JUDGMENT
S.N. Pathak, J.
1. The sole appellant Manoj Sahni, was convicted by the trial Court in its judgment dated 15.7.1991 rendered in Session Trial No. 148/89 under Sections 395 and 412 IPC and he was sentenced to undergo RI for ten years on both the counts. The sentences were directed to run concurrently.
2. The prosecution case was based on the fardbayan of one Nirmala Shrivastava wherein she alleged that on 29.4.1987 at about 10 p.m., she was inside her house alongwith her children. The exit door of her house was open. Suddenly, five persons entered insider her house with bombs and country made pistol. Two of the culprits were standing outside the house and keeping watch. One of the culprits who had entered into her house asked for jewellary and other valuables in the house at the point of fire arms. The informant handed over the key to the docoit and then the docoit searched the articles inside the box and found nothing insided the box except papers. One the docoits relieved the informant’s son Manish of his electronic writs watch. Another son of the informant was also relieved of his wrist watch. Subsequently, one of the dacoits exploded bomb inside the room causing injury upon herself and her sons. One of the dacoits fired from his pistol which caused some injury upon the informant. No other article was looted from the house of the informant. Fardbayan was recorded at Sadar Hospital, Muzaffarpur on 29.4.1987 at 10.30 p.m. The trial Court, on the basis of seven witnesses and some papers and documents exhibited in the Court, held the accused-appellant guilty as stated above. The trial Court held on the basis of the evidence of PWs. 1, 2 and 4 coupled with the objective evidence of PW 6, Part IO of the case, that the factum of the dacoity inside the house of the informant was well established. PWs 1, 2 and 4 who were mother and sons made positive statements regarding dacotiy in their house and PW 6 found the objective materials which confirmed the factum of the dacoity. He had prepared seizure list for splinters of bomb found at the place of occurrence and he also found pieces of flesh which fell after being pealed off from the persons of the victims as also of one of the dacoits Kanchan Sahni, who was also convicted alongwith the appellant.
3. Kanchan Sahni was convicted on the ground that he was identified in TI Parade as one of the culprits who entered inside the house of the informant.
4. The present appellant, Manoj Sahni, was convicted on the ground that one of the electronic wrist watches was recovered from his house. Production-cum-seizure list was brought on record (Exhibit-4) copy of the seizure list was handed over to the accused who fixed his LTI in token of the receipt of the copy. This recovered article was identified by PWs 1 and 2 in TI Parade already held by PW 3. PW 6 also supported the fact of production-cum-seizure of the looted article (material exhibit I). PW 6 had gone to the house of the accused-appellant finding the traces of blood from the house of the informant upto the house of the accused-appellant. Then the accused appellant was searched and the appellant himself produced recovered wrist watch taking the same out from under the pillow. The trial Court in its judgment at para 8 has clearly stated that accused-appellant Manoj Sahni, could not be identified in TI Parade as culprit, but his conviction was based on the recovery of the looted article from the house of the appellant. In his examination under Section 313 Cr.P.C., the appellant has stated that his own wrist watch was forcibly taken by the police at the police station, and nothing was recovered from his house and his LTI was also taken on the seizure list. The trial Court convicted the accused-appellant only on the basis of the recovery of the alleged looted article from his house. But the question is whether this piece of evidence was sufficient to establish the guilt of the accused under Section 412 IPC. The trial Court wrongly stated in its judgment that PWs 1, 2 and 4 had identified the alleged looted article recovered from the house of the accused-appellant. On perusal of the record, it transpires that of course, PWs 1 and 2 stated in their evidence that they had identified the wrist watch in TI Parade held by PW 3; but PW 4 Saidin Chief itself that he did not go to identify any looted article in TI Parade. So, he was declared hostile and was cross-examined by the persecution but to no effect. PW 5 seizure list witness, denied that seizure of any incriminating article was made in his presence, although be admitted his signature on the seizure list. From the charge-sheet (its column 5), it transpires that alleged seized article was put in “Thana Malkhana”. PW 7 produced the wrist watch in the Court on the basis of which it was marked as material Exhibit I. However, it is, apparent that the seized article as neither put in sealed cover nor perhaps it was kept in Malkhana under the seal of the police officer in seisin of the same. The evidence of PW 7 does not state that this witness produced the watch in sealed covered bringing the same from Malkhana. It is, therefore, not clear whether this PW 7 produced the watch from his own custody. Moreover, the recovered article was not produced in Court before PWs 1 and 2 who are victims of the alleged dacoity. It was imperative on the part of the prosecution to get the alleged seized article identified in Court by the concerned witnesses to confirm the fact that the looted article from their house was, of course, seized by the police from the house of the appellant. So, identification of PWs 1 and 2 of the concerned looted article in TI Parade was not sufficient to prove that the article looted from the house of victim of the occurrence was, of course, seized from the house of the accused-appellant. This infirmity in the prosecution evidence was further reinforced by the denial of PW 5 that any incrementing article was seized from the house of the appellant and by the negative evidence of PW 4 which was also one of the victims PW4 was declared hostile by the prosecution when he failed to say that he had come in TI Parade to identify the recovered article from the house of the appellant.
5. There was another legal faux-pas committed by the trial Court in its impugned judgment. The trial Court in its categorical statement in para 8 said that the appellant was not identified in TI Parade. So there was no evidence against the appellant for having participated in the alleged offence of dacoity inside the house of the informant. In such circumstances, the appellant could not legitimately be convicted under Section 395 IPC. Moreover, recovery of any incriminating article may be a piece of evidence to connect the accused with the main offence of dacoity but the same accused cannot be convicted for both the offence of dacoity and recovery of any incriminating article. The same accused can at best be convicted either under Section 395 or Section 412 IPC. The trial Court admittedly committed an error in holding the appellant guilty both under Sections 395 and 412 IPC. The above infirmity apart, I have already stated above that the evidence regarding recovery of incriminating article also from the house of the appellant was insufficient and not so positive as to hold him guilty under Section 412 IPC.
6. As a result of the aforesaid discussions on the entire gamut of the evidence and the circumstances of the case, I hold that the impugned judgment passed by the trial Court is redolent with legal infirmities. It is further held that this judgment cannot be allowed to stand. The impugned judgment and order of conviction and sentence is, accordingly, set aside. Appellant shall stand acquitted and discharged from the liability of bail bond.