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1. The State of Rajasthan has preferred D.B. Criminal Appeal No. 314/1981 against judgment dated 28-2-81, whereby the learned Sessions Judge, Alwar, acquitted accused respondents Satya Narain, Tribhuvan alias Kullar, and Nathu for offences under Sections 302 and 460, IPC, but convicted the accused for offence under Section 380, IPC and sentenced each one of them to undergo seven years' RI and a fine of Rs. 300/- in default, to further undergo RI for three months. The accused appellants, who are respondents in the State-appeal, have challenged their conviction and sentence for offence under Section 380, IPC, in their aforesaid appeals.

12. The accused were charged for offences under Sections 302, 460 & 380, IPC. They denied their indictment. To prove its case, the prosecution examined as many as 20 witnesses. The accused persons pleaded ignorance, denied the circumstances appearing against them in the prosecution evidence and asserted that in the early hours of 19-9-1979 they were taken to the police station Kishangarh Bas, where their finger prints were forcibly taken by the police on those articles. They also asserted that they neither volunteered any information nor got recovered any gold and silver ornaments and currency notes and that the places of the alleged recoveries of ornaments and currency notes were not in their exclusive possession because other members of their family also reside therein. They claimed that they have been falsely roped in this case due to animosity. However, they did not adduce any evidence in defence. After trial, the learned Sessions Judge found them guilty for offence under Section 380, IPC. He, however, acquitted them for offence under Section 302, IPC, read with Section 460, IPC. Hence these appeals.

13. We have heard the learned Public Prosecutor and the learned Advocates for the complainant and the accused persons at length and carefully perused the record of the lower Court in extenso.

14. Mr. R.S. Agrawal, the learned Public Prosecutor and Shri P.C. Jain, the learned counsel for the complainant submit that the learned trial Court has believed the prosecution version that the accused persons were seen near the house of Babulal in the night of 17-9-1979, that the house of Babulal was ransacked, that Smt. Kistoori and Kumari Sunita were murdered and that the cause of their death was strangulation. The chance prints which were found on Articles  40, 41, 43 and 44 tallied with specimen finger prints of the respective accused persons and that the stolen gold and silver ornaments and the currency notes, which were correctly identified by Babulal and other prosecution witnesses were recovered at the instance of the respective accused persons still then, the learned trial Judge has acquitted them for offences under Sections 302 and 460, IPC, ignoring provisions of Section 114, Illustration (a) of the Evidence Act and thus committed a grave illegality. They have contended that the facts of the case Hukam Singh v. State of Rajasthan relied on by the learned trial Judge are clearly distinguishable from the facts of the case at hand. According to them, the accusedrespondents have admittedly not claimed that the recovered gold and silver ornaments and the currency notes belonged to them, and that they have also failed to give any explanation as to how they came in possession of the said stolen property and in such circumstances, by the aid of presumptive evidence, it stands proved beyond reasonable doubt that the accused respondents were the persons, who had committed lurking house trespass on the fateful night, committed murders of Smt. Kistoori and Kumari Sunita and also dishonestly committed theft of the gold and silver ornaments and the currency notes, etc.

43. It may be mentioned here that besides possession of the property belonging to the deceased, there must be some other evidence to connect the accused with the murder which is lacking in this case. In our considered opinion, the learned trial Judge has not committed any illegality of fact of law in acquitting the accused persons for offences under Sections 460, and 302, IPC and in convicting them for offence under Section 380, IPC.

44. The learned Public Prosecutor has relied upon the decision in Dharam v. State of UP (1973 UJ (SC) p. 656), wherein legal position with respect to the power and the duty of the High Court while dealing with the State appeal against the judgment and order of the acquittal has been epitomised and it has been held that the jurisdiction of the High Court in dealing with appeal from the judgment of the acquittal is wide enough to empower the High Court to assess and apprise the evidence for itself and come to its own conclusion on the question of guilt or innocence of the accused persons, and that the statute places no limitation on this power, there being no distinction between an appeal from acquittal and on appeal from a conviction. It has been pointed out that if the Court on examining with care the evidence and the reasons for acquittal feels satisfied that the guilt of the accused is established beyond reasonable doubt, then it may be considered as much its duty to convict as it would be its duty to acquit if it entertains reasonable doubt about the guilt of the accused. The Apex Court has put the word of caution that the High Court has of course, to bear in mind when sifting and appraising the evidence, the initial presumption in favour of the innocence of the accused and the fact that he was acquitted by the trial Court and that the presumption of innocence has to be considered to be further strengthened to some extent by virtue of the order of acquittal and that then according to the obligation generally imposed on Courts of appeal, the High Court should dislodge the reasons on which the trial Court recorded the order of the acquittal. We respectfully agree with this dictum of law and we have scrupulously followed it while examining, scanning and appraising the evidence recorded in this case as also the reasons recorded by the trial Court for acquitting the accused persons for offence under Sections 460 and 302, IPC. In our considered opinion, the prosecution has miserably failed to successfully bring home offences under Sections 460 and 302, IPC, against any of the accused persons, beyond reasonable doubt. Therefore, the State appeal against acquittal for the said offences cannot succeed.