RAY, J.


This appeal by special leave is against the judgment and order passed on 9-12-1977 in Criminal Appeal No. 360 of 1976 by the High Court of Andhra Pradesh dismissing the appeal


2. The prosecution case, in short, is that the deceased Yasodamma who had been divorced by her husband soon after marriage due to some misunderstanding, was living with her mother Rathnamma at Tadikonda in Guntur District. She inherited 50 acres of land in Ibrahimpatnam of Krishna District from her father and she also inherited 40 acres of land at Tadikonda from her maternal grandfather. Her mother started a High School in the name of her father and donated a sum of Rs. 60, 000/- to the said School. The deceased also started an Oriental College and donated money to the said College. She also established an elementary school in the name of her father Mallela Venkata Subbaiah and nominated P.W. 18 as its Correspondent and Secretary. The deceased was a wealthy lady


3. In 1972, appellant No. 1(A-1) who was living at Chataparru in West Godavari District due to some difference with his wife approached the deceased, her paternal aunt and sought permission to stay at her house and to assist her in the management of her affairs. With the permission of the deceased, A-1 started residing in her house at Tadikonda since 1972 and endeared himself very much to the deceased who cancelled the will executed by her on October 25, 1967 bequeathing all her properties to the educational institutions and registered a will dated December 22, 1973 whereby she bequeathed all her properties to A-1 after her death. Some time after the execution of the said will A-1 and Appellant No. 2(A-2) who is the son of A-1, were not conducting themselves in the manner expected by the deceased. In 1975, the deceased developed dissatisfaction towards A-1 and A-2 and she was contemplating to cancel the will executed in favour of A1. Ultimately, on August 23, 1975 the deceased called Nagabhushanam (P.W. 10) at her house and dictated a will giving all her properties to the educational institutions except giving 5.09 cent of land to A-1, cancelling the will dated December 22, 1973. The will was attested by P.W. 10, 11 and 15. It was presented before Mr. K. Venkataratnam Chowdary, Advocate and Notary (P.W. 6) who copied the same in his register and after being satisfied about its due execution by the deceased and the attestors, made an endorsement on the back of the will and obtained the signatures of the deceased in the Notary Registrar and also under endorsement made by him


4. It is the prosecution case that A-1 was observing all that was taking place and he was conniving with his son, A-2 to do away with the deceased so that the deceased could not be able to cancel the will executed in his favour. On August 24, 1975, A-2 engaged an auto-rickshaw of Inkellu Nageswararao of Guntur (P.W. 13) and reached the bus stand at Tadikonda at about 8 a.m. and after leaving the auto-rickshaw there he went on foot to the house of the deceased. A-1 and A-2 were the only persons who stayed in the house at that night. A-2 left the house of the deceased at about 2 a.m. on August 25, 1975 in the auto-rickshaw of P.W. 13. On August 25, 1975 at about 3.30 a.m. A-1 went to the houses of neighbours, P.W. 6 to P.W. 9 and intimated them that two strangers forcibly broke open the door and after threatening them by showing knives took the keys of the iron-chest from the deceased. They, thereafter, unlocked the iron-chest and removed cash and gold jewels from there and while going away, they stabbed the deceased to death. P.W. 6 informed the Tadikonda police station by telephone about this murder. The Station Writer at about 5.30 a.m. went to the house of the Sub-Inspector, P.W. 30 and intimated him about the murder of the deceased. P.W. 30 came to the police station immediately thereafter and was about to proceed to the house of deceased when A-1 appeared before him and presented a report (Ex. P. 66). On receiving the report, P.W. 30 started writing the F.I.R. As he had some doubts, he wanted to enquire from A-1 some clarifications but A-1 had already left the police station. He sent P.W. 26, constable to bring the complainant, A-1. P.W. 30 registered crime No. 62/75 on the basis of Ex. P. 66 and sent intimation to the Inspector of Police, Guntur (P.W. 31). P.W. 30 and P.W. 31 thereafter went to the house of the deceased. P.W. 26 brought A-1 with him to the house of the deceased at about 8 a.m. P.W. 31 arrested A-1 and interrogated him in the presence of P.W. 11 and Dada Krishnamurthy (P.W. 29). At thereupon produced 27 hundred rupees notes (M.O. 5) and a gold chain of two rows with black beads and red locket (M.O. 1) after removing them from near his waist. P.W. 31 seized M.Os. 1 and 5 under the mediators' report (Ex. P. 15). It is also alleged that P.W. 31 opened the iron-safe which was in the Northern room behind the central hall in the presence of P.W. 29 and another and seized Rs. 2870/- (M.O. 24) and some gold jewels and seized them under the mediators' report (Ex. P. 65)


5. On getting information from K. G. Paul, the D.S.I., Lalapet (P.W. 30) that A-2 pledged a gold chandraharam with B. Sambasivarao of Guntur (P.W. 26) on the morning of August 25, 1975, P.W. 31 visited the shop of P.W. 28 at about 6 p.m. on August 26, 1975. He examined the counter-foil book (Ex. P. 64) maintained in his shop and waited there till about 7.30 p.m. when A-2 came. On seeing police party, A-2 tried to run away but he was caught and arrested. P.W. 31 recovered from the pocket of his bush shirt the Pawn chit (M.O. 18), 20 hundred rupees notes (M.O. 17) and 104 hundred rupees notes (M.O. 16) and a gold chain (M.O. 2) in the presence of T. Sambi Reddy (P.W. 22) and another. P.W. 31 then seized chandraharam (M.O. 15) from P.W. 28 under the mediators' report (Ex. P. 32) in the presence of P.W. 22 and another


6. The accused A-1 and A-2 were charged under Section 302 read with 34 of Indian Penal Code. A-1 was further charged under Section 404, I.P.C. and Section 201 and 182 I.P.C. A-2 was charged under Section 404 I.P.C


7. The accused denied the charges levelled against them. The case of A-1 was that he did not give the report (Ex. P. 66) to the Sub-Inspector of Police (P.W. 30), that Sub-Inspector of Police (P.W. 39), that A-2 did not visit the house of the deceased in the night of August 24, 1975 and that on that night he went to see a picture and on his return from cinema hall he found the deceased dead. He informed P.W. 6 to 9 about this incident and came back to the house of the deceased where he was waiting till the arrival of P.W. 30 and P.W. 31. He was arrested at 1 p.m. by P.W. 31 on that day without any reasonable ground. He denined to have produced M.Os. 1 and 5 and he was also not pulled by the dogs. A-2 pleaded that he did not know anything about the murder of the deceased and he did not go to Tadikonda on August 24, 1975. He was in his native village Chhattaparru on that day. He further stated that he attended the College at Eluru on August 25, 1975 and that while he was reading in his house in the night, the police came to him at about 9 p.m., and took him to the house of P.W. 14 where he was shown to P.W. 14. According to him, he was taken to the Tadikonda police station in a car in the early hours of August 26, 1975 by P.W. 30 and P.W. 31 and some other police officers. He learnt about the murder of the deceased only through P.W. 11 after he reached Tadikonda


8. The Additional Sessions Judge, Guntur acquitted both the accused of the charges under Section 302 read with Section 34, I.P.C. as the prosecution failed to prove the same either by direct or circumstantial evidence. The Additional Session Judge, however, convicted appellant No. 1(A-1) of the offence under Sections 404 and 201, I.P.C. and sentenced him to suffer R.I. for three years on each count. The sentences however, were directed to run concurrently. The Additional Sessions Judge, however, did not consider it necessary to give any finding to the offence under Section 182, I.P.C. A-2 was convicted under Section 404, I.P.C. and was sentenced to undergo R.I. for three years


9. Against this judgment of conviction and sentence both the accused filed Criminal Appeal No. 360 of 1976. The State also filed Criminal Appeal No. 603 of 1976 against the order of acquittal of the accused from the charges under Section 30-2 read with Section 34, I.P.C. The High Court of Andhra Pradesh dismissed both the appeals


10. Aggrieved by the said judgment of the High Court in Criminal Appeal No. 360 of 1976, the instant appeal on special leave has been filed


11. It has been contended on behalf of the appellants that the alleged recovery of M.Os. 1 and 5 as mentioned in the mahazarnama (Ex. P. 15) from the person of A-1 was not at all proved. It has been further contended in this connection that in the early morning of August 25, 1975, A-1 after giving information of the murder of the deceased by some strangers who forcibly entered into the house by breaking open the doors, was waiting in the house of the deceased for arrival of the police. He denied that he went to the police station and submitted a report (Ex. P. 66). He further denied that he absconded and P.W. 26, the police constable, brought him to the house of the deceased, Yasodamma at about 8 a.m. before P.Ws. 30 and 31. He also denied that P.W. 31 arrested him and recovered from him M.Os. 5 and 1 i.e. 27 hundred rupees notes and a gold chain of two rows with black beads and red locket as alleged by the prosecution. Mahazarnama (Ex. P. 15) wherein M.Os. 1 and 5 were mentioned was signed by Vengatakrishnarao (P.W. 11) and Doddi Krishnamurthy (P.W. 29). P.W. 31, T. Venkateswara Rao, C.I. of Police stated in his evidence that A-1 after his arrest by him produced M.O. 5 (27 hundred rupee notes) and M.O. 1 (a gold chain with black beads and red locket) from his waist in the presence of P.W. 11 and P.W. 29 and he seized them under the cover of Ex. P. 15. P.W. 11, Gogineni Venkata Krishna Rao stated in his deposition that he came to the house of Yasodamma by 7.30 a.m. on August 25, 1975. By then A-1 was in the house of Yasodamma. He further stated that the Inspector of Police informed him that M.O. 1, black beads chain and M.O. 5 (27 hundred repee notes) were found in the pocket of A-1 and asked him to scribe a mahazarnama to the effect that they were found in the pocket of A-1 in their presence and accordingly he signed Ex. 15, mahazarnama, the numbers on M.O. 5 hundred rupee notes were noted in Ex. P. 15. In cross-examination, P.W. 11 further stated that police did not question A-1 and he did not say anything to the police in his presence. He further stated that on that day, he learned that A-2 was brought to Tadikonda and he was kept in police station. P.W. 11 was not at cross-examined as to whether M.Os. 1 and 5 were recovered from the person of A-1 in his presence or not. The other witness to the mahazarnama, P.W. 29, did not say anything about the production of M.Os. 1 and 5 by A-1 in his examination-in-chief nor he was cross-examined on this score. He was, of course, declared hostile as he stated in his deposition in his examination-in-chief that the C.I. of Police told him that there was a cast of Rs. 2870/- of various denominations in the iron safe and that it was seized by him and he asked him to sign in the mahazarnama, Ex. P. 65. so he signed in it. He further stated in his examination-in-chief that it was not true that the C.I. of police searched the iron safe in his presence and seized M.O. 24 in his presence. Therefore, the case of the prosecution regarding the recovery of the gold chain with black beads and as well as 27 hundred rupee notes from the person of A-1 was not proved by any independent witness. P.W. 30, S.I. who was present at the time when the alleged recovery was made also does not say in his evidence that the M.Os. 1 and 5 as referred to in Mahazarnama, Ex. P. 15, were recovered in his presence from the person of A-1 and the same were seized by P.W. 31. In these circumstances, it is difficult to hold that the jewels and cash (M.Os. 1 and 5) as mentioned in the mahazarnama had actually been recovered from the person of A-1. Furthermore, the prosecution story of A-1 having absconded and P.W. 26, the police constable finding him at the Tadikonda cross-road and bringing him to the house of the deceased, Yasodamma at 8 a.m. and producing him before P.W. 30 and P.W. 31 has also been negatived by the evidences of P.Ws. 6, 8, 11 and other witnesses who stated categorically that A-1 was in the house of the deceased at 6.30 a.m. when they reached there and P.W. 30 and P.W. 31 were present there. The charge under Section 404 was, therefore, not proved beyond reasonable doubt against A-1


12. As regards the allegation that A-2 pledged chandraharam with P.W. 28, the Pawn Broker at about 8 a.m. on August 25, 1975 as per M.O. 10 chit corresponding to its its counterfoil, Ex. P. 64 as well as the recovery of M.O. 2 - a gold chain, M.O. 16 - 104 hundred rupee notes and M.O. 17 - 20 hundred rupee notes and M.O. 18, Pawn Broker chit from his pocket as Ex. 32, Mahazarnama, A-2 specifically denied the recovery of the said articles from his person and he also denied having pledged with P.W. 28, chandraharam on August 25, 1975 at 8 a.m. It has been contended on behalf of A-2 that on August 25, 1975 he attended C. R. Reddy College, Eluru as will be evidenced from Ex. D-12, entry in the attendance register of the College. He further stated that he attended the College in the morning at 10 a.m. and also in the evening when the classes begin from 1.45 p.m. to 4.30 p.m. It is also in evidence that Eluru is 63 miles away from Guntur. It has been contended that it was not possible For A-2 to pledge chandraharam at 8 a.m. in the shop of P.W. 28 on the said day and to attend the college on that day at 10 a.m. It has also been contended on behalf of A-2 that the story of his going to the shop of P.W. 28 at about 7.30 p.m. on August 25, 1975 is also false and the recovery from his person the properties mentioned in the mediators' report (Ex. P. 32) in the presence of P.W. 22 and another is also false. A-2 was in fact arrested at his house at Chhattaparru on the night of August 25, 1975 while he was studying and he was brought to Tadikonda police station by P.W. 30 and P.W. 31 and other police officers in a car in the early morning on August 26, 1975 and was kept there. There is no occasion for his going to the shop of P.W. 28, the Pawn broker and the alleged recovery of the properties from his person by P. W. 31. P.W. 28 who is a Pawn broker stated in his evidence that at about 8 a.m. on August 25, 6975, A-2 came to his shop and offered to pledge chandraharam for a loan of Rs. 6, 000/-. He further stated that he agreed to pay Rs. 5, 000/- in view of the value of the jewel and he paid Rs. 2, 000/- in cash and asked him to come on the following day when the balance will be paid. He further stated that then A-2 pledged M.O. 15 jewel after putting his signatures on M.O. 18 chit and the counterfoil, Ex. P. 64. He gave M.O. 18 chit to A-2. He further stated that he suspected and so he sent information to Lalapet police station on the morning of August 26, 1975 about this matter. In his cross examination he stated that the value of M.O. 15 jewel would be about Rs. 9, 000/-. This story of pledging M.O. 15 is difficult to believe firstly because under the Shops and Establishments Act, shops are not open generally at 6 a.m., secondly if he knew that the value of the chandraharam was Rs. 9, 000/- and this raised his suspicion then it will be natural for him to inform the police station immediately without allowing A-2 to leave his shop. Instead of doing that he is alleged to have intimated the police station on the morning of next day i.e. August 26, 1975 in the evening after payment of Rs. 2, 000/- in cash. All these create suspicion about the alleged pledging of M.O. 15 with P.W. 28 at 8 a.m. on the said date by A-2. Moreover, it was not mentioned in the M.O. 18 chit nor in the counterfoil of Ex. P. 64 that A-2 was asked to come on the next day in the evening to take payment of the balance amount. The seizure of M.O. 15 was mentioned in Mediators Report, Ex. P. 32 and it was signed by P.W. 22 and another. P.W. 22 is a police mediator as he admitted in his cross-examination that he acted as mediator and signed a mediatornama for the police in C.C. No. 9/76 III Addl. Munsif Magistrate Court, Guntur. He also admitted to have signed a mediatornama in regard to several cases referred to therein. He further

stated that he might have deposed once or twice in criminal cases filed by the police in the last three years. This obviously proves that he is a police mediator and he is called by the police whenever it is necessary to have mediatornama signed by a witness in whose presence the alleged recovery of articles is made. There is no independent witness to the alleged seizure. Considering these facts and circumstanced, the alleged prosecution story of pledging chandraharam, M.O. 13 with P.W. 28, the Pawn broker as well as the recovery of various properties from the person of A-2 by P.W. 31 on August 26, 1975 after arrest of A-2 in the shop of P.W. 28 at 7.30 p.m. has not been proved beyond reasonable doubt by the prosecution 13. We have held hereinbefore that the submission of Report (Ex. P. 66) in the police station at about 5.30 a.m. on august 25, 1975 by A-1 and his absconding therefrom soon thereafter has not also been proved in as much as P.Ws. 6, 8, 11 and other witnesses clearly stated in their evidence that they saw A-1 present in the house of the deceased Yasodamma at 6.30 a.m. when they saw the police officers P.W. 30 and P.W. 31 to be present there 14. On a conspectus of all these facts and circumstances as well as the assessment of the evidences on record we are constrained to hold that the prosecution failed to prove the charges under Section 404 read with 201 of the Indian Penal Code against A-1 (Appellant No. 1). The prosecution also failed to prove the charge under Section 404 of the Indian Penal Code against A-2 (Appellant No. 2). The appeal is, therefore, allowed. The orders of conviction and sentence, passed by the High Court as well as by the Additional Session Judge are hereby set aside. Bial bonds are directed to be discharged and the appellants need not surrender Appeal allowed.