J U D G E M E N T

Reserved on 05/12/2022 Pronounced on 21/12/2022 Appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short 'the Code') against the judgment dated 29.01.2000 passed by Special Judge, SC/ST (P.A.) Act, Indore Special. S.T. No.125/1999, whereby the learned trial Court has convicted and acquitted as under:

2. The Prosecution story in brief is that on 18.01.1999, in the night at about 23:35PM, the complainant namely Khansari has informed the police station Kotwali that he was coming through the wall behind the animal hospital, he seen five persons armed with the weapons and they were collected for the purpose of committing dacoity. The information was registered by S.I. Sukhpal Singh vide Rojnamcha Sanha No.824 vide Ex.p/17 and informed the same to the police Station M.G. Road, telephoncally. Thereafter, the police party after following the due procedure, raided the place as informed by Khansari, the accused persons after seeing the police tried to fled away from the spot, but the police arrested the accused persons and recovered a country made pistol from Dilip alongwith five live cartridges, a bamboo stick from appellant Mukam Singh, chilly power from appellant Chander Singh, an iron rode from appellant no.4 Ramesh and a knife from appellant no.5. The police party, after following due procedure, arrested the accused persons and registered the case against the appellants. After due investigation, charge-

sheet was filed against the appellants/accused persons

3. Appellants was charged for offence under Section Section 399 and 402 of I.P.C. They abjured their guilt and took a plea that they have been falsely implicated in the present crime and prays for trial.

4. In support of the case of prosecution, the prosecution has examined as many as 05 witnesses namely Khansari (PW-1), Makrand Singh (PW- 2), Umashankar Tripathi (PW-3), William Toppo (PW-4), Sukhpal Singh Yadav (PW-5) & Ramesh (PW-6)

5. It is the defence of the appellants that they have already taken into custody by the police of Police Station M.G. Road, Indore on 17.01.1999. In their defence, the appellants have examined Ramesh S/o Shankarlal (DW-1), 6. Learned trial Court, on appreciation of the evidence adduced by the parties, pronounced the impugned judgment on 29.01.2000 and finally concluded the case and convicted the appellants, as stated above.

7. Learned counsel for the appellants submits that the the appellants are innocent and the learned trial Court has convicted the appellants wrongly without considering the evidence available on record. It is further submitted that PW-1 Khansari in his statements nowhere stated that the appellants discussing commission of any offence. None of including other witness including the investigating officer and William Toppo (PW-4) stated in their testimonies before the learned trial Court of having heard the appellants planning any offence let alone a decoity. It is further submitted that the learned trial Court has failed to consider the material contradictions and omissions of prosecution witnesses. The prosecution has failed to rebut the statement of DW-1 Ramesh in his chief examination and thus, the unchallenged testimony of DW-1 Ramesh could be believed and this was enough to raise more than reasonable doubt over the prosecution story and the sequence of even