R. S. SODHI, J. ( 1 ) CRIMINAL Appeal Nos. 147 of 2006 and 587 of 2006 seek to challenge the judgment and order of Additional Sessions Judge, Delhi, in sessions Case No. 16 of 2006, arising out of F. I. R. No. 18 of 2002, Police Station preet Vihar, whereby learned judge vide his judgment dated 7. 2. 2006 has held the appellants, namely, Jasmer Singh and Naresh, guilty for the offence punishable under Sections 302/460/394/397/34 IPC. Further vide his order dated 10. 2. 2006, he has sentenced the appellants to imprisonment for life for offence punishable under Section 302 IPC together with fine of Rs. 10,000/- each and in default of payment of fine, Simple Imprisonment for one year each. Both the appellants were sentenced to Rigorous Imprisonment for seven years with fine of rs. 5,000/- each under Section 394 read with Section 397 IPC and in default, simple Imprisonment for six months each. The appellants were further sentenced to Rigorous Imprisonment for seven years and fine of Rs. 5,000/- each under section 460 IPC and in default, Simple Imprisonment for six months each. All the sentences were directed to run concurrently. ( 2 ) BRIEF facts of the case as have been noted by learned Additional sessions Judge in his judgment under challenge are as follows :- "on 09. 01. 2002, at about 7. 30 p. m. , deceased Ujagar Singh, an eighty years old person returned to his house after a joy riding with his wife, in this own car. Hardly the couple had entered their house, misfortunes knocked at their doors. Wife asked her husband to attend the call. After the latter opened the gates, the former head him pulling "hai-Hai". Having hurried to spot, complainant saw her husband being bashed by two boys in their mid twenties. Both of them were wearing monkey caps in order to hoodwink. When complainant tried to intervene, one of them caught hold of her. On questioning, she was snubbed. They were demanding keys of house from her husband and reluctant to handover the keys, the latter was subjected to beatings by them. Espying the situation, complainant disclosed to plunderers that nothing was locked in their house and they were free to pick up anything they like, sparing only couple's life. On questioning, she was snubbed. They were demanding keys of house from her husband and reluctant to handover the keys, the latter was subjected to beatings by them. Espying the situation, complainant disclosed to plunderers that nothing was locked in their house and they were free to pick up anything they like, sparing only couple's life. The boy being confronted by the complainant, dragged the latter upto kitchen, tied her hands with her own shawl and also gagged her mouth with cloth. In between, phone started ringing and one of those boys called the other to chop the wire of it and pulled himself two rings from complainant's fingers and watch from her wrist. Thereafter, they left the house. Feeling the assailants having slipped away, the complainant unshackled her hands and then removed cloth from her mouth. She also shaked her husband to enliven the latter, but the same did not respond. The complainant approached one of their neighbours in the name of guptaji, who took Ujagar Singh to hospital. Till then, police also arrived at the scene and got complainant also admitted in S. M. Hospital. As per prosecution case, both of offenders were apprehended from their house, i. e. , D-322, Ganesh Nagar, Pandav Nagar, Delhi on an information, picked up from a secret informer. Accused persons disclosed their involvement in the crime during police custody. The accused Jasmer pointed out his house and got recovered one wrist watch having mark A and S 30 M light golden colour, wrapped in a cloth. Same was seized and sealed by the seal of SG. On the pointing of accused Naresh, one dagger was recovered. Same was seized and sealed in pullanda. Other finger ring, belonging to complainant thought to have been taken away by assailants, was recovered from complainant's house by the daughter of latter. Same was also seized and sealed by the police. The case property was identified by the complainant in a TIP before a Metropolitan Magistrate. Similarly, IO sought TIP of accused Naresh which was not joined by the latter. After completion of investigation, IO filed report under Section 173 Cr. P. C. charging both accused persons for offence punishable under Section 394/397/302/392/460/34 I. P. C. After hearing ld. APP for State and also ld. Similarly, IO sought TIP of accused Naresh which was not joined by the latter. After completion of investigation, IO filed report under Section 173 Cr. P. C. charging both accused persons for offence punishable under Section 394/397/302/392/460/34 I. P. C. After hearing ld. APP for State and also ld. counsels appearing on behalf of accused persons, both of accused persons were indicted for offences punishable under Section 460/34 I. P. C. as well as for offences punishable under Section 394/397 read with Section 302/34 I. P. C. Both of them were also charged separately for offence punishable under Section 412 I. P. C. , having found in possession of a wrist watch and a cordless phone respectively, being stolen in the commission of dacoity from the house of complainant. Both of accused persons pleaded not guilty and claimed trial, when formal charge was read over and explained to them. " ( 3 ) THE Prosecution in order to establish its case examined as many as 29 witnesses. Of these, PW-1 is Ramesh Kumar, D. J. S. , Delhi, who conducted t. I. P. proceedings and recorded statement of accused. PW-2, Constable sukhvinder, identified the cordless phone, Exhibit PW 2/a. PW-3, Dr. K. Goyal, conducted postmortem examination on the body of the deceased, Ujagar Singh and proved his report Exhibit PW 3/a. PW-4, Islamuddin, took photographs of the place of occurrence and proved photographs Exhibit PW 4/a to PW 4/h and their negatives Exhibit PW 4/j to PW 4/q. PW-5 is M. K. Nagpal, Metropolitan magistrate. PW-6, Joginder Kaur, wife of the deceased, is the star witness. PW-7, Dr. Sharad Gupta, proved the MLC, Exhibit PW 7/a. PW-9, Head Constable virender Singh, proved copy of F. I. R. , Exhibit PW 9/a and copy of DD Nos. 34-A and 30-A Exhibit PW 9/c and PW 9/d respectively. PW-10, Constable Suresh Kumar, photographer, proved photographs Exhibit PW 10/a to PW 10/h and their negatives, exhibit PW 10/a1 to PW 10/h1. PW-11, Sushil Gupta, is the neighbourer. PW-12, sarita Kohli, is the daughter of the deceased. PW-13, Prem Pal and PW-14, bihari Lal Thakur, are formal witnesses. PW-15, S. I. Sheoraj Singh, Finger print Expert, proved his report Exhibit PW 15/a. PW-16, Constable Virender singh, is a formal witness. PW-17 is Head Constable Vinod Kumar, who was working as MHC (M) in Police Station Preet Vihar. PW-12, sarita Kohli, is the daughter of the deceased. PW-13, Prem Pal and PW-14, bihari Lal Thakur, are formal witnesses. PW-15, S. I. Sheoraj Singh, Finger print Expert, proved his report Exhibit PW 15/a. PW-16, Constable Virender singh, is a formal witness. PW-17 is Head Constable Vinod Kumar, who was working as MHC (M) in Police Station Preet Vihar. PW-18, Head Constable Ramesh chand and PW-19, S. I. Sanjay Nerolia, went to P. S. Bissanda, District Pilibhit, and on pointing out of accused Naresh, recovered one cordless phone vide memo exhibit PW 2/a. PW-20, S. I. Sanjay Gupta, arrested both the accused vide memos exhibit PW 20/a and PW 20/b and conduced their personal search vide memos exhibit PW 20/c and PW 20/d. He is witness to the recovery of wrist watch at the instance of the appellant, Jasmer Singh, seized vide memo Exhibit PW 20/g. PW-21, Constable Bijender Singh, proved DD No. 63-B, Exhibit PW 21/a. PW-22, s. I. Mahesh Kumar, Draftsman, Crime Branch, prepared site plan of the spot, exhibit PW 22/a. PW-23 is S. I. Ram Avtar. PW-24 is S. I. Rajesh Kumar. PW-25, constable K. C. Gautam, is a formal witness. PW-26, Inspector Surender Kumar, recorded statement of PW-6, Joginder Kaur, Exhibit PW 6/a. PW-27, Constable sudhir Dutt, PW-28, Doctor Kaushal Kumar, R. M. O. , Shanti Mukund Hospital and PW-29, Dr. Gulam Asgar, Consultant Surgeon, Shanti Mukund Hospital, are formal witnesses. ( 4 ) LEARNED counsel for the appellant, Jasmer Singh, contends that the trial court did not appreciate the evidence on record correctly, but in a cryptic manner, has given far too much importance to the statement of PW-6, joginder Kaur, who at the first instance did not name any of the accused persons as the perpetrators of the crime. He submits that the so-called recovery made at the instance of the appellant, Jasmer Singh, of the wrist watch, has not been correctly identified and, in any case, mere identification of the wrist watch is not sufficient to hold the appellant guilty of the crime. ( 5 ) LEARNED counsel for the appellant, Naresh, submits that PW-6, joginder Kaur, at no point of time, claimed to be able to recognize the appellant, Naresh, as one of the persons who had committed the crime nor does pw-6 state that handset of the cordless phone was one of the stolen items. ( 5 ) LEARNED counsel for the appellant, Naresh, submits that PW-6, joginder Kaur, at no point of time, claimed to be able to recognize the appellant, Naresh, as one of the persons who had committed the crime nor does pw-6 state that handset of the cordless phone was one of the stolen items. Its alleged recovery from the appellant, Naresh, cannot be made a circumstance to hold the appellant guilty of the charge framed. In any event, the charge framed against the appellant, Naresh, is that the handset was recovered from him from a room of House No. D-322, Ganesh Nagar, Pandav Nagar, whereas the Prosecution has led no evidence of recovery from Pandav Nagar and has contradicted its case by leading evidence to the effect that the recoveries have been effected from bissanda, District Pilibhit, U. P. He claims that on the evidence adduced, he cannot be held guilty for the charge framed. ( 6 ) IN order to appreciate the case put up before us, it may be necessary to discuss the deposition of PW-6, Joginder Kaur, who is the star witness of the Prosecution. She states that in January, 2002, she was residing at C-191, Madhuban, Delhi, alongwith her family. On 9. 1. 2002 at about 7 or 7:30 p. m. , she alongwith her husband returned to their house. Thereafter, the witness went into the kitchen to boil milk while her husband went to the bedroom to change his clothes. Meanwhile, call bell rang and she asked her husband to open the door. Her husband opened the door and she heard strange noise. She went out of the kitchen towards her husband and saw that two persons were beating him at the entrance door. Out of those two persons, one boy was taller than the other. They were aged about 25 years. Out of them, one was Jasmer singh, who was the driver with her 2 or 2 " years ago. Both persons were wearing monkey cap at that time but during the scuffle, she pulled the monkey cap off the face of the appellant, Jasmer Singh, where after Jasmer Singh caught hold of her neck and pressed it. He also forced open her mouth and put something in her mouth which resulted in injuries to the mouth and blood oozed out. He also forced open her mouth and put something in her mouth which resulted in injuries to the mouth and blood oozed out. The witness states that she told the assailants that the victims were equal to their parents and whatever they wanted, they could take and let them live. The witness was threatened. Thereafter, Jasmer Singh took her to the kitchen, tied her hands and put a piece of cloth in her mouth. Her husband was dragged to the living room where the accused continued to beat him. Both the accused wanted the keys and this witness told them that the house was left open. In the meantime, the telephone rang and one of them told the other to cut off the wire. Thereafter, the assailants took her wrist watch and two gold rings which she was wearing at that time. The accused then left the spot and thereafter, the witness untied her hands and took out the cloth from her mouth. She then untied the hands of her husband and took out the cloth from his mouth. She tried to shake him but he did not speak. She called Guptaji, her neighbour, who came and took her husband to the hospital. The police came to the spot and the witness was removed to Shanti Mukund Hospital by the police. She identified the accused in court as the persons who had snatched the articles and beaten them. She identified her signatures on Exhibit PW 6/a and the articles in the court. On return from the hospital, she found the handset of the cordless phone was missing. The witness goes on to say that Jasmer Singh was her driver earlier and the other person accompanied him at the time of incident and participated in the crime. She identified her watch as also handset of the cordless phone. In cross-examination, the witness admits that she did not tell name of any of the accused persons to the doctor. Further, that she went to the police station when she came to know that the accused persons had been arrested by the police. She also admits that she has not stated in any of her statements before the police, namely, Exhibit PW 6/a and Exhibit PW 6/da that Jasmer Singh was wearing a monkey cap at the time of the incident. She also admits that she has not stated in any of her statements before the police, namely, Exhibit PW 6/a and Exhibit PW 6/da that Jasmer Singh was wearing a monkey cap at the time of the incident. She also admits that she did not tell the name of the assailant, Jasmer Singh, either to Sarita Kohli or to the police. She further admits that she did not name Jasmer Singh as the assailant till four months thereafter, that is, after the arrest of Jasmer singh. ( 7 ) ANALYZING the statement of this witness, we find that in Exhibit pw 6/a, the witness does not name any of the accused persons. The incident took place on 9. 1. 2002. The accused persons were arrested on 5. 4. 2002 and for the first time Jasmer Singh was named by PW-6 on 12. 4. 2002, even though, Jasmer singh, according to this witness, had been employed as their driver two years prior and also claimed to have been seen by this witness on the date of the incident during the scuffle. It is rather strange that the witness did not disclose the name of Jasmer Singh to either her daughter, the police nor the neighbour till Jasmer Singh was arrested. There is also nothing on record to show as to what led to the arrest of Jasmer Singh or Naresh, since no witness had named these persons and none of the witness is claimed to have given description that would fit the accused persons, yet the accused were taken into custody on 5. 4. 2002. Obviously, the identification of the accused persons by PW-6 in court would loose significance and cannot be relied upon to convict the accused. ( 8 ) WE find, in this case, there is no evidence on record prior to the statement made by PW-6 on 12. 4. 2002 to the effect that any of these accused persons were participants in the crime or to the incident of 9. 1. 2002. We also find that the prosecution has not placed on record any material to substantiate as to how the secret informer got this information that Jasmer Singh and Naresh are the perpetrators of the crime. 4. 2002 to the effect that any of these accused persons were participants in the crime or to the incident of 9. 1. 2002. We also find that the prosecution has not placed on record any material to substantiate as to how the secret informer got this information that Jasmer Singh and Naresh are the perpetrators of the crime. Mere recovery at the instance of appellant, jasmer Singh, of a wrist watch cannot lead to an inference that he was either present at the scene of crime or had participated therein. ( 9 ) A recovery allegedly at the instance of Naresh of a handset of a cordless phone is not sufficient to indicate that he was either present or a participant in the crime. Besides the testimony of PW-6, there is no other evidence which has been mustered by the Prosecution to nail Jasmer Singh and naresh. The testimony of PW-6 in so far as it seeks to identify Jasmer Singh and Naresh as the assailants is concerned, is not reliable. ( 10 ) COMING to the recoveries, a handset of the cordless phone is stated to have been recovered from the appellant, Naresh from U. P. but there is no document on record to show that this handset was, in fact, stolen from the house of the deceased, yet it is sought to be recovered from U. P. at the instance of the appellant, Naresh. The recovery of this article would loose all significance without any supporting material to show that the instrument was, in fact, found missing on 9. 1. 2002, the date of the occurrence. Even, PW-12, sarita Kohli, does not state that she had informed the police about the missing of the handset of the cordless phone. Therefore, it can safely be said that the handset appears to have been introduced only to rope in Naresh. ( 11 ) AS regards the recovery of watch, we find no description of the same given by PW-6 and, therefore, its identification by PW-6 inspires no confidence. We are deliberately not burdening this judgment with unnecessary facts and discussion of depositions of other witnesses, since the corner stone of the Prosecution hinges on the testimony of PW-6 and identification of the accused by PW-6 which, as has been noted above, does not inspire confidence. The Prosecution's case cannot be sustained. We are deliberately not burdening this judgment with unnecessary facts and discussion of depositions of other witnesses, since the corner stone of the Prosecution hinges on the testimony of PW-6 and identification of the accused by PW-6 which, as has been noted above, does not inspire confidence. The Prosecution's case cannot be sustained. ( 12 ) THE implicit reliance placed on the testimony of PW-6 by the trial court without proper analysis of contemporary material, we find to be faulty. Consequently, judgment under challenge dated 7. 2. 2006 and order on sentence dated 10. 2. 2006 cannot be sustained. It is, therefore, set aside and the appellants herein are acquitted of all the charges framed. Criminal Appeal nos. 147 of 2006 and 587 of 2006 are allowed. The appellant, Naresh, in criminal Appeal No. 587 of 2006, who is in jail, shall be set at liberty forthwith unless wanted in any other case. Bail bond of appellant, Jasmer singh, in Criminal Appeal No. 147 of 2006, who is on bail, is discharged.