Surendra Vikram Singh Rathore, J.

1. These appeals were listed for hearing on the prayer for bail of the appellants but learned counsel for the appellants has submitted that it is a case of no evidence so the appeals be decided finally, hence we proceeded to hear these appeals on merits.

2. Sri Ran Vijay Singh, Piyush Kumar Singh and Anil Kumar Awasthi, learned counsel for the appellants and Sri Umesh Verma, learned Additional Government Advocate were heard.

3. Since all the three appeals i.e. (Criminal Appeal No. 1642 of 2014-Rajan alias Ankit Dixit and another V. State of U.P.), (Criminal Appeal No. 1725 of 2014-Munnan Nat V. State of U.P.) and (Criminal Appeal No. 24 of 2015-Ravi @ Ravishanker) arise out of a common judgment, therefore, the same are being disposed of with a single judgment.

4. Criminal Appeal No. 1642 of 2014 has been preferred by the appellants-Rajan alias Ankit Dixit and Munnar alias Pramod Kumar Dixit and Criminal Appeal No. 1725 of 2014 has been preferred by the appellant Munnan Nat and Criminal Appeal No. 24 of 2015-Ravi @ Ravishanker challenging the judgment dated 22.11.2014 and order dated 25.11.2014 passed by learned Additional Sessions Judge, Court No. 10, Unnao, in Sessions Trial No. 27 of 2010, arising out of Case Crime No. 445 of 2005, Police Station Bighapur, District Unnao, wherein four accused persons had taken their trial. Session Trial No. 28 of 2010, was under Section 396 IPC arising out of same crime number against Durga Prasad. Session Trial No. 29 of 2010 was against appellant-Munnar alias Pramod Kumar Dixit arising out of Case Crime No. 47 of 2006, under Section 3/25 of Arms Act, Police Station Bighapur, District Unnao. By the impugned judgment appellant Durga Prasad who took trial in Session Trial No. 28 of 2010 was acquitted. However, the remaining three appellants were convicted and sentenced as under:--

"(a) Under Section 396 IPC - Imprisonment for life with fine of Rs. 10,000/- with default stipulation of three years rigorous imprisonment."

5. However, these appellants were acquitted of the charge under Section 412 IPC. Appellant Munnar alias Pramod Kumar Dixit was also convicted in Session Trial No. 29 of 2010, under Section 3/25(1-B) (A) Arms Act and was sentenced with rigorous imprisonment for a period of three years with fine of Rs. 5000/-, with default stipulation of six months additional imprisonment.

6. All the sentences were directed to run concurrently.

7. In brief, the case of the prosecution was that the complainant Smt. Vijai Laxmi Soni lodged an FIR at the Police Station Bighapur, District Unnao on 27.12.2005 at 3:10 hours alleging therein that in the intervening night of 26/27-12-2005 she was sleeping alongwith her family in her house. In the night at 1:00 a.m. 8-9 miscreants after breaking open the door of her house trespassed into her house and first of all she was fired at which hit on left side of her left shoulder. Thereafter her elder brother Chandrahas Soni who was also sleeping on a separate cot was fired at by the miscreants. Hearing the noise of firing her father Rameshwar Soni and her mother who were sleeping on the roof of the house came down then miscreants also fired on his father because of which he died on the spot. Her mother Smt. Tulsa Devi was also fired at due to which she became unconscious. Some of the miscreants had covered their faces. One Ram Kishore Shukla of the neighbourhood also challenged the dacoits from the roof of his house so he was also fired at and he also died. Injured Chandrahas @ Babloo also expired. Miscreants after breaking open the almirah looted the jewellery from the house and their shop and ran away. There was light in the house and some of the miscreants were recognized as Pradeep Kumar, Munna Lal and Sudeep. Accused persons who were recognized were named in the FIR. On the basis of this FIR the case was registered against named accused persons. From the place of occurrence blood stained, plain earth was taken into custody. The inquest proceedings were conducted on the dead bodies of Rameshwar Soni, Babloo and Ram Kishore Shukla and their dead bodies were sent for postmortem. During course of investigation on 20.01.2006 appellants Rajan @ Ankit Dixit, Ravi @ Ravishanker were arrested by the police on a secret information and in the presence of the complainant, on their pointing out, some of the looted property was recovered and they were also found in possession of illegal country made fire arms. On 02.02.2006 the accused Munnar alias Pramod Kumar Dixit after taking him on police remand on his pointing out some of the looted property and one country made pistol was recovered. After investigation the police filed final report against the named accused persons and on the basis of the aforementioned recovery this charge-sheet was filed against the appellants. Since Durga Prasad was not arrested on the spot, therefore, a separate charge-sheet was filed against him and a separate charge-sheet against the appellant Munnar @ Ankit Dixit was filed under Section 3/25 Arms Act. However, the nomination of accused persons who were named in the FIR was found to be false.

8. The case of the defence was of their false implication because they could not satisfy the demand of police due to which they have been falsely implicated.

9. In order to prove its case the prosecution has examined PW-1 Vijai Laxmi Soni, the complainant of this case, PW-2 Smt. Tulsa Devi, PW-3 Smt. Ranjana, PW-4 Virendra Kumar, PW-5 Ashok Kumar, PW-6 Rinku Verma, PW-7 Smt. Dipika Soni, PW-8 Sri Sushil Kumar Agnihotri, PW-9 Kamal Bajpai, PW-10 Govind Narayan Shukla, PW-11 Ayodhya Pal, PW-12 Sudhir Bajpai, PW-13 Kuldeep, PW-14 Yogesh Chandra Verma, PW-15 Smt. Manju, PW-16 Dr. O.P. Srivastava, PW-17 Retd. S.I. Tulsi Ram, PW-18 Avadhesh Yadav, PW-19 Retd. S.I. Suresh Chandra, PW-20 Head Constable-6, Vinod Tripathi and PW-21 Constable-1386, Rajesh Kumar Bajpai.

10. No evidence in defence was led on behalf of accused persons.

11. After appreciating the evidence on record, the trial court has convicted the appellants as above, hence these appeals.

12. Submission of the learned counsel for the appellants was that in the instant case the alleged recovery was made after several days of the incident so the said recovery does not give rise to any adverse inference against the appellants and the learned trial court has acquitted them under Section 412 IPC. It has further been argued that apart from the said recovery there was absolutely no other evidence to connect the present appellants with the said offence.

13. Learned trial court in its judgment has mentioned injury reports and also the postmortem reports of the deceased persons. For the brevity of the judgment, we are not reproducing the same because the factum of dacoity and homicidal death of the three deceased persons is not under challenge.

14. Learned Additional Government Advocate has submitted that the learned trial court has correctly appreciated the evidence of the prosecution and also the evidence of the defence and thereafter has reached the correct conclusion and has convicted the appellants. Their conviction needs no interference.

15. PW-1 is the complainant she has stated as mentioned in the FIR, that some of the miscreants had covered their faces and she has named the other miscreants. She has stated that she has mentioned the names of such accused persons as she was asked by the other persons of her neighbourhood. She has also admitted in her cross examination that the FIR of this case was written at his home and at that time police was present. All the accused persons who were named by her in the FIR, were residents of Lucknow. Whatever she had written in the FIR was not her own version but it was written on the asking of the other persons. She has also stated that after about one month of the incident no police officer had contacted her. Her evidence shows that the recovery memos of the property were shown to her and her signatures were obtained on the recovery memos. She has not given any statement as to how the recovery was made by the police in her presence. She has stated that the memo was prepared at the police station and it was read over to him. Even the recovered property was not produced during trial before this witness. She has fairly admitted that no property was recovered from any accused in her presence. Thus the evidence of this witness instead of supporting the case of the prosecution has damaged it. PW-2 Smt. Tulsa Devi has supported the incident of dacoity and the homicidal deaths. She has not named any of the accused persons who were involved in this occurrence and has also expressed her ignorance regarding the accused persons who have been challaned by the police. PW-3 is Ranjana she is the daughter of the deceased Ram Kishore Shukla who was sleeping on the ground floor of the house of Ram Kishore Shukla. She has stated that the miscreants had not trespassed into her house and she had not recognized any accused who has killed her father or was involved in this incident. PW-4 Virendra Kumar is a formal witness of the recovery of blood stained and plain earth and the recovery of empty cartridges. This witness has also stated that he was not interrogated by the Investigating Officer and his signatures were obtained on blank papers. This witness was declared hostile. PW-5 Ashok Kumar is a witness of recovery of blood stained and plain earth from the place where dead body of Ram Kishore Shukla was found. He has proved the said recovery but has expressed his ignorance regarding factum of dacoity. PW-6 Rinku Verma is a Panch witness of inquest proceedings, PW-7 Smt. Dipika has supported the incident of dacoity. She has stated that she does not recognize the present appellants and she has not disclosed the names of these persons to the Investigating Officer. These persons had not committed dacoity in her house. After seeing the present appellants in Court during trial she has stated that these persons were not involved in the dacoity. Thus the evidence of this witness also against the case of the prosecution. PW-8 Sushil Kumar is also a witness of inquest proceedings of deceased Rameshwar Soni. PW-9 Kamal Bajpai he is also a witness of the same fact. PW-8, PW-9 and PW-10 are witnesses of inquest proceedings. PW-11 Ayodhya Pal has also supported the factum of dacoity and the murders but has expressed his ignorance regarding persons who have committed dacoity. He has also expressed his ignorance on the point of recovery. PW-12 Sudhir Bajpai, is also a witness of inquest. Thus the evidence of several witnesses of inquest have been produced but their evidence is meaningless in the instant appeals because their evidence is of no use to connect the present appellants with the instant offence. PW-13 is also a witness of inquest, PW-14 Yogesh Chandra Verma has not supported the incident of dacoity and murder of two persons. He has stated that at the relevant time he was not present in the house how his statement was recorded under Section 161 Cr.P.C. he could not explain. PW-15 Smt. Manju Singh has not supported the incident of dacoity and the murders. She has stated that on the date of incident she was not present in the house and went to the place of occurrence after getting the information. This witness was declared hostile. PW-16 is Dr. O.P. Srivastava, who has proved the postmortem on the dead bodies. PW-17 is Retd. S.I. Tulsi Ram, the Investigating Officer of this case. He has supported the incident of recovery which is alleged to have taken place on 20.01.2006 and the recovery made on 02.02.2006. PW-18 Awadhesh Yadav, who is also the Investigating Officer of this case who took up the investigation on 28.12.2005. PW-19 is Retd. S.I. Suresh Chandra, the Investigating Officer of the case under Section 3/25 Arms Act and PW-20 is Head Constable Vinod Tripathi who has prepared the chik report and G.D. of the case under Section 396 IPC, PW-21 Head Constable Rajesh Kumar Bajpai has prepared the chik report and G.D. of the case under Section 3/25 Arms Act. Thus the perusal of the evidence of all the witnesses shows that virtually there was no evidence except the alleged recovery made on 20.01.2006 and 02.02.2006 but none of the public witness has supported this factum of recovery and keeping in view the evidence of the other witnesses the evidence of the police witnesses regarding recovery becomes extremely doubtful. Even the complainant has stated that the said recovery memo was prepared at the police station and her signatures were obtained thereafter.

16. Learned A.G.A. has fairly conceded that there was absolutely no other evidence or circumstance to connect the appellants with the alleged offence.

17. From the evidence it is clear that in the intervening night of 26/27-12-2005 a dacoity was committed in the house of the complainant wherein Chandrahas Soni, Rameshwar Soni and one Ram Kishore Shukla were murdered and some other persons received injuries but the prosecution has utterly failed to prove that the said dacoity was committed by the present appellants. Even FIR of this case has been disowned by the complainant and she has stated that it was not her version but the FIR was lodged by her as dictated by the other persons. The accused persons, named in the FIR, were not known to her and their names were written in the FIR on the asking of the other persons. The other witnesses of fact PW-7 Smt. Deepita, an inmate of the house, has also stated that these are not persons who had committed dacoity in her house. Thus none of the appellants was identified by any of the witness to have taken part in the said dacoity. Neither they were put to test identification parade during investigation nor they were identified as the persons involved in this incident during trial. As stated earlier, the alleged evidence of recovery was highly doubtful and because the witnesses of fact have not supported this story of recovery, therefore, virtually there remained no evidence to connect the present appellants with the instant offence.

18. The property which is alleged to have been recovered which the prosecution says that it was the looted property, was not even produced before the complainant during trial. Thus in our considered opinion there remains absolutely no evidence to connect these appellants with the instant offence.

19. Accordingly these three appeals i.e. (Criminal Appeal No. 1642 of 2014-Rajan alias Ankit Dixit and another V. State of U.P.), (Criminal Appeal No. 1725 of 2014-Munnan Nat V. State of U.P.) and (Criminal Appeal No. 24 of 2015-Ravi @ Ravishanker) deserve to be allowed and are hereby allowed. All the appellants are acquitted of all the charges levelled against them. The appellants are in jail. They shall be released forthwith, if not, wanted in any other case. They be set at liberty.

20. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.