JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 15.04.1988 passed by the Special Judge (DAA) Banda, in Special Sessions Trial No.172 of 1986 State of U.P. Vs. Sukh Ram and another, arising out of Case Crime No.892 of 1986, under Section 394 IPC, Police Station- Kotwali, District- Banda whereby the appellants have been sentenced to three years rigorous imprisonment. 2. Heard Sri Amber Khanna, learned Amicus Curiae for the appellant no.1 Sukh Ram, Sri Jitendra Prasad Mishra, learned counsel for appellant no.2 Suresh, Sri B.D. Nishad, learned AGA for the State and perused the record. 3. Relevant facts giving rise to this appeal as discernible from the records appear to be that a written report was lodged by Ram Khilawan PW-1 at Police Station Kotwali, on 17.07.1986 at 6:55 p.m. whereby the allegation was made that both the appellants looted silver chain (Sutiya) of his daughter Kailasiya while she was looking after vegetable field around 4:00 p.m. at some place near the bank of Cane river at a distance of 2 kilometers, Police Station Kotwali, District Banda. The written report is Ext. Ka-1. 4. Contents of the aforesaid information were taken down in the Check FIR on 17.07.1986 at 6:55 p.m. at aforesaid police station at Case Crime No.892 of 1986 under Section 394 IPC. Check FIR is Ext. Ka-4. On the basis of entries so made in the check F.I.R., a case was registered in the relevant G.D. at serial no.31 on 17.07.1986 at 06:55 p.m. at aforesaid case crime number at Police Station Kotwali under aforesaid section of I.P.C. against appellants, which is Exhibit Ka-5. 5. Pursuant to the lodging of the first information report, the investigation ensued. The injured namely Kailasiya was medically examined at District Hospital, Banda on 17.07.1986 at 8:10 p.m. by the Medical Officer, who noted one contused swelling 5 cm x 4 cm on the front and middle part of her right high. Red in colour. Injury was simple and stated to be caused by blunt object. Injury report is Ext. C-1. 6. The Investigating Officer recorded statement of the various persons and prepared site plan of the incident as Ext. Ka-2. After completing the investigation, the Investigating Officer submitted charge sheet Ext. Ka-3 against the appellants under Section 394 IPC. 7. Red in colour. Injury was simple and stated to be caused by blunt object. Injury report is Ext. C-1. 6. The Investigating Officer recorded statement of the various persons and prepared site plan of the incident as Ext. Ka-2. After completing the investigation, the Investigating Officer submitted charge sheet Ext. Ka-3 against the appellants under Section 394 IPC. 7. As a sequel to it, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial to the aforesaid trial court of Special Judge, (Dacoity Affected Area), Banda who in turn heard both the prosecution and the accused on point of charge and was prima-facie satisfied with case against the appellants, accordingly, framed charges under Section 394 IPC. Charge was read over and explained to the appellants who abjured charges and opted for trial. 8. In turn, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 3 witnesses. A brief sketch of witnesses is as under:- 9. Ram Khilawan PW-1 is the informant and father of the victim. He has proved the written report Ext. Ka-1. Kailasiya PW-2 is the victim herself, she has described about the incident. S.I. Angad Singh PW-3 is the Investigating Officer. Besides the aforementioned prosecution witnesses, the trial court examined Dr. K.C. Gupta CW-1 in proof of the medical examination report Ext. Ka C-1. Except as above, no further evidence was adduced by the prosecution. Therefore, evidence for the prosecution was closed. 10. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. wherein they have claimed their innocence and stated that they have been falsely implicated in this case. No evidence, whatsoever, has been led by the appellants. 11. The case was heard on merit by the learned Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellants under Section 394 IPC and sentenced the appellants to three years rigorous imprisonment. 12. Consequently, this appeal. 13. The crux contention raised on behalf of the appellants is based on fact that the entire story has been concocted and is outcome of deliberation with the police of Police Station Kotwali, District Banda. 12. Consequently, this appeal. 13. The crux contention raised on behalf of the appellants is based on fact that the entire story has been concocted and is outcome of deliberation with the police of Police Station Kotwali, District Banda. Insofar as appellant no.1 Sukh Ram is concerned, there is admitted enmity with the parents of Sukh Ram and the informant Ram Khilawan and he was inimical towards parents of appellant no.1. Insofar as the contention raised on behalf of appellant no.2 Suresh is concerned, it has been claimed that he was dealing with bricks and the police wanted to extract money which was refused. Therefore, appellant no.2 has been falsely implicated in this case. 14. The attention of the Court was engaged to the various contradictions appearing in the testimony of PW-1 and PW-2. It has been claimed that no incident has ever taken place and PW-2 was never present on the spot. The description of injury given by the victim Kailasiya is itself contradictory to the medical examination report because only one contused swelling 5 cm x 4 cm on the front and middle part of her right high was noted by the doctor witness, whereas, the victim says that two Danda blows were given on her and 10-12 fists were given on her back but there is only one injury. There is no whisper in the entire medical examination report of the victim that she ever complained of any pain what to say about any visible injury. That way, credibility of both witnesses namely PW-1 and PW-2 is impeached and their testimony does not carry element of truth. 15. Per contra, the learned AGA retorted to aforesaid arguments by submitting that there is no material contradiction in the testimony of the prosecution witnesses. The trial court has judiciously recorded conviction and has passed appropriate sentence. 16. We have also considered the rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal relates to fact as to whether the offence under Section 394 IPC was committed by the appellants and the prosecution has proved charge under Section 394 IPC beyond reasonable doubt? 17. 16. We have also considered the rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal relates to fact as to whether the offence under Section 394 IPC was committed by the appellants and the prosecution has proved charge under Section 394 IPC beyond reasonable doubt? 17. Perusal of the first information report reflects that both the appellants are alleged to have committed robbery of some silver chain (Sutiya) worn by daughter of the informant PW-1 around 4:00 p.m. However, there is no recovery reported and there is no whisper about any effort being made for tracing out the looted ornament of silver chain (Sutiya). The name of the appellant no.2 Suresh though given in the first information report has not been spelt by PW-1 in his testimony instead he spelt name of one Ramesh in place of Suresh which also creates doubt about identity of the real person. 18. There is nothing on record which may establish that appellant Suresh in fact was also called by name of Ramesh. This anomaly appearing in the testimony of PW-1 is not in consonance with the description of the name of the appellant Suresh figured in the first information report. Therefore, it is obvious that the role of Ramesh has been deliberately brought in by PW-1 and in regard to the contention so raised, the police was interested in false implication of the appellants under facts and circumstances of the case, it is justified. No specific recovery, whatsoever, has been reported from appellant no.2 Suresh. 19. Testimony of PW-2 on the point is most relevant, for the reason that she is victim of the offence in question. Bare perusal of the testimony of PW-2 reflects that she was severely beaten by the appellants. Two bamboo blows were also given to her besides giving 10-12 fists on her back. But the medical examination report of the victim which is Ext. C-1 on record and proved by the doctor witness CW-1 explicitly establishes fact of only one contused swelling 5 cm x 4 cm on the front and middle part of her right high at the time of medical examination. If the victim was so severely beaten by two young men then injury report does not tally with the description of manner of causing injury to the victim by the appellants. If the victim was so severely beaten by two young men then injury report does not tally with the description of manner of causing injury to the victim by the appellants. That way also, testimony of PW-2 does not inspire confidence and veracity of her testimony is to be corroborated by the independent witness. However, no such independent witness has been examined by the prosecution though the first information report entails a long list of witnesses who arrived on the spot. 20. In view of above, the entire incident appears to be shrouded in mystery. Both the prosecution witnesses are vacillating and giving contradictory statement insofar as the role of the Investigating Officer PW-3 is concerned. As per testimony of the prosecution witnesses PW-1 and PW-3, the Investigating Officer visited the place of occurrence three days after the incident i.e. 20.07.1986, however, the Investigating Officer has stated that he visited the spot on 18.07.1986. That way also, things appear to have been managed by the police and the informant PW-1. There was no such identification of the appellants that they, in fact, were present on the spot and they committed the crime. 21. Lot of doubts are created because of inconsistent description of the prosecution witnesses when compared with the prevailing facts and circumstances of the case. Consequently, the conviction recorded by the trial Judge appears to be erroneous and against material on record and the trial Judge misread into evidence vis-a-vis facts and circumstances of the case which renders the order of conviction and sentence not justified under facts and circumstances of the case. The prosecution was not able to prove its case beyond reasonable doubt. 22. In criminal jurisprudence, it is settled principle of law that testimony and circumstances of the case must positively point out guilt of the accused beyond reasonable doubt and in case evidence when taken together with facts and circumstance of the case appears to be shaky, vacillating and full of improvements then charge framed against the accused will lose its legal significance and the accused will be entitled for acquittal. In this case, there is no worthy evidence which may connect the accused with the commission of the crime but the trial court while taking stock of merit of the case overlooked this factual aspect and erroneously recorded finding of conviction and passed sentence against the appellants under Section 394 IPC which is not sustainable in the eye of law. 23. Consequently, the arguments advanced by the learned counsel for the appellants carry force. Therefore, the judgment and order of conviction dated 15.04.1988 passed by the Special Judge (DAA) Banda, in Special Sessions Trial No.172 of 1986 State of U.P. Vs. Sukh Ram and another, arising out of Case Crime No.892 of 1986, under Section 394 IPC, Police Station- Kotwali, District- Banda, is set aside. Accordingly, the present appeal is allowed. 24. The appellants are acquitted of charge under Section 394 IPC. 25. In this case, the appellants are on bail. They need not surrender before the court below. However, the appellants shall ensure compliance of Section 437A Cr.P.C. 26. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.