The identification of an accused person must be reliable and the recovery of stolen property must be proved beyond a reasonable doubt in order to secure a conviction.

1. - This appeal is directed against the judgment of the learned Additional Sessions Judge, Kishangathbas camp Behror, dated 28-1-1982, whereby the appellants have been found guilty under Sections 395 and 397 Indian Penal Code Under Section 395 IPC, they have been sentenced to ten years rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine to fur,he.r undergo a rigorous imprisonment of one year. Under Section 397 IPC, 10 years rigorous imprisonment.

2. The prosecution story is that Ishaq Meo lodged a first information report at the police station Kishangarh Bas on 2-4-80 that on the previous night at about 1 p. m, Rahim Bux cattle to his village and told him that in the dhani of Ghamman certain persons have taken away the goods of Gliamman after giving him beating. When the villagers went to the house of Ghamman, it was found that Ghamman and Modla were lying injured in front of their house and were unconscious. When the villagers went into the poll of the house they found Swarupi his daughter and his son Fazru closed in the room. They were taken out from the room. The goods of Ghamman were found scattered and the locks of the boxes were found broken. When the inmates came to their senses they told that Modla was slerping outside the house on Chabutra in the night at about 12. 30 P. M. He found that three persons were standing there and on an enquiry one of them raised his lathi and rest of the two gave him beating. Thereafter Ghatnrnan came from inside and was also beaten by those persons. Thereafter certain persons went inside the house, gave beating to other inmates and took-away the ornaments after closing Swaroopi, Majri and Fazru in a room. On this report a case under Sections 458, 380, 34 Indian Penal Code was registered and after investigation the case was converted into 395 and 397 IPC. The police started investigation of this case.

3. During the investigation of this case the police arrested Noor Khan, Shur Khan, Kale Khan, Ratan Lal and Baowari Lal. On the information under Section 27 of the Evidence Act given by Noor Khan, the police recovered some ornaments. Similary on the information of the accused Banwari and Ratan Lal some ornaments were recovered. Identification of the recovered ornaments was done and the ornaments were identified by Ghanman, Swarupi and Modla. Identification of the accused persons Ratan Lal, Noor Khan and Banwari was also conducted and Ghanman, Swarupi and Modla have identified these accused persons. After completing the investigation the police challaned five persons, three petitioners and Sher Khan and Kaleknan. After recording evidence and hearing both parties, learned Additional Sessions judge acquitted Sherkhan and Kale Khan for the offences charged against them. He found guilty the three petitioners under section 395, 397 Indian Penal Code and convicted them as mentioned above.

4. Learned counsel for the petitioner has argued that no case has been established under section 397 IPC. The allegation of the prosecution witnesses that they were given beating by the accused persons and they received injuries has not been substantiated by examining the doctor. Their injuries were not examined by any medical doctor. No injury report has been submitted in the Court. The Medical Officer has not been examined by the prosecution to prove that the witnesses Ghanrtnan, Swarupi, Modla and other initiates were given beating by the petitioners and they received injuries. So unless it is proved that the accused persons gave beating to the inmates of the house at the time of dacoity, a case under Section 397 is not proved. The injuries of the victims of the dacoity are to be proved. As there is no proof about the injury to the victims, the learned Sessions Judge has committed error in finding them guilty and convicting them under Section 397 IPC.

5. I, therefore, hold that conviction and sentence of the petitioners under section 397 Indian Penal Code is bad and they are acquit