated 14.07.2009 passed by Additional Sessions Judge, Darwha convicting the accused-Shankar Narsinga Rapandwar (Original accused no.3) for an offence punishable under Section 395 of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for five years and to pay a fine of Rs. 1,000/-in default of fine to suffer further simple imprisonment for three months is quashed and set aside. The accused is in jail. He be set at liberty, if not required in any other case. Fine amount, if any paid, be refunded to the appellant."