1. - This appeal has been preferred against the judgment of conviction and order of sentence dated 17.05.2012 passed by the learned Additional Sessions Judge (Fast Track), Dungarpur in Sessions Case No.62/2010 whereby the appellants-accused were convicted for the offences under Sections 341 and 395 IPC and sentenced each of them as under:-

U/s.341 IPC:

One month's simple imprisonment.

U/s.395 IPC:

5 years' rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, to further undergo 2 years' rigorous Imprisonment.

2. The brief facts of the case are that on 16.08.2010, complainant Smt. Kamla presented herself before the SHO, PS Nithawar, District Dungarpur and gave an oral information alleging that on 29.05.2010, when she was returning to her village after shopping from Nithawar Market and when she reached Nithawar Magra Fala, she saw five persons with covered faces on two motor-cycles, who were standing on road. They surrounded her and three of them came near her and snatched two silver ornaments from her neck weighing 50 tolas and thereafter they ran away on their motor-cycles. It was also stated that since then they were trying to search the offenders and now she came to lodge this report.

3. On the basis of the above information, FIR No.61/2010 was registered for the offence under Section 392 IPC and Investigation commenced. After completion of investigation, the police filed charge-sheet against the appellants-accused for the offences under Sections 341 and 395 IPC before the court of learned Judicial Magistrate, Aaspur, who committed the case to the court of learned Sessions Judge, Dungarpur from where the case was transferred to the court of learned Additional Sessions Judge (Fast Track), Dungarpur (for short 'the learned trial court') for trial. The learned trial court, thereafter framed charges for the offences under Sections 341 and 395 IPC to which they denied and claimed trial. Thereafter, they were examined under Section 313 Cr.RC. wherein they denied the prosecution evidence and stated that they have been Implicated falsely. However, they did not lead any evidence in defence.

4. The learned trial court, after hearing, vide Impugned judgment of conviction and order of sentence dated 17.05.2012, convicted and sentenced the appellants-accused as aforesaid. Hence, this appeal.

5. I have heard learned counsel for the appellants accused and the learned Public Prosecutor.

6. The learned counsel for the appellants-accused submitted that the only evidence, on the basis of which the appellants-accused were convicted and sentenced, Is recovery of ornaments of victim and identification thereto. He submitted that the said incident was stated to be taken place on 28.05.2010, whereas the FIR was lodged on 16.08.2010. Thus there was almost a delay of about 21/2 months, which creates great doubt about the prosecution story. The explanation of delay given by the prosecution witness was that she and her husband were trying to find out the whereabouts of the criminals who committed robbery, which is not plausible reason for lodging the FIR with such an inordinate delay. The learned trial court failed to consider this vital aspect of the matter. He further submitted that the complainant herself stated in the FIR that the accused were with covered faces, therefore, there arises no question to identify them, still the learned trial court believed that they were searching for the accused. The recovery witnesses Nagji (PW-6) and Vakta (PW-9) have turned hostile and admitted in cross-examination that they were asked by the police to put signatures on blank papers and as such, these witnesses cannot be relied upon on the sole testimony of Nirbhay Singh (PW-10) Investigating Officer. So far as Ex.P/3 is concerned, the same is to the effect that the accused verified the place of occurrence, which cannot be at all admissible In evidence as no new fact was discovered in pursuance of this information. The other evidence addu