- (1.) THIS is an appeal against the acquittal of the respondents Banwari Godara, Ramrikh, Sahiram, Banwari Suthar and Budh Singh of offences under sec. 395 read with sec. 397 of the India Penal Code and sec. 450 of the Indian Penal Code by the Sessions Judge of Ganganagar.
(2.) THE case for the prosecution is that a dacoity took place at the house of Chet Ram, situate in Chak 58 L. N. P. on the 27th of November, 1955 at about 8 or 9 P. M. Mst. Chawli wife of Chetram was alone in the house, and Chetram had gone away from his house into the village in connection with some work. A first information report was orally lodged by Likhmichand son of Ghetram (who lived separately from his father) on the night between the 27th and 28th of November, at 2 a. m. at the police station Padampur which is at a distance of 23 miles from Chetram's village. THE Station House Officer Thana Padampur recorded this report Ex. P. 1 THE report made by Likhmichand was that some six or seven armed dacoits had raided his father's house in 58 L. N. P. at 7 p. m. on the previous evening, that they fired several shots and bear Mst. Chawli, his mother, in order to compel her to show the valuables. It was further stated that the dacoits continued the loot till about 8 p. m. and carried away cash and other property of the value of about ten to fifteen thousand rupees and also a 12 bore double barrel gun which was duly licensed. Likhmichand made it clear in this report that he was living separately from his father and, therefore, he was not in a position to give a full account of the looted property and that his father himself would give a detailed list, and he had been sent merely to lodge the report and, therefore, he prayed that necessary action be taken. On the 28th November. 1955 Chetram gave a list of the looted property Ex P. 2. to the investigating officer. THE police commenced the usual investigation, and among other things, which it is unnecessary to mention, recovered 11 fired 303 cartridges and 35 fired cartridges of 12 bore from the roof and angan of Chetram's house. As the culprits were obviously not known, the police could not lay their hands on them until the beginning of January, 1959. It was on the 8th January 1956 that P. W. 1 Lekhram, who subsequently became approver, voluntarily surrendered before the Deputy Superintendent of Police, Shri Man Singh, at Gangangar. THE case for the prosecution is that Lekhram disclosed all the facts to Shri Man Singh, and on the strength of the information thus furnished the police arrested the respondents Banwari Godara, Budh Singh, Sahiram and Banwari Suthar from their dhanis on that very day. THE respondent Ramrikh was arrested later in November, 1956. Certain recoveries are alleged to have been made at the instance of the accused person other than Ramrikh in between the period from the 9th of January 1956 upto the 20th January 1956, and the recovery of a khes was made from the house of Ram Rikh on 29th November, 1956. THE accused persons with the exception of one Maniram, who is alleged to be one of the dacoits and who is still at large, were eventually challaned and committed to the Court of the learned Sessions Judge, Ganganagar to stand their trial for offences under see. 395 read with sec. 397 of the India Penal Code and sec. 450 of the Indian Penal Code. THE learned Sessions Judge has acquitted all the accused and the State has come up to this Court in appeal. All the accused denied to have had anything to do with the offences with which they were charged. THEy also denied the recoveries alleged to have been made from them. So far as the currency notes recovered go, the accused claimed them to be their own. As for the firearms alleged to have been recovered from the accused, they completely denied these recoveries at their instance. Respondent Banwari Godara further alleged that there was enmity between him and the approver Lekhram,and there was intimacy between Lekhram and Chetram, and therefore, he had been implicated falsely. The prosecution produced 37 witnesses in support of its case. This evidence, broadly speaking, falls under the following heads - (1) The evidence of approver Lekhram P. W. 1. (2) Evidence relating to the recoveries of various stolen articles and certain firearms alleged to have been made at the instance of the respondents from the 9th of January 1956 to the 20th of January 1956. (3) The evidence relating to the identification of the accused persons. This mainly consists of the statements of P. W. 2 Hukma and P. W. 3 Rawta. (4) Evidence of the ballistic expert P. W. 27 Dr. Prannath Mehra showing that the fired cartridges Ex. 23 (E. C. 36 to E. G. 46) were fired from rifle Ex. 5 which was recovered from the accused Budh Singh, and that two cartridges E. C. 1 and E. C. 25 were fired from the 12 bore country-made pistol Ex. 6 recovered from the accused Sahi Ram, and that one cartridge Ex. 33 was fired from Ex. 1, another 12 bore country-made pistol which was recovered from Lekhram. Briefly summarised, the findings of the learned Sessions Judge on the aforesaid evidence are as follows - The evidence of approver Lekhram was highly suspicious, and he was intimately connected with one Bagdawat and was under the latter's influence, and this Bagdawat was on terms of considerable enmity with Banwari Godara and would, therefore, be naturally inimical towards Banwari Godara's friends or party men. As to the recoveries, the finding of the learned Judge was that they were also extremely suspicious. Almost all of them according to the learned judge had been made after considerable delay of the arrest of the accused persons on the 8th January and,therefore, there was ample opportunity for manipulating them and so the recoveries could not be of any value in the circumstances of the case. As regards the evidence of identification, the learned Judge found that it was not satisfactory,being discrepant, and that the Circle Inspector Laxminarain himself had admitted that the accused (of course with the exception of Ramrikh) after they were arrested on the 8th January, 1956, had been taken to the Dhani of Banwari Godara on the 9th January, 1956, and therefore, there was ample opportunity for the witnesses to See these accused persons on the 9th January, 1956. Besides, P. W. Hukma had made three mistakes at the time the identification parade was held on the 11th of January 1956 having identified three persons no wrongly; and so far as the other witness P. W. Rawta was concerned,he bad himself admitted that his eye-sight was defective and that he could see only with one eye, and it is difficult to believe that he was in a position to see the accused persons, whom he identified, at the time he did, particularly when the visibility was not good at the time of sunset. The learned Judge was, therefore, of opinion that it would be extremely risky to rely on this kind of identification evidence. As to the evidence of the ballistic expert, Dr. Prannath Mehra, the finding of the learned Judge was that "his evidence per se was not sufficient to connect the accused with the crime of dacoity. It is just possible that some other man might have committed the dacoity at the house of Chetram and may have fired with these firearms. So his evidence under the present circumstances is not of much consequence in connecting the accused with this crime. " It has been strenuously urged before us in this appeal on behalf of the State that the learned Sessions Judge has not read or weighed the evidence of the approver and the corroborative evidence of the other witnesses properly, and that consequently, a grave miscarriage of justice has occurred. It is also urged that the recovery of the various articles of stolen property from the possession of the various respondents within a short time of the dacoity was a strong circumstance against the accused, and the learned trial Judge had fallen into a serious error in not giving it the importance and weight which it deserved. I shall first consider the evidence of the approver P. W. 1, Lekhram, and see how far it is worthy of credence. Lekhram has given a very detailed and elaborate account of how the crime, with which we are concerned in this case, was planned and eventually perpetrated. I have carefully examined his evidence and I cannot help stating that he has given a wealth of detail in his evidence which it is impossible to miss, though his evidence is naturally tainted and attended with grave suspicion. Now, before I proceed further, I should like to say that I have fully in mind the principles which apply to the evidence of an approver. These principles may be succinctly stated as follows. An approver is undoubtedly a competent witness under our Evidence Act, and even his uncorroborated evidence is perfectly admissible and capable of sustaining a conviction in law. It is however well established as a rule of practice, which almost amounts to a rule of law, that the court must be fully cognisant of the danger of convicting a person on the uncorroborated testimony of an accomplice. The reason for this is obvious, and that is that the approver is a tainted witness on his own showing. His evidence, therefore, must satisfy a double test. In the first place, it should be seen whether he is a reliable witness. In the second place, it should further be seen whether his evidence is corroborated in material particulars by other independent evidence. The rule of independent corroboration, however, does not mean that there must be corroboration of every material fact, for if that were so, the evidence of the approver would be entirely unnecessary. What is required is that there must be additional evidence rendering it probable that the story related by him is true both as respects the occurrence which he comes forward to testify to and as to the participation of each of the accused in the crime. Again, it is well established that corroboration need not always be in the shape of direct evidence, but it is sufficient if it gives circumstantial support to the connection of the crime with the accused. (See Rameshwar s/o Kalyan Singh vs. The State of Rajasthan (1), Sarwan Singh Rattan Singh vs. State of Punjab (2), The State of Bihar vs. Basawan Singh (3 ). Judging the evidence of Lekhram in the light of the principles set out above, what I desire to say is that although I am not prepared to reject the testimony of the approver as being entirely unworthy of credence, I should require corroboration of it in the shape of independent material evidence before acting upon it. Now the learned Sessions Judge, does not appear to me to have read the approver's statement properly when he states in his judgment that the approver did not suggest the name of Chetram complainant as the person whose house might be raided. Properly read, this part of the deposition of Lekhram clearly suggests to my mind that he had suggested the name of Chetram, though he does not directly say so, and when the accused Banwari Godara asked him to point out Chetram's house to Budh Singh accused, as I read the statement, he only did so after the house of Chetram had been suggested by the approver. It may also be pointed out here that after all, there was nothing strange in this because complainant Chetram lived only about a mile away from the approver Lekhram's house, and Banwari Godara and others might not have known him or his financial position. The learned Sessions Judge also appears to me to have gone wrong when he say that there is no independent corroboration of the story of planning of this dacoity related by him. It the very nature of the circumstances of a case like the present, such corroboration would not be easily forthcoming and cannot rightly be insisted upon. I, therefore, see nothing in this criticism of the learned Judge to reject the story of the approver out of hand. Again, it is true that Bagdawat of Gunjal is an enemy of Banwari Godara accused, and it is also true that Bagdawat seems to have taken a good deal of interest in this case. But that by itself cannot be a satisfactory reason for discarding outright the evidence of the approver because it may be that the case against this accused is a true one, and it cannot be adversely affected for the mere reason that Bagdawat has helped in its unfoldment. Similarly, we have it from the approver that there was an altercation between him and Banwari Godara in connection with the sale by him of a house to Godara and a quarrel arose between them during the course of which Godara gave him abuses and the approver gave a few slaps to Godara. This was, however, a minor quarrel and cannot be accepted as an adequate reason for holding that Lekhram would be prepared to implicate Banwari Godara in a serious crime like this without any rhyme or reason. I am also not impressed by the criticism of the learned Judge that the testimony of the approver should be entirely rejected because he was not a man of conscience, and that if he was one, he should not have agreed to take part in the commission of the dacoity. The answer to this criticism, to my mind, is that an approver is always a person who has himself participated in a crime, and if on that account alone his evidence is to be rejected, then there would be no sense in the legislature enacting the provision that an approver is a competent witness, and that it would be possible as a matter of law to convict a person even on his uncorroborated testimony, though it is true that a salutary rule of practice requires that while so acting the court must be fully cognisant of the danger of doing so and yet prepared to convict even in the absence of corroboration. Yet another reason which seems to have prevailed with the learned trial Judge in coming to the conclusion that Lekhram approver was not among the six dacoits who committed the dacoity in the house of Chetram is that on Lekhram's own showing he had been known to Chetram and his wife for the last 12 or 13 years and that he was on visiting terms with them, and yet neither Chetram nor his wife Mt. Chawli were able to recognise him at the time of the commission of the dacoity at their house. I have carefully examined this criticism and am of the opinion that perhaps the learned Sessions Judge has made too much of it. There is evidence to show on the side of the prosecution, apart from that of the approver Lekhram himself, that the latter was known to Chetram and his wife Mt. Chawli for sometime (See the evidence of P. W. 12 Mamraj and P. W. 2 Hukma in this connection ). Now it was not the case of the prosecution at ail that Chetram was at his house when this dacoity was committed, and, therefore, the learned Judge was quite wrong in his criticism that Chetram should have identified Lekhram if he was there at the time of the commission of the dacoity. So far as Mt. Chawli is concerned, she is an old woman, about 60 years of age and of weak sight and must have been thoroughly confused at the time and in all likelihood had lost her wits when confronted with the predicament to which she was put to. It may also be pointed out in this connection that Mst. Chawli was not able to identify Lekhram or any of the accused even at the identification parade. We also have it from the approver that he was taking good care not to go too near her lest she might recognise him. In this state of affairs, the circumstance that Mst Chawli was not able to recognise the approver on the spot cannot be accepted as a valid ground for holding that he was not at all on the spot. What I fail to understand is that if the approver had not participated in this dacoity, why should he have run the risk of owning up this crime, and involved himself into obvious difficulties. The accused had surrendered himself on the 8th of January 1956 and had been arrested on the same date. He gave discovery of certain articles which were recovered from his house later on the 16th January, 1956. It was certainly a few days thereafter that he was made approver. It therefore does not stand to reason that he should have implicated himself merely to oblige Bagdawat who was undoubtedly the enemy of Banwari Godara. For the chances were that he might not have been granted pardon at all. I have, therefore, come to the conclusion that it would not be right to reject the story of the approver as being of a person who had not participated in this dacoity at all. Weighing all the pros and cons of the case, I am satisfied that, in all reasonable probability, he was one of the persons involved in this crime, though I am absolutely clear in my mind that he is not a witness whose evidence should be accepted by the court at its face value and without there being independent corroboration of the material facts related by him, in the shape of other cogent evidence. Let us now see whether there is independent corroboration of the story related by the approver and how far it affects each of the respondents. There is no doubt that a dacoity was committed at the house of Chetram on the night of the 27th of November, 1955. At this dacoity currency notes worth several thousands of rupees were stolen away and further a 12 bore double barrel gun belonging to Chetram was taken away and also a bandolier containing a number of live cartridges among certain other articles like silver ornaments which need not be specifically mentioned for the purposes of this appeal. We have it from the approver Lekhram that this gun was kept by Banwari Godara. This fact finds strong corroboration from Ex. P. 1, the first information report which was filed soon after the incident had taken place, and wherein it was mentioned that a 12 bore double barrel gun belonging to Chetram had been taken by the dacoits, When the Investigating Officer reached the spot immediately after the receipt of this report, a list of the stolen property was handed over to him and this is Ex. P. 2. In this list it was mentioned among other articles that a double barrel 12 bore gun had been taken away by the dacoits and that the name of Chetram was engraved on it. It is in evidence that a gun was recovered from Banwari Godara on the 9th of January, 1956 from his house and at his instance on which clearly appears the name of Chetram in the following words: - "chetram vald Chenaram Kumhar Chak 58 N. L. P. Tehsil Padampur State Bikaner. " The approach of the learned Sessions Judge to this aspect of the case does not appear to me to be correct because he appears to have been carried away by the circumstance that a further recovery is alleged to have been made from Banwari Godara relating to currency notes of the value of Rs. 1000/- on the 19th January, 1956, and the learned Judge felt it difficult to understand why the currency notes were not given discovery of on that very day. The recovery of the currency notes on the 19th January, 1956 may not be accepted as a proper recovery, but that would be no reason for rejecting the recovery made on the very next day of the arrest of Banwari Godara of the recovery of the gun from his house, provided of course it is otherwise not questionable. The Learned Judge was also not prepared to accept that Banwari Godara would keep the gun in his own house, a gun which bore the name of the complainant Chetram. There is no force, however, in this criticism because Banwari Godara may not have known, being an illiterate person, that the gun had engraved on it Chetram's name. The recovery of the gun from the house of the accused Banwari Godara seems to me to be a perfectly good corroboration of the story related by the approver. There is also evidence to show that a double barrel gun manufactured by Stevens was registered in the name of Chetram resident of 58 L. N. P. Tehsil Padampur District Ganganagar on 16. 8. 1955 under licence No. 1014. P. W. 36 Hariram, a clerk in the office of the District Magistrate Ganganagar and who was incharge of the licensing of arms and ammunition work has stated this, and he further stated that Ex. 4 was the very gun in respect of which the said licence Ex. P. 50 had been issued by him. The approver further stated that during the course of the dacoity, Mst. Chawli had been beaten a number of times, by Budh Singh and others. This part of his evidence also receives corroboration from the evidence of Mst. Chawli P. W. 6 herself supported by the evidence of Dr. Jogendra Singh P. W. 4. According to the testimony of this doctor, Mst. Chawli had six injuries on her persons and these injuries seem to me in perfect accord with the story related by her that she had been given slaps on her face and was dragged. The criticism of learned counsel for the accused that the manner in which Mst. Chawli states to have been beaten by the various accused is not of the same description as that given by Lekhram is, in my opinion, too technical to be taken notice of. Yet another piece of corn boration of the story related by Lekhram to the effect that Mst. Chawli had physically protested against the carrying away of the gun by some of the dacoits is furnished in the deposition of Mst. Chawli, where she clearly states that when one of the dacoits laid his hands on her husband's gun and was going out with it, she left her cup of tea and tried to seize the gun. Then her story is that she was beaten and the dacoits had asked her to show the money and other valuables lying in the house and she told them not to beat her as she would show where the money was lying. The approver has told us that Mst. Chawli had told them that there were currency notes inside the beddings which were lying on a cot and then they searched the beddings and found currency notes therein. This is also the story that Mst. Chawli has deposed to, though the actual amount of the currency notes found differs. But this, in my opinion, is entirely immaterial. Mst. Chawli has also told us that she was wearing a silver Hansli and Chhainlkaras and a silver Bor, and the dacoits took them away. This also affords material corroboration of the story related by the approver. I should like to repeat once again that so far as the story of the planning of this dacoity as related by the approver goes, it would be going too far to expect any independent corroboration of it to be forthcoming. Thus on a careful reading of the evidence of this witness, I find nothing inherently improbable about that story, and see no valid reason to reject it on that account. The conclusion, therefore, at which I arrive is that the broad story related by the approver does receive material corroboration from other independent evidence on the record in several important respects, and there seems to me to be no cogent reason for rejecting the story in so far as it is supported by independent evidence in corroboration of it. As I have already stated above, the corroboration must be not merely with respect to the perpetration of the crime, but it must also be with respect to each of the accused who are alleged to be involved in it.
(3.) IT is urged by the learned Deputy Government Advocate that such corroboration is available in the present case with respect to each of the accused, as recoveries were made at their instance as mentioned below. IT is said that one 12 bore gun Ex. 4 belong ing to Chetram and with his name engraved on it was found in Banwari Godara's house on the 9th of January 1956 at his instance, (vide Exs. 13 and 14 ). IT is further contended that this accused gave discovery of currency notes amounting to Rs. 1000/-which were also found at a place near his house and were recovered on the 19th of January 1956, ten days after the first recovery was made (vide Exs. 27 and 28 ). Similarly, it is contended in connection with the accused Sahiram that a 12 bore pistol and cash amounting to Rs. 711/- were recovered from his house and at his instance on the 15th January, 1956 (vide Exs. 15 and 16 ). So also a 303 rifle was recovered from the roof of Budh Singh's house at his instance on the 15th January, 1956 (vide Exs. 17 and 18 ). A further recovery is also alleged to have been made from Budh Singh's house of currency notes of the value of Rs. 440/- and a khes bearing the name of Chetram complainant and a piece of silver Chhailkara. This discovery was given on the 20th of January, 1956. Similarly, it is contended that a bandolier containing cartridges and a khes bearing Chetram's name on it and currency notes worth Rs. 1000/- were recovered from Banwari Suthar's house at his instance on the 20th January, 1956 (vide Exs. 21 and 22 ). So far as the accused Ramrikh is concerned, the only article which is said to have been recovered from him is a khes (vide Exs. 33 and 34 ). Apart altogether from the criticism that currency notes were unidentifiable and their recovery is of no consequence. The learned trial Judge has held these recoveries to be of a highly suspicious character principally on the ground that they were made a long time after the accused were arrested on the 8th of January, 1956. I have carefully examined the question of the weight which should be attached to the recoveries mentioned above, and I cannot help stating that the investigating officer acted in a clearly unintelligent manner when he failed to search the houses of these accused in almost all cases (except that of Banwari Godara, immediately after they had been arrested. The criticism of the learned Session Judge in this connection is not without force and I am not prepared for the reasons, which the learned Sessions Judge has given in his judgment and which I need not repeat here, that the recoveries made from the accused Budh Singh, Banwari Suthar, Sahiram and Ramrikh do not inspire much confidence. If these recoveries had been made on the 8th or 9th January 1956, they would have afforded fairly good corroboration of the statement of the approver, but as that was not done, I see no compelling reasons to take a different view from that taken by the learned Sessions Judge so far as these accused are concerned. The case of the recovery of the gun (Ex. 4) however from the house of Banwari Godara, in my opinion, clearly stands on an entirely different footing. IT is true that even the house of this accused was searched not on the 8th January 1956 but on the 9th January. But that, in my opinion may be due to good reasons, and one such reason which has given by the investigating officer is that he was anxious to arrest all the accused at once rather than to spend time in making the searches also on the 8th on which date all the accused were actually arrested. This reason cannot be said to be wrong. The recovery of the gun from Banwari Godara's house was thus made on the 9th January, 1956 (vide Exs. 13 and 14 ). As already stated above, the first information report clearly mentioned that a 12 bore double barrel gun of Chetram had been taken away by the dacoits. This fact was further mentioned in Ex. P. 2 which was the list of the stolen articles given by the complainant Chetram to the investigating officer as soon as he came on the spot. A contention was raised at the bar that this list was not admissible because it was a statement made by the complainant to a police officer during the course of investigation and was hit by sec. 162 of the Code of Criminal Procedure. This argument, in my opinion, has no force. The question whether this list is hit by sec. 162 of the Criminal Procedure Code depends upon whether the investigation had commenced before this list was handed over to the investigating officer. I am clearly of the view that the investigation in this case had not begun until the Sub-inspector Police Station Padampur arrived on the spot on the receipt of the first information report Ex. P. l. In this report, P. W. Likhmichand son of the complainant had clearly stated that he was living separately from his father, and that a detailed list of the stolen property would be given by his father who naturally was alone aware of the details of the looted property. I therefore, hold that the list given by Chetram (vide Ex. 2) of the stolen property was really part of the first information report and is legally admissible in evidence. The view taken by me finds full support from a Bench decision of this Court in Sanwalia vs. The State (4 ). Now what is very important in this connection is that in the list Ex. P. 2 (and there is nothing on this record to doubt the authenticity of this list) it was clearly given out by Chetram that his name was engraved on the 12 bore double barrel gun which had been taken away by the dacoits. The gun Ex. 4 recovered from Banwari Godara's house does bear Chetram's name. IT also gives the description of Chetram as son of Chenaram of Chak 58 L. N. P. , Tehsil Padampur State Bikaner. That Chetram held licence for this very gun is proved by the evidence of Hariram P. W. 36. This recovery has been proved by the evidence of the investigating officer Laxminarain P. W. 31 and of Hemaram P. W. 9. The evidence of Hemaram is that the accused took out the gun Ex. 4 from a bundle of clothes which were lying on a cot and handed over to the police. The witness also stated that the name of Chetram son of Chenaram Kumhar was engraved on it. I see no cogent reason to disbelieve the evidence of this witness. As already stated above, the recovery was made as early as 9th January, 1956. The accused had been arrested on the previous day. I have no hesitation in saying that the learned Sessions Judge fell into a serious error resulting in miscarriage of justice when he failed to give the circumstances of this recovery their due attention and weight. In this view of the matter, I hold that so far as the recoveries are concerned, the evidence of the approver receives the necessary corroboration in the case of the accused Banwari Godara only, but they do not afford reliable corroboration so far as the other accused are concerned. It only remains now to consider briefly the evidence of the ballistic expert Dr. Pran Nath Mehra P. W. 27. It may be pointed out that in all four fire arms together with some fired cartridges were recovered in this case. The 12 bore double barrel gun belonging to Chetram (Ex. 4) was recovered from Banwari Godara's house. This was, however, not sent to the expert as there was no satisfactory evidence that this gun had in fact been used during the commission of the dacoity. Then a 303 rifle No. 3263 was recovered from the house of accused Budh Singh on the 15th January, 1956. It may be mentioned here that 11 fired cartridges of 303 calibre marked as Ex. 23 (being E. G. 36 to E. C. 46) were alleged to have been recovered by the investigating officer on the spot on the 20 January, 1956. The evidence of Dr. Prannath Mehra is that these cartridges were fired from the rifle Ex. 5. Then, a 12 bore country made pistol Ex. 6 was recovered from Sahiram on the 15th January, 1956. In this connection, it is necessary to mention that 35, 12 bore fired cartridges (E. C. 1 to E. G. 35) marked Ex. 22 are also alleged to have been recovered by the investigating officer in the Angan and the roof of Chetram's house. In addition, 3 fired cartridges of 12 bore were also found by the police at a short distance away from the place of the incident and these are E. C. 47 to E. C. 49. The evidence of the expert is that E. G. 1 and E. G. 25 were fired from the pistol Ex. 6 which is alleged to have been recovered from Sahiram on the 15th January 1956. A 12 bore country-made pistol Ex. 1 is also said to have been recovered from the approver Lekhram. According to the expert, the fired cartridge Ex. 33 (being E. C. 48) was fired from this fire-arm. As regards the remaining cartridges, the opinion of the expert was that they had not been fired from any of the pistols Ex. 1 and 6 under examination. Dr. Mehra has mentioned that his reasons for arriving at the conclusion to which he came were that there are individual characteristics on the striking pin and breech-face of every fire-arm, and when a cartridge is fired from that fire-arm, a pressure of 2 to 20 tons per square inch is produced in the fired cartridge, and as a result of this pressure, the fired cartridge recoils back with great force on the striking pin and the breech-face, and as the cap of the cartridge is made of much softer metal compared with the steel of the firearm, the individual characteristics of the striking pin and the breech face are printed on the cap of the fired cartridge. The opinion of the expert, therefore, was that all the cartridges which are fired from one fire-arm will bear similar marks on their caps. He further deposed that he fired 3 cartridges from the rifle Ex. 5 which are marked by him as T. C. 5, T. C. 6 and T. G. 8. (vide Ex. 34) and he fired 2 cartridges from the pistol Ex. 6 which are marked as T. C. 1 and T. C. 2 (vide Ex. 35) and he further fired 3 cartridge from the pistol Ex. 1 and there are marked as T. C. 3, T. C. 4, T. C. 7 (vide Ex. 32), and the individual characteristics of the striking pin and the breech face caused on the test cartridges were microscopically compared by him with the characteristics produced on the fired cartridges sent to him for examination and as the individual characteristics of the test cartridges and the fired cartridges were the same in certain cases, he came to the conclusion which has already been mentioned above. This witness also stated that he had received the fire-arms as well as the fired cartridges referred to above in a sealed bundle through a constable and that so long as they remained in his custody, no tempering had taken place. Now there is no cross-examination worth the name of the evidence of Dr. Mehra and his evidence would have afforded excellent circumstantial corroboration of the story related by approver Lekhram so far as the accused Budh Singh and Sahiram are concerned, because the rifle Ex. 5 and the country made pistol Ex. 6 are alleged to have been recovered from Budh Singh and Sahiram respectively, provided some other difficulties should not have arisen in the way. A serious difficulty has however arisen owing to inefficiency on the part of those concerned inasmuch as there is no evidence on the record to show that the fired cartridges recovered from the spot were the same which were sent to the fire-arms expert, and that they were kept intact and were not tempered with while they were in the custody of the police until they were sent to the fire-arms expert. In this connection I desire to take this opportunity of pointing out that whenever fire-arms or fired cartridges are recovered during the course of investigation, the investigation officer should not only make a list of them, but see that they are properly sealed. It is also desirable that the sealed covers should be signed by the Motbirs who have witnessed the recovery. There must be further satisfactory evidence on the record to show that these seals remained intact until the articles were sent to the ballistic expert and that the recovered articles were not tempered with while in the custody of the police. Finally, there must be evidence from the side of the ballistic expert to show that the articles sent to him had not been tempered with while they were in his custody. Now, so far as the last requirement is concerned, it is undoubtedly available in this case. The investigating officer has also deposed that he had put the fired cartridges which were recovered on the spot in a piece of cloth and sealed it, vide Exhibit 4. There is nothing to show, however, that any of the Motbirs had signed this bundle There is nothing also to show further that these seals remained intact until the articles were despatched to the ballistic expert. All that we have, there fore is that the fired cartridges were sealed by the investigating officer at the one end, and there is the evidence of the ballistic expert that the articles which were received by him under seal had not been tampered with while they were in his charge. It is contended on behalf of the accused that there is no guarantee that the police might not have changed the seals after the recoveries of the fire-arms were made, and certain other cartridges fired from those very weapons might have been introduced into the case. Although I do not say that this was actually done in the present case, still the contention raised on behalf of the accused cannot be cogently answered, and a doubt is always likely to remain, and the benefit of that doubt cannot but go to the accused. In this state of circumstances. I am constrained to come to the conclusion that the evidence of the ballistic expert Dr. Prannath Mehra loses much of its force as the very foundation upon which such evidence is necessarily based remains insecure. I hold accordingly. The result of the aforesaid discussion is that the case against the accused Banwari Godara is proved beyond all reasonable doubt and the learned Sessions Judge was quite wrong in acquitting him. I accordingly allow this appeal in part, set aside the acquittal of the accused Banwari Godara and convict him under sec. 392 read with sec. 397 of the Indian Penal Code (as I am not sure as to whether the number of persons who took part in this crime was five or less than that number) and sentence him to ten years' rigorous imprisonment. I also convict him under sec. 451 of the Indian Penal Code and sentence him to three years' rigorous imprisonment on that count. Both the sentences shall run concurrently. The appeal against the remaining accused is dissmissed .;