JUDGMENT 1. The accused-appellant Narain Singh and one Bachan Singh (acquitted by the trial court), were tried by learned Addl. Sessions Judge, Gangapur City for committing the murder of Anand Singh on the intervening night of 26th/27th August, 1974 and charges were framed against them under sections 302, 120-B and 394 I.P.C. The learned trial Judge acquitted Bachan Singh of all the charges framed against him. He however, convicted accused Narain Singh under section 302 I. P. C and sentenced him to life imprisonment and a fine of Rs. 500/-. He was also convicted under section 394 I. P. C. and sentenced to further ten years' rigorous imprisonment and a fine of Rs. 100/-. The substantive sentences were ordered to run concurrently. 2. The facts giving rise to this appeal are that on 15th July, 1974 Anand Singh (since deceased) after committing theft in his house left his village Maldevta, district Dehradoon in the company of accused Gabbal alias Narain Singh. They remained in Dehradoon for nearly If months and thereafter came to Sawai Madhopur. It is alleged that PW. 4 Ramu saw the accused and deceased taking meal in a hotel of PW. 3 Kishan at Sawai Madhopur. Prosecution case further is that after taking their meals, they boarded a truck which was being driven by accused Bachan Singh, All the three went to quarries where the labourers placed stones into the truck. While returning back, Bachan Singh dropped the accused and the deceased near Diwanji-ki-Babdi. 3. On 28th August, 1974 a dead-body was found floating in Babdi which was brought out and later identified as that of Anand Singh (since deceased) by accused Bachan Singh and others. During the course of investigation; accused Narain Singh was arrested by the police on 2nd September, 1974. At the time of recovery article 7 to 11 were recovered from his possession. At the instance of accused a knife article 14 and Sandal article 15 were also recovered. But the recovery of knife is not of much consequence as the Serologist failed to notice human blood upon it. The stolen article 7 to 11 were identified in the test identification parade by Kunwar Singh PW 9 and Smt. Asha Devi PW. 10, father and mother of the deceased. Both of them identified the article during the course of trial also. The learned Judge placed reliance on the statement of PW. The stolen article 7 to 11 were identified in the test identification parade by Kunwar Singh PW 9 and Smt. Asha Devi PW. 10, father and mother of the deceased. Both of them identified the article during the course of trial also. The learned Judge placed reliance on the statement of PW. 18 Anand held that the deceased was last seen in the company of accused. He, further held that the article 7 to 11 belonging to the deceased, were found from the exclusive possession of the accused. In the opinion of the learned Judge, these circumstances were sufficient to hold the accused guilty of the charges framed against him beyond reasonable doubt. He convicted and sentenced him as mentioned above. The convicted accused has come in appeal. 4. Learned counsel appearing on behalf of the accused has read over to us the statement of Anand PW. 18. No doubt, this witness states that Bachan Singh had dropped two boys from his truck near Diwan-ji-ki-Babdi. He also identified accused as well as Photo Ex. P. 7 and stated that one of them was accused person in the court and the other one was the deceased. The statement of witness was recorded on 18th April, 1975 i. e. after nine months of the alleged occurrence. There is nothing on record to hold that the accused was seen in the company of the deceased on the night intervening the date of murder of Anand Singh. The witness has also failed to state that the dead-body of Anand Singh was found on the next day of his seeing the deceased in the company of the accused and as such on the statement of this solitary witness, it would be unsafe to hold that the accused was last seen in the company of the accused. 5. As regards the recovery of the articles 7 to 11, we uphold the finding of the trial court. There is cogent and inconsistent evidence on this point. Moreover, the accused has also not claimed the ownership of these articles. After eliminating the statement of PW. 18 Anand the only circumstantial evidence which remains on the record is recovery of the articles belonging to family of the deceased which is said in the pocket of the accused. Recovery was made after expiry of nearly five days of alleged date of murder. After eliminating the statement of PW. 18 Anand the only circumstantial evidence which remains on the record is recovery of the articles belonging to family of the deceased which is said in the pocket of the accused. Recovery was made after expiry of nearly five days of alleged date of murder. The intervening time between the date of murder and the date of recovery is an important factor in this case and we are of opinion that it will not be safe to maintain the conviction of accused under section 302 I. P. C. only on the basis of the recovery. 6. We, therefore, partly accept the appeal, set aside the conviction of the accused under section 302 and section 304 IPC, but convict him under section, 411 IPC, and sentence him to three years rigorous imprisonment which the accused has already undergone. The period of sentence awarded by this Court has already bee: suffered by the accused and as such he is ordered to be released forthwith if not required in any other case. Sd/- M.L. Shrimal, J. Sd/- M.B. Sharma, J.Appeal partly allowed. *******