Kanta Bhatnagar, J.
1. This appeal is directed against the judgment passed by the Sessions Judge, Sri Ganganagar dated 19-4-1977 by which appellant Ved Prakash was convicted for the offence under Section 379, of the Indian Penal Code and Section 25, Arms Act and sentenced to three years rigorous imprisonment and a fine of Rs. 300/-, in default to undergo 2 months rigorous imprisonment on the first count and two years rigorous imprisonment and a line of Rs. 400/-, in default to undergo 6 months rigorous imprisonment on the second count. By the same judgment, appellant Prithvi @ Purshtam was held guilty for the offence under Section 411, of the Indian Penal Code and sentenced to two years rigorous imprisonment and a fine of Rs. 50/ in default to undergo one month's rigorous imprisonment.
2. Briefly stated the facts of the case giving rise to this appeal are as under: Dayal Singh was the younger brother of P.W. 5 Jangir Singh. These two brothers were living separate for about 15 years. Three years prior to the alleged murder of Dayal Singh in the year 1974, he came to Mohakamwala and lived with Shri Pritam Singh (P.W. 4) on the death of the father of Jangir Singh and Dayal Singh information was sent to the latter but he did not go to his house. Jangir Singh therefore went to Pritam Singh and enquired about his brother Dayal Singh. Pritam Singh informed him that Jangir Singh had gone with Ved Prakash son of Manudev about three months back and was living with him at Caak-2KK. Jangir Singh went to Chak-2KK and enquired about Dayal Singh. Milava Ram (PW 1) and Hernek Singh (PW 2) asked to Ved Prakash about Dayal Singh and wee told that Dayal Singh had left the village two months back and did not return. Dayal Singh had one double barrel gun, one she-camel, one camel cart and certain other articles, utensils etc. while he was living at Chak 2-KK. Ved Prakash is said to have held that he had disposed of the cart and the she-camel and placed the gun at village Mohakam wala. The list of the Articles Ex. P.1 was prepared and the articles were entrusted to Milava Ram on 16-10-74 On 19-10-74 Jangir Singh went to police station Gamodiwali and lodged the report Ex. D-3 about the missing of his brother Dayal Singh. Thereafter, on 25-10-74 Jangir Singh again went to the police station and lodged the report against the Ved Prakash & Prithvi appellant and their father Munidev to the effect that they had mis-appropriated the property belonging to his brother who was not traceable. Case under Sections 467, 380, 379 and 366. Indian Penal Code was registered against the two appellants and their father Manu Dev During the course of investigation, a skeleton was recovered from out side the house of Manudev and Section 302, I.P.C. was added. The cart was recovered from Lachman Mistri. Information was also said to have been furnished by Ved Prakash for disposing of the she camel. Similarly, a watch said to be belonging to Dayal Singh was recovered in pursuance of the information furnished by Prithvi. The case against Manu Dev was dropped at the investigation stage. Challan against the two appellants was filed in the Court of Munsif& Judicial Magistrate, Karanpur, who committed the accused to the Court of the Sessions Judge, Ganganagar.
3. The learned Sessions Judge proceeded with the trial of the case & examined as many as 25 prosecution witnesses in all. The two appellants totally denied the allegations levelled against them in their statement recorded under Section 313 Cr. P.C. No defence witness was examined. The learned Judge did not placed reliance on the prosecution case that the appellants were in any way concerned with the murder of Dayal Singh. However, the prosecution version about Ved Prakash disposing of the she-camel and the cart belonging to Dayal Singh was believed and he was convicted and sentenced far the offence under Section 379, I.P.C. as stated earlier. The recovery of gun at his instance without any licence in his name was believed and he was convicted and sentenced for the offence under Section 25 of the Arms Act also. The prosecution case about recovery of the watch belonging to Dayal Singh in pursuance of the information furnished by Prithvi appellant was believed and he was held guilty for the offence under Section 4(sic)1. I.P.C. end sentenced as stated earlier.
4. I have heard Mr. B.K. Chauhan, the learned Counsel for the appellant and Dr. S. S. Bhandawat, learned Public Prosecutor for the State and carefully examined the record of the case.
5. The learned Counsel for the appellants has streneously contended that, without there being any convincing evidence about Ved Prakash dispossing of the cart and the she camel of the deceased, he has been held guilty for the offences under Section 379, I.P.C. The learned Counsel emphasised that in Ex. P1 cart is shown as one of the items entrusted to Milawar Ram. According to learned Counsel, there is no evidence that any she camel was disposed of by Ved Prakash or that the signature on Ex. P 22 were those of Ved Prakash appellant. Assailing the findings for the offence under Section 25, of the Indian Arms Act, Mr. Chauhan stressed that the recovery of the gun at the instance of Ved Praksh has not been proved, and, therefore, no offence under the Arms Act can be said to have been made out. Advancing arguments for Prithvi appellant Mr. Chauhan firstly contended that the watch was not recovered in pursuance of the information furnished by appellant Prithvi and secondly, there is no evidence to prove that the watch recovered and exhibited belonged to Dayal Singh.
6. Learned Public Prosecutor controverted these contentions and submitted that there is no reason to disbelieve the extra-judicial confession of Ved Prakash before Milaver Ram and Hernak Singh. He also laid emphasis on the statement of Desh Raj P.W. 11 who has proved the receipt concerning the sale of she camel at a fair by Ved Prakash. The learned Public prosecutor has urged that Jangir Singh has identified the watch article 5, to be that of his brother Dayal Singh and therefore, conviction of Prithvi stands justified.
7. The prosecution case regarding the cart is that Ved Prakash had sold it to Lachman Mistri for an amount of Rs. 600/-. Laxman Mistri (PW. 6) has been examined to substantiate this. According to him Ved Prakash has told him that Dayal Singh had gone to Punjab and had asked him to sell the cart. That, the witness gave Rs, 10/- as earnest money to Ved Prakash and for the remaining amount, told him that he would pay the same to Dayal Singh on his return. It is pertinent to note that Milawar Ram P.W. 1, the witness to the alleged extra judicial confession has stated that Ved Prakash has confessed before him that he had sold the cart to Lachman Mistri for an amount of Rs. 400/-. Attention of witness Milawar Ram to his police statement Ex. D 1 was drawn where he had stated Rs. 600/- to be the cost of the cart. The witness dis-owned that portion of the statement. Thus, this discrepancy about the amount settled, throws doubt on the prosecution version regarding the extra-judicial confession. Tota Singh P. W. 3 has stated that he was present at the time of the Panchayat and that, Jangir Singh had told that whatever articles are left, may be given to him This witness no where speaks of any extra-judicial confession by Ved Prakash regarding the she-camel and cart. Ex. P-1 is the list of articles entrusted to Milawar Ram. Cart is included in those articles. Attention of this witness Milawar Ram being drawn towards this entry, he stated that he was entrusted that cart lying with Lachman Mistri. The witness had not stated in the police statement about Ved Prakash telling him that he had received Rs. 10/- as earnest money for the cart. No where was it the case of the prosecution prior to the statement of Milawar Ram, as the trial that the cart was entrusted while lying with Lachman Mistri Attention of Jangir singh was drawn to Ex. D-3 where the fact of the extra-judicial confession by the appellant Ved Prakash regarding the cart and the she-camel was missing. The fact of assembling the panel as is also missing in Ex. D 3 and Jangir Singh could not give any explanation for the same. Similarly in Ex. P 18 there is no mention about the extra-judicial confession of Ved Prakash regarding the cart or the she-camel or the gun. Attention of Jangir Singh was drawn to that material omission in the Firs' Information Report but he could not give any explanation. In view of these circumstances the alleged extra-judicial confession by the appellant Ved Prakash regarding the cart alleged to have been disposed of by him cannot be believed.
8. Coming to the allegation about the she-camel, I need not repeat the omission of the extra-judicial confession regarding the same in Ex, D-3 and Ex. P 18. These reports were subsequent to the alleged extra-judicial confession. Deshraj P.W. 11 is the witness who has stated that on 15.9.74 at the cattle fair he had issued receipt regarding the sale of the cattle. He proved receipt No. 43 Ex. P. 22 being his hand-writing. According to the witness, through this receipt one she-camel was sold. The seller was Ved Prakash son of Nanu Dev of village Nohkamwala who had appended his signatures on that receipt. According to that witness the buyer had appended the thumb impression on that receipt in his presence. The witness stated that the she-camel was sold for Rs. 180/-. The discrepancy in the cost giver by Desh Raj and the one coming in the alleged extra-judicial confession itself throws doubt on the prosecution case. Apart from it there is no evidence to the effect that the signatures on Ex. P 22 were of Ved Prakash appellant. It is pertinent to note that no question has been put to the accused in his statement that the receipt Ex. P 22 bears his signature. There is no data given by the expert in his report as to how the specimen signatures tallied with the disputed signatures. The purchaser of the she-camel had not been examined by the prosecution despite his address and name being available through Ex. P. 22. He would have been the best person to identify the seller of the she-camel. Similarly, no efforts have been made to recover the she-camel from the purchaser to prove that the same belonged to Dayal Singh. In absence of evidence to that effect, the learned Judge was not correct in holding that the she-camel belonging to Dayal Singh was sold by the appellant, In these circumstances, I am inclined to hold that conviction of the appellant for the offences under Section 379, I.P.C. is not sustainable.
9. The learned trial Judge has not believed the prosecution version that the gun article 2 belonged to Dayal Singh. The conviction under Section 26 of the Arms Act is based on the testimony of the Investigating Officer, Abdul Gani (P.W.25) and Jangir Singh (P.W.5). The gun article 2 according to the prosecution witnesses was recovered from the field of Manu Dev, at an open place. Hence, it cannot be said that it was recovered from the exclusive possession of Ved Prakash. It is admitted by the witness Jangir Singh and Abdul Gani, Investigating Officer, that the gun was neither sealed nor wrapped in any cloth. There is no evidence by any expert about the gun being serviceable. This being the position, conviction of the appellant for the offence under Section 25 of the Indian Arms Act also can not be justified.
10. The only evidence against Prithvi appellant is the recovery of the watch. Prithvi was arrested on 21-11-74. The information Ex.P.29 said to have been furnished by him for getting the watch recovered is dated 25.11.74. The recovery memo Ex. P. 23, is dated 26-11-74. The learned Counsel for the appellant stressed that, the very fact of the information being furnished after 6 days of the arrest shows that it could not be voluntary in nature. The witness to this recovery is P.W.18 Dilip Singh. The criticism levelled against the Motbir witness by Mr. Chauhan is that he happened to be the relative of Gurujant Singh (P.W.13) who had recovered this watch. The alleged recovery is said to have been made from the place of tieing the cattle at the house, which was an open place. According to Gurujant Singh, he had prepared the recovery memo at the place of recovery itself. On the other hand, Dilip Singh Motbir has stated that he accompanied police to the Nohra of Dhanpat where the memo was prepared and signatures taken. Gurujant Singh admitted that the watch was not sealed It is relevant to observe that no identification parade was conducted for the identification of the watch. According to Dilip Singh, the only mark of identification of the watch was its white dial. On Jagir Singh's statement, the prosecution has based its case about the watch-belonging to Dayal Singh. As stated above, he was not asked to identify the watch at any (sic)est identification parade. He has admitted that he does not know any mark of identification of the watch. According to him he was stating about the watch belonging to Dayal Singh only because he had seen him putting it on his wrist. He has also admitted that Dayal Singh purchased the watch after coming from Punjab. With this type of evidence, it can not be held that prosecution has established by convencing evidence that the watch was recovered in pursuance of any information furnished by appellant Prithvi or the same belonged to Dayal Singh. Thus, there is no ground for the conviction of Prithvi for the offence under Section 411, I.P.C.
11. Consequently, the appeal is allowed. The conviction and sentences awarded to the appellants Ved Prakash and Prithavi are set aside and they are acquitted of the charges. Both of them are on bail. They need not surrender. Their bail bonds stand discharged.