JUDGMENT 1. - The instant revision has been preferred by the petitioners against the judgment dated 28.5.2012 passed by learned Addl. Sessions Judge (F.T.) No. 1, Hanumangarh in appeal whereby he has upheld the judgment dated 18.7.2005 passed by the learned Judicial Magistrate, Ist Class, Tibbi in Cr. Original Case No. 411/2002 convicting the petitioners for the offence 447 I.P.C. and also maintained the sentence of three months S.I. and a fine of Rs. 500/- in default to undergo 15 days S.I. awarded to the petitioners. The learned Addl. Sessions Judge(F.T.) also maintained the conviction of the petitioners under Section 380 I.P.C., however, the sentence of 3 years R.I. with a fine of Rs. 2000/- awarded to them by the learned trial court has been reduced to a sentence of 2 Years R.I. with a fine of Rs. 2000/- and in default to undergo three months S.I. Both the sentences have been ordered to run concurrently. 2. Succinctly stated the facts of the case are that one Ranvir lodged a report at the Police Station Tibbi on 13.11.2002. The allegation levelled in the report was that he had stored cotton in the Kotha of his house located at Village Chahuwali. When the complainant went to the said Kotha on 12.11.2002, he found that the lock of the room where the cotton was stored was broken and about 8 quintals of cotton packed in Pallis (cotton bales) was missing. The complainant alleged that he took his driver and 3-4 other persons and tracked the foot marks and tyre marks going away from his house. On following the marks, they reached the house of Madanlal of Mirzawalimer. and saw a camel cart standing outside the house of Madanlal. On inquiry from Madan he revealed that Ved Prakash, Subhash and Balwant took the camel cart on rent on the ground that they had to transport cotton from Chahuwali to Rawatsar. The complainant allegedly reached Rawatsar and saw the Pallis wherein cotton was packed (cotton bales) lying there. The three accused named above were sitting near the bales and ran away on seeing the complainant party. The bales were having the name of the complainant written on them and were lying in untied condition near the heap of cotton. 3. On the basis of this report a First Information Report No. 347/2002 was registered at P.S. Tibbi and investigation commenced. The bales were having the name of the complainant written on them and were lying in untied condition near the heap of cotton. 3. On the basis of this report a First Information Report No. 347/2002 was registered at P.S. Tibbi and investigation commenced. The investigating officer arrested the three petitioners and recorded their informations under Section 27 of the Evidence Act and thereafter recovered the cotton bales from a shop named Mahalaxmi Trading Company, Rawatsar on the basis of the information given by the accused. The recovery was effected on 15.11.2002. A charge sheet was filed against the accused petitioners for the offences under Sections 457 and 380 I.P.C Judicial Magistrate, First Class, Tibbi. Charges were framed against them for the said offences. The accused denied the charges and claimed trial. At the trial the prosecution examined as many as 7 witnesses in support of his house. The accused in their statements recorded under Section 313 Cr.P.C. denied the allegation of the prosecution witnesses but did not choose to lead any evidence in defence. The trial court at the conclusion of the trial proceeded to convict and sentence the petitioners as above. The petitioners preferred an appeal which was partly been allowed by the Appellate Court only on the question of sentence. Now, the petitioners have approached this Court by way of the instant revision challenging their conviction and the sentences awarded to them by the trial court as modified by the Appellate Court. 4. Mr. Rakesh Matoria, learned counsel for the petitioners submitted that the petitioners' conviction in this case is absolutely illegal. He contended that the petitioners have been convicted solely on the basis of the recovery of the cotton bales made at their. He contended that the recovery has been effected in a totally dubious fashion. He further contended that the star witness of the prosecution who identified the petitioners as the persons who had taken the camel cart with them was P.W.5 Madanlal. He did not support the prosecution story at the trail. He submitted that no witness from Mahalaxmi Trading Company where the cotton bales were allegedly placed by the accused has been examined either during the investigation or at the trial. Learned counsel further submitted that P.W.1 Surendra Kumar has admitted in his cross examination that he did not know the petitioners. He submitted that no witness from Mahalaxmi Trading Company where the cotton bales were allegedly placed by the accused has been examined either during the investigation or at the trial. Learned counsel further submitted that P.W.1 Surendra Kumar has admitted in his cross examination that he did not know the petitioners. He further contended that P.W.2 Mahavir the uncle of the complainant as well as Ranvir the complainant also admitted that they did not know the petitioner Balwant and have not identified him at the trial. Learned counsel thus submitted that the revision deserves to be accepted and the petitioners deserves to be acquitted from the charges. 5. Per contra learned Public Prosecutor contended that the two courts below have appreciated and re-appreciated the evidence in its entirety and have arrived at a concurrent finding of guilt against the petitioners. He submitted that the recovery of the stolen cotton has been effected at the instance of the petitioners and this fact alone is sufficient to uphold their guilt. Learned Public Prosecutor thus submitted that the petitioners' conviction does not call for any interference. 6. Heard and considered the arguments advanced at the bar and perused the record. Certain facts which are not disputed from the record are enumerated hereunder:- (i) The theft is alleged to have taken place in the preceding night of 12.11.2002. (ii) The complainant admittedly before filing of the First Information Report was aware of the shop where the stolen cotton was placed by the accused (Rawatsar). (iii) No person from the concerned shop i.e. Mahalaxmi Trading Company, Rawatsar has been examined by the prosecution. (iv) The recovery of cotton has been shown to have been effected on the basis of the information's given by the accused to the I.O. under Section 27 of the Evidence Act. The informations have been recorded in the following order:- Ex.P-14 Information of Subhash Chandra dated 14.11.2002 recorded at 8.45 P.M. Ex.P-15 Information of Balwant dated 14.11.2002 recorded at 9 P.M. Ex.P-13 Information of Ved Prakash dated 14.11.2002 recorded at 9.30 P.M. After receiving these informations on 14.11.2002, the I.O. recovered the alleged stolen cotton vide Ex. P-4 dated 15.11.2002 from the shop named Mahalaxmi Trading Co. Rawatsar. 7. P-4 dated 15.11.2002 from the shop named Mahalaxmi Trading Co. Rawatsar. 7. Now, this Court has to consider as to whether the recovery of the cotton bales which has been effected by the I.O. in this case can be considered to be a valid and genuine recovery thereby justifying the conviction of the petitioners. It is not in dispute that the place where the cotton was kept by the accused after the alleged theft was known to the complainant even before filing of the F.I.R. Thus, the information's which have been recorded by the I.O. are as a matter of fact information's relating to the facts already known to the I.O. Nothing new was discovered in pursuance to the information given by the three accused under Section 27 of the Evidence Act. That apart, three different information's have been recorded by the I.O. as stated above. The first in time being given by the accused Subhash Chandra. Therefore, even if it is assumed that the I.O. was not aware where the cotton was lying, then too only the information which is the earliest in point of time would be admissible in evidence. It does not stand to reason that despite knowing about the place where the cotton was lying, the I.O. would wait for two days before recovering the same. It is apparent that as if the I.O. was deliberately marking time so that the accused may be first shown arrested then information could be extracted from them and thereafter recoveries could be shown. In this view of the matter, the recovery of the cotton at the instance of the accused vide Recovery Memo Ex.P-4 is per se not reliable on its face value. If the factum of recovery is taken out from the prosecution case, then the only incriminating fact available on record against the accused would be the fact regarding the accused having been seen sitting at Mahalaxmi Trading Company keeping guard on the cotton allegedly belonging to the complainant. If this fact had to be taken as an incriminating piece of evidence, then it was obligatory for the prosecution to have examined some person of Mahalaxmi Trading Co., so that the fact that the accused brought the cotton to the shop could be established. Admittedly no such person has been examined either during investigation or at the trial. If this fact had to be taken as an incriminating piece of evidence, then it was obligatory for the prosecution to have examined some person of Mahalaxmi Trading Co., so that the fact that the accused brought the cotton to the shop could be established. Admittedly no such person has been examined either during investigation or at the trial. Madanlal PW-5 the star witness who was examined for the purpose of proving that the accused had hired his camel cart for transporting the cotton has not supported the prosecution story and has turned totally hostile. Therefore, there is no material whatsoever on the record of the case to connect the accused with the crime. The conviction of the petitioners as recorded by the trial court and as affirmed by the Appellate Court is totally illegal. 8. Resultantly, the revision deserves to be allowed and is hereby allowed. The conviction as awarded to the petitioners by the trial court and as affirmed by the Appellate Court are set aside. The petitioner Ved Prakash is in jail. He shall be released from custody forthwith, if not required in any other case. The petitioners Balwant and Subhash are on bail, their bail bonds are discharged. Record be sent back.Revision Allowed. *******