JUDGMENT 1. 1. Appellant Lakhma and one Ratna were prosecuted before the Addl. Sessions Judge, Udaipur on charges under. sections 302/34 and 201 IPC. The Additional Sessions Judge by his Judgment dated 23rd April, 1977 acquitted accused Ratna of both the charges but convicted appellant Lakhma for the offence u/s 302 and 201 IPC. The appellant has been sentenced to imprisonment for life and to pay a fine of Rs. 200/- and in default of payment of fine to further undergo rigorous imprisonment for one year for the offence u/s 302 IPC and to three years R.I. and a fine of Rs. 500/- and in default of payment of fine to further undergo R.I. for six months for the offence under section 201 IPC. 2. The case of the prosecution, briefly stated, is that on 28th August, 1975, PWI Madan Singh, Chowkidar of Manpur Tank, found a dead body having wounds floating in the Manpur Tank. He prepared a written report (Ex, P. 1) and sent the same to police station Jhalra through one Deola (P.W. 22). The said report was received at police station Jhalra on 29th August 1975 at 8.30 a.m. and on the basis of the said report the FIR was prepared and a case u/s 302/201 IPC was registered and investigation lion was commenced. Shri Chhattar Singh (PW 24), S.H.O. police station, Jhalra, went to Manpur tank and recovered the dead body from the tank. He prepared a Panchayatnama (Ex. P. 2) and the site Plan (Ex. P. 3). He also seized the "Banyan" (Art. 2) and the "Dhoti" (Art. 1) found on the dead body vide seizure memo (Ex. P. 5). The dead body was sent for post-mortem examination and the postmortem examination was conducted by Dr. Nand Kishore (PW 16) Medical Officer In-charge, Primary Health Centre, Salumber vide postmortem report (Ex. P. 15). The photographs (Ex. P. 23 to P. 28) of the dead body were also taken. Since the dead body was not identified by any body, the same was cremated. The case of the prosecution is that 2-3 days prior to 23-8-1976 one Geba son of Ram Chander resident of Salumber and who carried on the profession of treating persons affected by evil spirits had left his house in the company of the appellant but he did not return to his house and his wife and other relative were searching him. On learning that a dead body had been recovered from Manpur tank, Smt. Parvati (PW 15) wife of Geba and Roopa (PW 19), the brother of Geba came to Manpur Tank and met Shri Chhattar Singh S.H.O., P.S. Jhalra. Shri Chhattar Singh showed to the aforesaid persons the clothes which had been recovered from the dead body found in the Manpur tank and which had been seized by him vide seizure memo (Ex. P. 5). The said clothes were identified by Smt. Parvati and Roopa as those belonging to Geba son of Ramchander and therefore, the memo of identification (Ex. P, 6) was prepared. On 30th August 1975 a "Safa" (Art. 3) was found in the jungle by Roopa (PW 11) the son-in-law of Geba and the same was produced before Shri Chhattar Singh and the said 'safa' was identified by Smt. Parvati as belonging to her husband Geba and it was seized vide memo (Ex. P. 7). On 4th September 1975 the appellant was arrested vide arrest memo (Ex. P. 16) and after his arrest he gave information, vide memo (Ex. P. 18) with regard to his having concealed the golden 'ghantora' and the silver 'Kandora' in his house and his having kept the silver buttons with one Khurshid Ali and a wrist watch with a watch dealer at Salumber. On the basis of the aforesaid information golden 'ghantora' (art. 4) and silver 'kandora' (art. 7) were recovered from the house of the appellant vide recovery memo (Ex. P. 8). Silver buttons (art. 5) were recovered from the possession of Khurshid Ali (PW 9) vide recovery memo (Ex. P. 9) and the wrist watch (art. 8) was recovered from the possession of one Radhey Shyam (PW 14). Ratna, the other accused, was also arrested on 4th September 1975 and on the basis of the information (Ex. P. 19) given by him a sword was recovered. A test identification parade was conducted by Shri Nanakram (PW 23), Judicial Magistrate, Salumber on 16-9-1975 wherein the appellant was put up for test identification by Smt. Parvati and Roopa and he was identified by both these witnesses. The proceedings of the said identification parade are recorded in the memo of identification (Ex. P. 20). A test identification parade was conducted by Shri Nanakram (PW 23), Judicial Magistrate, Salumber on 16-9-1975 wherein the appellant was put up for test identification by Smt. Parvati and Roopa and he was identified by both these witnesses. The proceedings of the said identification parade are recorded in the memo of identification (Ex. P. 20). A test identification with regard to the articles recovered from the possession of and at the instance of the appellant was conducted by Shri Nanakram (PW 23) on 19-9-1975 and the golden 'ghantora' silver 'kandora' and the silver buttons were identified as those belonging to deceased Geba by Smt. Parvati (PW 15) and Roopa (PW 19) and the wrist watch was identified as belonging to the deceased Geba by Smt. Parvati (PW 15) and Khurshid Ali (PW 9). The proceedings of the aforesaid test identification are contained in the memo of identification (Ex. P. 21). After completing the investigation the police filed a charge-sheet against both the accused persons in the court of Judicial Magistrate. Salumber, who committed both of them for trial to the court of Sessions. The accused persons pleaded not guilty and claimed to be tried. 3. The prosecution, in support of its case, examined 24 witnesses. The appellant, in his statement recorded u/s 313 Cr. PC, denied the prosecution case and stated that he had been falsely implicated. He has also stated that he had been shown to Smt. Parvati at the police station before she came to identify him. The accused persons examined two witnesses viz., Vajiya (DW 1) and Dhaniya (DW 2) in defence. 4. The Additional Sessions Judge, by his judgment dated 23rd April, 1977, held that the identity of the dead body has been satisfactorily established from the clothes which were found on the dead body which had been identified as those of Geba by his wife, Smt, Parvati (P.W. 15) and his brother Roopa (P.W. 19). The Addl. Sessions Judge further held that the appellant was the person who was last seen with the deceased by Smt. Parvati the wife of the deceased, who was identified the appellant as the person who had accompanied her husband when he left his house. The Addl. Sessions Judge further held that the golden 'ghantora' (art. 4), silver 'kandora' (art. 7), silver buttons (art. 5) and the wrist watch (art. The Addl. Sessions Judge further held that the golden 'ghantora' (art. 4), silver 'kandora' (art. 7), silver buttons (art. 5) and the wrist watch (art. 8) belonging to the deceased and which the deceased was wearing at the time he left the house in the company of the appellant, were recovered from the possession of the appellant or at his instance a few days after the incident. Taking into consideration the aforesaid circumstances, the Addl. Sessions Judge held that the prosecution was successful in establishing, beyond doubt, that it was the appellant who had committed the murder of deceased Geba. The Addl. Sessions Judge further held that the evidence adduced by the prosecution against accused Ratna was not sufficient to establish his complicity in the clime. The Addl. Sessions Judge, therefore, convicted the appellant for the offences referred to above. The Addl. Sessions Judge, however, acquitted accused Ratna of both the charges. Hence this appeal. 5. We have heard Shri Doongar Singh, learned counsel for the appellant and Shri M.C. Bhati, the learned Public prosecutor for the State. 6. The first question which requires to be determined in this appeal is whether the dead body which was recovered from the Manpur tank on 29-8-1975 can be said to be the dead body of Geba son of Ram Chander. From the evidence of P.W. 1 Madansingh, P.W. 2 Harji and P.W. 6 Bhagwatilal, it appears that at the time when the dead body was taken out from the Manpur tank, its condition was such that it could not be identified. The dead body was cremated before it could be identified and before Smt. Parvati (P.W. 15) reached the police station. The identification of the dead body is sought to be proved on the basis of the clothes viz., Dhoti (art. 1) and Banyan (art. 2), which were found on the dead body and which were seized by Shri Chhattar Singh (PW 24) vide seizure memo (Ex. P. 5). The said clothes were identified by P.W. 15 Smt. Parvati and P.W. 19 Roopa as those belonging to Geba on 30-8-1975. The prosecution has also produced the 'safa' (art. 3) which was produced before the Investigating Officer on 30-8-1975 and has been identified as that belonging to Geba. P. 5). The said clothes were identified by P.W. 15 Smt. Parvati and P.W. 19 Roopa as those belonging to Geba on 30-8-1975. The prosecution has also produced the 'safa' (art. 3) which was produced before the Investigating Officer on 30-8-1975 and has been identified as that belonging to Geba. The aforesaid safa was however, found lying in the jungle and not on the dead body and, therefore, the aforesaid safa does not in any way show that the dead body which was found in the Manpur tank was that of Geba. For the purpose of identification of the dead body the clothes which have to be taken into account are the Banyan (art. 2) and the dhoti (art. 1). 7. Shri Doongar Singh, the learned counsel for the appellant, has submitted that the Panchayatnama (Ex. P2) shows that apart from the Banyan there was no cloth on the dead body and it was naked and, therefore, it cannot be said that the dhoti (article 1) was found on the dead body at the time it was recovered from the Manpur tank. It is true that in the Panchayatnama (Ex. P 2) it has been mentioned that on the dead body there was a Banyan and that the dead body was naked but PW 1 Madansingh, who had seen the dead body on 28-8-1975 and had seen the report (Ex. P 1) and was also present at the time when the dead body was taken out from the Manpur tank, has stated that there was a Banyan on the dead body and a dhoti was hanging on the back side of the body. PW 3 Gota, who is the attesting witness of the seizure memo (Ex. P. 5) with regard to the recovery of the 'Banyan' and the 'dhoti' has also stated that the Sanyan and the dhoti were on the dead body and that both the Banyan and the dhoti were seized vide memo (Ex. P. 5). PW 6 Bhagwati Lal, is the other attesting witness of the seizure memo (Ex. P. 5) and he too has stated that there was a Banyan on the dead body and the dhoti was hanging on the dead body and both the Banyan and dhoti were seized by the police vide memo (Ex. P. 5). P. 5). PW 6 Bhagwati Lal, is the other attesting witness of the seizure memo (Ex. P. 5) and he too has stated that there was a Banyan on the dead body and the dhoti was hanging on the dead body and both the Banyan and dhoti were seized by the police vide memo (Ex. P. 5). In view of the evidence aforesaid we are of the opinion that it is fully established that the dhoti (article 1) as well as the banyan (article 2) were both found on the dead at the time when it was taken out from the Manpur tank on 29-8-1975 and both of them were duly seized and sealed vide seizure memo (Ex. P. 5) 8. The next contention urged by Shri Doongar Sigh was that even if it be assumed that dhoti and banyan were recovered from the dead body when it was taken out from the Manpur tank, it cannot be said that the same dhoti and banyan were shown to PW 15 Smt. Parvati and PW 19 Roopa on 30-8-1975 and that the same articles were identified as those belonging to deceased Geba. In this regard Shri Doongar Singh has submitted that the dhoti and the banyan had been sealed on 29th August, 1975 when they were seized vide seizure memo (Ex. P. 5) and that the said seal could not have been opened by the investigating officer for the purpose of showing the same to Smt. Parvati and Roopa on 30-8-1975 and for that reason no reliance should be placed on the identification of the dhoti and the banyan by Smt. Parvati and Roopa. We are unable to accept the aforesaid contention. It is true that the dhoti and the banyan, after having been recovered from the dead body on 29-8-1975, were duly sealed in the presence of the attesting witnesses of the memo (Ex. P. 5) and on 30-8-1975 when Smt. Parvati and Roopa came to the police station and made enquiries about the person whose body was recovered from the Manpur tank, Shri Chhattar Singh (PW 24) the investigating officer in order to ascertain the identity of the dead body which was recovered from the Manpur tank broke open the seals of the packet containing the 'dhoti' and the 'banyan' for the purpose of showing the same to Smt. Parvati and Roopa. In our opinion the aforesaid course adopted by the I.O. in breaking open the seals of the packet containing the 'dhoti' and the 'banyan' cannot be said to be illegal and improper because the breaking open of the seals of packet containing the clothes was necessary for the further investigation of the case and to ascertain the identity of the dead body. In the present case at the time when the seals of the packet containing the 'dhoti and the 'banyan' were broken open PW 3 Gota, who was one of the attesting witnesses of the seizure memo (Ex. P. 5) was present and the memo identification (Ex. P. 6) shows that after the banyan and dhoti had been shown Smt. Parvati and Roopa, and the same had been identified by them as those belonging to deceased Geba, the said clothes were, again sealed and signatures of PW 3 Gota were obtained on the memo (Ex. P. 6) that was prepared by the investigating Officer. Since Gota (P.W 3) an attesting witness of the seizure memo (Ex. P. 5) was present when the seals were broken and is also the attesting witness of the memo (Ex. P. 6) that was prepared thereafter, it cannot be said that the I.O. has committed any illegality or impropriety in breaking open the seals of the packets containing the 'banyan' and 'dhoti' and in showing the same to Smt. Parvati and Roopa and after the same was identified in re-sealing the said packets. 9. Shri Doongar Singh has next contended that from the evidence on record it is not established that the seals of Inc packet containing the 'banyan' and the 'dhoti' were broken open in the presence of Smt. Parvati and Roopa. In this regard Shri Doongar Singh has invited our attention to the statement of Smt. Parvati (P.W 15) to the effect that at the time when she went at police station, the 'dhoti' (article 1) and the 'banyan' (article 2) were Tying open. Shri Doonger Singh has also referred to the statement of PW 19 Roopa who has stated that the clothes were lying in a bundle at Manpur ki Chowki. Shri Doonger Singh has also referred to the statement of PW 19 Roopa who has stated that the clothes were lying in a bundle at Manpur ki Chowki. It is true that Smt. Parvati (P.W 15) and Roopa (P.W 19) do not specifically say that the seals of the packet containing the 'dhoti' any the 'banyan' were broken open in their presence and thereafter the clothes were shown to them. But PW 3 Gota, who is the attesting wit,ness of the memo of identification of the clothes were identified by Smt. Parvati and Roopa, has stated that the packet containing the cloth es was opened at the chowki and the said clothes were got identified by Smt. Parvati and that she had identified the same. The Investigating Officer, Shri Chhattar Singh (PW 24) has also stated that he had got the 'dhoti' and 'banyan' identified by Smt. Parvati and Roopa in the presence of Gota and after the same had been identified the said clothes were again sealed. No suggestion was made to either of these witnesses that the packet containing the clothes was not sealed when they were seized on 28-8-1975 or that the seals of the packets were broken open before the arrival of Smt. Parvati and Roopa at the police station on 30th August, 1975. In the circumstances we are of the opinion that there is no reason to reject the testimony of PW 3 Gota and the Investigating Officer Chattar Singh (PW 24) and in view of the aforesaid evidence it must be held that after the 'dhoti' (article 1) and banyan (article 2) had been recovered from the dead body on 29-8-1975 they were duly sealed in the presence of PW 3 Gota and the said seats were broken open on 30-8-1975 for the purpose of showing the same Smt. Parvati (PW 15) and Roopa (PW 19) and after they had identified the clothes, the same were again sealed in the presence of Gota on 30-8-1975 vide memo (Ex. P 6). This would show that the dhoti (Art. 1) and banyan (Art. 2) which were identified by Smt. Parvati and Roopa as those belonging to the deceased Geba were the same which were recovered from the dead body on 29-8-1975. 10. P 6). This would show that the dhoti (Art. 1) and banyan (Art. 2) which were identified by Smt. Parvati and Roopa as those belonging to the deceased Geba were the same which were recovered from the dead body on 29-8-1975. 10. Another contention that was urged by Shri Doongar Singh was that Smt. Parvati, during the course of her statement before the trial court, has stated that dhoti and banyan similar to the dhoti and banyan in question are available in the market. The submission of Shri Doongar Singh was that since the dhoti and banyan are of a general type no identification of the dead body on the basis of the dhoti and banyan was possible. We are unable to agree. It is true that the dhoti and banyan which were found on the dead body and have been identified as those belonging to Geba by Parvati and Roopa are commonly available in the market but it does not mean that Smt. Parvati, who is the wife of Geba and Roopa who is the brother of Geba, could not be in a position to identify the said clothes as those belonging to Geba. No question was asked to these witnesses during the course of cross examination, as to how they were in a position to identify the said clothes as belonging to Geba. Nor was any suggestion made to them that they could not have identified the said clothes as those belonging to Geba. In the circumstances, we find no reason not to accept the testimony of Smt. Parvati (P.W. 15) and Roopa (P.W. 19) that the dhoti (art. 1) and banyan (art. 2) which were recovered from the dead body belonged to Geba and on the basis of the aforesaid identification of the clothes which were found on the dead body it can be safely concluded that the dead body which was recovered from the Manpur tank on 29-8-1975 was that of Geba son of Ram Chander, 11. There is no doubt that the death of Geba, whose dead body was recovered from Manpur tank, was homicidal inasmuch as from the post-mortem report (Ex. P. 15) as well as from the evidence of Dr. Nand Kishore (P.W. 16) it appears that there were three incised wounds on the dead body which were all ante-mortem. There is no doubt that the death of Geba, whose dead body was recovered from Manpur tank, was homicidal inasmuch as from the post-mortem report (Ex. P. 15) as well as from the evidence of Dr. Nand Kishore (P.W. 16) it appears that there were three incised wounds on the dead body which were all ante-mortem. Injury No. 1 was horizontat incised wound starting from the back of left ear then to upper part of back of neck then torn right ear joint below the external auditory meatus cutting the lower part of ear and then reaching the right side of face 2" away from the right alasnasi and that the wound was of 12.5" in length, the width was not measurable due to too much depth, and that the depth was reaching up to oesophagus and that the posterior wall of oesophagus was also cut off. Injury No. 2 was horizontal incised wound 4.3" x 6" x 3" on the lower part of neck. Injury No. 3 was horizontal incised wound of 2.1" x 4" x 2" on the right side of occipital region. According to the opinion expressed by Dr. Nand Kishore (P.W. 16) the cause of death was fatal injury to spinal cord and big vessels of the back of neck, resulting in respiratory vaso motor failure. It can thus be said that the death of deceased Geba was homicidal. The question which needs to be determined is whether the appellant can be held responsible for causing the death of Geba. There is no direct evidence to connect the appellant with the crime and the prosecution has relied only on circumstantial evidence, The circumstances which have been relied upon by the prosecution to connect the appellant with the crime arc: (i) the appellant was the person who had come to the house of the deceased and the deceased had left his house in the company of the appellant and thereafter the deceased was not seen alive; (ii) articles belonging to the deceased were recovered from the possession or at the instance of the appellant a few days after the crime. 12. As regards the first circumstance viz., that the deceased had been last seen alive in the company of the appellant there is the solitary testimony of Smt. Parvati (P.W. 15) wife of the deceased. 12. As regards the first circumstance viz., that the deceased had been last seen alive in the company of the appellant there is the solitary testimony of Smt. Parvati (P.W. 15) wife of the deceased. Smt. Parvati has stated that about 10 months prior to her being examined before the trial court one Meena had come to her field and she had seen him taking with her husband. She has further stated that her husband left the house in the company of that Meena and that, while leaving the house, her husband had told her that if the work was finished he would return by the evening or by the next morning and that thereafter she did not see her husband and about 3 days later she learnt that a dead body had been recovered from the Manpur tank and thereupon she went to Manpur where she met the police officer and saw the clothes of the deceased. In the court she identified the appellant as the Meena who had come to her house and was talking to her husband and in whose company her husband had left. The testimony of Smt. Parvati is sought to be corroborated by the proceedings of the test identification parade held on 16th September, 1975 wherein the appellant was put for identification by Smt. Parvati and was identified by her. The said proceedings of the test identification arc recorded in the memo (Ex. P. 20) which has been proved by Nanakram (P.W. 23) who had conducted the test identification proceedings. 13. It may be mentioned that the prosecution has also examined one Kalulal (PW 7) who has stated that about 10-11 months back he had gone to his father-in-law's house at Bhabrana and that while he was returning to Salumber from Bhabrana he and his wife were sitting at the bus stand of Bhabrana and that at that time the bus from Salumber came at Bhabrana and that deceased Geba was sitting in that bus and he had asked the deceased as to where he was going and the deceased had told him that he was going to Manpur. From the evidence of Kalulal it does not appear that he had been any other person in the company of the deceased. The evidence of Kalulal (PW 7), therefore, does not lend any assistance to the case of the prosecution. 14. From the evidence of Kalulal it does not appear that he had been any other person in the company of the deceased. The evidence of Kalulal (PW 7), therefore, does not lend any assistance to the case of the prosecution. 14. In so far as the evidence of Smt. Parvati (PW 15) is concerned the submission of Shri Doongar Singh was that the appellant was arrested on 4-9-1975 and test identification parade was held on 16-9-1976, i.e. 12 days after his arrest and during this period the appellant was taken to various places. Shri Doongar Singh has pointed out that the prosecution has not adduced any evidence to show that after his arrest on 4-9-75, till he was placed in judicial custody, the appellant was kept 'baparda' so that no body could have an opportunity of seeing the appellant prior to the test identification. In this regard Shri Doongar Singh has invited our attention to the statement of Manilal (PW 5) the attesting witness of the recovery memo (Ex. P. 10) regarding the recovery of the wrist watch, who has stated, during the course of cross-examination, that the face of the appellant was not covered with any blanket and that it was open. Shri Doonger Singh has also invited our attention to the statement of appellant during the course of his examination u/s 313 Cr. P.C. wherein he has stated that he had been shown to Smt. Parvati at the police station. We find consider,able force in the aforesaid submission of Shri Doongar Singh. The appellant was arrested on 4-9-1975 and he remained in the police custody till 12-9-1975. In the memo of arrest (Ex. P. 16) It has not been mentioned that after his arrest the appellant was kept 'baparda' and that a direction was given to him to do so. The Investigating Officer Shri Bhopalsing (PW 17) who had arrested the appellant, has nowhere stated that the appellant was kept 'baparda' and any direction was given to him to remain so. On the other hand we find from the evidence of Manilal (PW 5) that when the wrist watch (art. 8) was recovered from the shop of Radheyshyam at Bhabrana the face of the appellant was not covered and it was open. On the other hand we find from the evidence of Manilal (PW 5) that when the wrist watch (art. 8) was recovered from the shop of Radheyshyam at Bhabrana the face of the appellant was not covered and it was open. This would show that the appellant was not kept 'baparda' while he was in police custody and the possibility cannot be ruled out that he might have been shown to Smt. Parvati before she came to identify the appellant at the test identification parade held on 16th September, 1975. In our opinion, therefore, it would not be safe to place reliance on the testimony of Smt. Parvati and to hold on that basis it was the appellant who had come to the house of the deceased and the deceased had accompanied the appellant and the deceased was last seen alive in the company of the appellant. 15. We may now come to the other circumstance, namely the recovery of the articles belonging to the deceased from the possession or at the instance of the appellant. The said articles were golden 'Ghantora' (art. 4), silver Kandora' (art. 7), silver buttons (art. 5) and wrist watch (art. 8). All the aforesaid articles were said to have been recovered on the basis of information given by the appellant vide memo (Ex. P. 18). The golden 'ghantora' (Art. 4) and the silver 'Kandora' (art. 7) are said to have recovered from the house of the appellant vide recovery memo (Ex. P. 8). The two attesting witnesses of the said recovery memo are PW 3 Gota and PW 6 Bhagwatilal. Bhagwatilal does not, however, say anything about the recovery of the 'ghantora' (art. 4) and the 'kandora' (art, 7) from the house of the appellant in his presence. PW 3 Gota, the other attesting witness, has stated that the 'ghantora' as well as the 'kandora' were recovered from the house of appellant in his presence and that the recovery memo (Ex. P.8) was prepared in his presence and it bears his signatures. But during the course of cross examination Gota has stated that he cannot say as to whether the 'ghantora' and the 'kandora' were brought from inside the house by the appellant or by somebody else. He has also stated that he cannot say as to whether the aforesaid article were scaled at the police station. But during the course of cross examination Gota has stated that he cannot say as to whether the 'ghantora' and the 'kandora' were brought from inside the house by the appellant or by somebody else. He has also stated that he cannot say as to whether the aforesaid article were scaled at the police station. In view of the aforesaid statement of PW 3 Gota, who is an independent witness examined by the prosecution to prove the recovery of the two articles, namely, 'ghantora' (art. 4) and 'kandora' (art. 7) from the house of the appellant, the said recovery becomes doubtful inasmuch as it cannot be said that the said article were recovered from the possession of the appellant in the presence of the attesting witnesses and were sealed in their presence. Since we are of the opinion, that the recovery of the 'ghantora' (art. 4) and the 'kandora' (art. 7) from the possession of the appellant has not been satisfactorily established, we do not consider it necessary to deal with the evidence that has been adduced by the prosecution to prove that the said articles belonged to deceased Geba. 16. As regards the recovery of the silver buttons (art. 5) the case of the prosecution is that the said buttons were recovered from the possession of Khurshid Ali (P.W. 9) vide recovery memo (Ex. P. 9). The two attesting witnesses of the aforesaid recovery memo arc Gota (P.W.) and Jai Singh (P.W. 21) in his statement before the trial court has not made any mention about the aforesaid recovery. P.W. 3 Gota is the only witness who has proved the said recovery. During the course of his examination in chief Gota has stated that the recovery memo (Ex.P. 9) bears his signatures. But, when further asked as to whether the buttons (art. 5) where the same which were recovered he, at first, stated that they were the same buttons which were recovered by the police but in the next breath he said that he was not in a position to say that the said buttons were the same because the matter was mote than 11 months old. He has also said that he was unable to say that the place from which the buttons (art. 5) were recovered by the police was a shop of a watch repairer or not. He has also said that he was unable to say that the place from which the buttons (art. 5) were recovered by the police was a shop of a watch repairer or not. In view of the aforesaid statement of Gota we are of the opinion that it can not be held that the silver buttons (art. 5) were recovered from the shop of Khurshid Ali (P.W. 9) and, that they had been handed over to Khurshid Ali (P.W. 9) by the appellant. In the circumstances, no reliance can be placed on the aforesaid circumstance about the recovery of silver buttons. Since the recovery of the silver buttons (art. 5) cannot be said to have been established, it is not necessary to deal with the evidence adduced by the prosecution to prove that the silver buttons (art. 5) belonged to deceased Geba. 17. The wrist watch (art. 8) was recovered from the shop of Radhey Shyam (P.W. 14) at Bhabrana vide recovery memo (Ex.P. 10). The recovery of watch from the possession of Radhey Shyam is proved by Radhey Shyam (P.W. 15) and Mangilal (P.W. 6), who is the attesting witness of the recovery memo (Ex. P. 10). The aforesaid watch was put up for test identification parade held on 19-3-1975 and from the memo (Ex. P. 25) of the said identification proceedings, which has been proved by Shri Nanakram (P.W. 23), the said watch was identified by Smt. Parvati (P.W. 15) and Khurshid All (P.W. 9). Khurshid Ali (P.W. 9) in his statement before the court, does not, say that the watch (art. 8) belonged to deceased Geba. The testimony of Khurshid Ali (P.W. 9), thus, cannot be treated as substantive evidence of the fact that the wrist watch (art. 5) belonged to deceased Geba. The only substantive evidence adduced by the prosecution to prove this fact is that of P.W. 15 Smt. Parvati who has stated that the watch (art. 8) was the one which was worn by deceased Geba at the time when he left for Manpur. Smt. Parvati, does not, however, say that she had identified the said watch at the test identification parade held on 19-9-1975. 8) was the one which was worn by deceased Geba at the time when he left for Manpur. Smt. Parvati, does not, however, say that she had identified the said watch at the test identification parade held on 19-9-1975. Shri Doongar Singh, the learned counsel for the appellant has submitted that in view of the failure on the part of Smt. Parvati to mention in her statement before the trial court that she had identified the wrist watch (art. 8) at the test identification parade held on 19-9-1975 the aforesaid circumstance about her having identified the watch at the test identification cannot be used to corroborate the testimony of Smt. Parvati and that if the evidence of test identification is ignored the identity of the watch (art. 8) being that of the deceased cannot be held to be establishment merely on the basis of the testimony of Smt. Parvati in the court. In support of his aforesaid submission Shri Doongar Singh has placed reliance on the decision of the Supreme Court in Caetano Piedada Fernandes & Ors. v. Union Territory of Goa, Daman and Diu (1977 S.C.C. (Criminal) 154.) 18. In Caetano Piedade Fernandes and another v. Union Territory of Goa, Daman and Diu (supra) the Supreme Court was dealing with a case where one of the accused persons had been put up for test identification before the witness but during the course of his statement before the Court, the witness did not depose that he had identified the accused persons at the test identification parade. The Supreme Court held that in view of the failure on the part of the witness to depose about his having identified the accused in the test identification parade, reliance could not be placed on his testimony in court with regard to the identification of the accused and it has been observed as under:- "Ordinarily, the person who is supposed to have identified the assailants at the test identification parade must himself give evidence in regard to the identification. If he does not himself give such evidence and leaves it to the officer holding the identification parade to do so, the defence would be deprived of an opportunity of cross examination for the purpose of showing that the witness had an opportunity of seeing the accused before they were brought for identification." 19. If he does not himself give such evidence and leaves it to the officer holding the identification parade to do so, the defence would be deprived of an opportunity of cross examination for the purpose of showing that the witness had an opportunity of seeing the accused before they were brought for identification." 19. In the present case also Smt. Parvati (PW 15) has not mentioned about her having identified the wrist watch (art. 8) at the test identification parade held on 19th September, 1975 and in view of the decision of the Supreme Court in Caetano Piedade Fernandes v. Union Territory of Goa, Daman and Diu (supra) it must be held that reliance cannot be placed on the testimony of Smt. Parvati in the court that the wrist watch (art. 8) is the one which belonged to the deceased and was on his hand at the time when he left the house. 20. On a consideration of the evidence that has been adduced by the prosecution it must be concluded that neither of the two circumstances, viz, the deceased having been last seen alive in the company of the appellant and the recovery of the articles belonging to the deceased from the possession or at the instance of the appellant few days after the crime can be said to have been satisfactorily established by the prosecution. Since these are the only two circumstances which have been relied by the prosecution to connect the appellant with the crime it must be held that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. 21. The appeal is, therefore, allowed. The conviction and sentence imposed on the appellant by the Additional Sessions Judge, Udaipur for the offences under sections 302 and 201 IPC are set aside and the appellant is acquitted of both the offences. The appellant is in jail. He may be released forthwith if not required in connection with any other case.Appeal allowed. *******