JUDGMENT 1. - This appeal is directed against the judgment passed by learned Sessions Judge, Jaipur District Jaipur on July 31, 1975. whereby the accused-appellant has been convicted for offence under section 302 IPC and sentenced to imprisonment for life. He has been further convicted for offence under section 392 IPC and sentenced to seven years' rigorous imprisonment. Both the substantive sentences have been ordered to run concurrently. The accused-appellant aggrieved against the conviction and sentence preferred an appeal through Jail wherein Shri A. K. Gupta subsequently ovlunteered to represent the accused-appellant. 2. The facts giving rise to this appeal are that on June 26, 1975 Jagdish Prasad Sharma, P.W.l. lodged a written report addressed to the Station House Officer, Police Station Bassi, wherein it was alleged by him that his father's sister those name was Bhuwani and who had become widow in her childhood, used to live at their residence. She was about 70 years of age. On that morning at about 11 a m, she was going from her house towards the village Gonare. In the way near village Burthal someone followed her on cycle and she was killed by inflicting lathi blows. She was thereafter dragged on a side from the route and her both the legs were cut and the silver kadas which were in her both the legs have been removed. Approximate weight of those silrve kadas are about 1/12 kg. On the receipt of this report a case under section 302 IPC was registered and investigation commenced. On June 28, 1974 the autopsy of the corpse was got conducted by Dr. Om Prakash Gupta, PW. 10, Medical Jurist, S. M. S. Hospital, Jaipur, who found the following external and internal injuries on the person of the deceased :External ; 1. Incised wound 9 cm X 3 cm transverse on forehead in middle. 4 cm above eye brows, bone deep. 2. Incised wound 3 cm X 1 cm verticle in mid line, extending from bridge of nose to wound No. 1. It was bone deep. 3. Incised wound 3 cm X 1 cm parallel to mid line. 1 cm right to it, on posterior part of parietal region from scalp, bone deep. 4. Incised wound 3 cm X 11/2 cm on left side of scalp in occipital parietal region 7 cm from mid line, perpendicular to mid line, bone deep. 5. It was bone deep. 3. Incised wound 3 cm X 1 cm parallel to mid line. 1 cm right to it, on posterior part of parietal region from scalp, bone deep. 4. Incised wound 3 cm X 11/2 cm on left side of scalp in occipital parietal region 7 cm from mid line, perpendicular to mid line, bone deep. 5. Incised wound 3 cm X 11/2 cm on left side of scalp in occipital region. 10 cm from mid line, bone deep. All the injuries were anti-mortem in nature and all the five injuries were caused by some sharp cutting weapon. Legs : The portion of both the legs with lower third with feet were lying apart from the dead body. The cut portion of the protinal portions of the remaining legs are simulting with that of the amputated portions in their size. The cut portions are not uni formally regular though the margins are clear cut. These injuries of legs were post mortem in nature, caused by some sharp cutting weapon. Internal: Scalp, skull and vertebrae and membranes, brain and spinal cord ; Skull (ii) Fracture frontal bone transverse. 9 cm. long and 7 cm above eye brows both. Fracture frontal bone verticle in mid line extending from above mentioned fracture No.l downwards upto bridge of nose. Brain : Laceration in right frontal bone and subdural haematoma right parietal 3. The Investigating Officer P.W. 16 Himmat Singh on the same day i.e. June 28, 1974 after inspecting the site prepared the memo of site-inspection and inquest report and also recovered certain goods lying by her side. The Investigating Officer found near the spot two foot prints, (the marks of a sandal) and he took its mould and prepared memo Ex. P. 11. The Investigating Officer on the same day arrested the accused and prepared the arrest memo Ex. P. 18. When the accused was arrested he was, found having cycle Article 4 with him which was also seized. A transistor was also recovered from his possession besides Rs. 620/- in cash. After his arrest the accused while in custody gave an information Ex.P.23 to the effect that he had sold the silver kadas to a Sarraf near Chhoti Chaupad in Jaipur and he can point out the shop. The accused was taken to Chhoti Chaupad where he pointed out the shop of Shri Radha Govind, PW. 620/- in cash. After his arrest the accused while in custody gave an information Ex.P.23 to the effect that he had sold the silver kadas to a Sarraf near Chhoti Chaupad in Jaipur and he can point out the shop. The accused was taken to Chhoti Chaupad where he pointed out the shop of Shri Radha Govind, PW. 6 to whom he had sold the aforesaid silver kadas for a sum of Rs. 965/-. Radha Govind produced the kadas sold to him by the accused and also the register Ex.P.8. wherein he had made the entry of the said transaction. The accused thereafter gave another information to the effect that the bushshirt and the dhoti which he was wearing at the time of committing murder have been placed by him at the residence of Deena Harijan, PW.7 which also he can get recovered. In consequence of this information the said clothes were also recovered at the instance of the accused in the presence of motbirs and were seized and sealed as they were found to be stained with blood. On the next day i. e. June 29, 1974 the accused again while in custody gave information regarding recovery of knife dagger which was recovered at his instance from Patwarkhana where he was living. This dagger was also seized and sealed as it was found stained with blood. The clothes and dagger were sent to Chemical Examiner and Serologist for obtaining the reports which have subsequently been received and are Ex. P. 27 and P. 28. The impression of the sandals of the accused was also taken and it was sent for comparison with the mould taken from the spot to the Director, Finger Print Bureau who sent his report Ex. P. W. 29 stating that there was a mark similarity between the two. After completion of the investigation a charge-sheet was submitted against the accused-appellant in the j court of Additional Judicial Magistrate, Dausa who committed the accused to face trial before learned Sessions Judge, Jaipur District, Jaipur for offence under sections 302 and 392 I. P. C. The charges were read over to the accused to which he pleaded not guilty and claimed to be tried. The prosecution in support of its case examined sixteen witnesses. The accused admitted in his statement recorded under section 313 Cr. The prosecution in support of its case examined sixteen witnesses. The accused admitted in his statement recorded under section 313 Cr. P. C. the recovery of the silver kadas on the information furnished by him and stated that the kadas belonged to his wife and were bearing mark 'A' on them. He stated that since his wife was pregnant and he was in need of money he sold the silver kadas to Radha Govind Sarraf. It is pertinent to mention here that when the accused had gone to sell the silver kadas to Radha Govind PW.6, he was accompanied by his father Chhotu PW. 5, Deenaram Harijan PW. 7 and his wife. The prosecution relied upon five circumstances against the accused to connect him with the crime namely, (I) the recovery of the silver kadas in consequence of the information furnished by the accused and belonging to Mst. Bhuwani deceased (2) recovery of bushshirt and Dhoti which have been found to be stained with human blood (3) recovery of blood stained dagger at the information and instance of the accused (4) the accused was seen nearby the place of occurrence in the noon of June 27, 1974 and (5) similarity of shoe marks of the accused's sandal with the mould taken from the scene of thee occurrence. 4. The learned Sessions Judge did not rely on the last circumstance i.e. regarding the shoe mark of the accused alleged to have been found on the spot but found the other four circumstances proved and convicted and sentenced the accused as indicated above. Aggrieved against the conviction and sentence this jail appeal has been preferred. 5. It has been argued by the learned counsel for the appellant that the prosecution has miserably failed to connect the silver kadas Ex. 3 to be that of Mst. Bhuwani and the defence of the accused that these silver kadas belong to his wife is even probabilist by the prosecution's own evidence. It is further submitted that the motbirs of the recovery of these kadas and clothes have not been produced in evidence and, therefore, no sanctity can be attached to such a recovery and hence the same has to be kept out of consideration and in case these two circumstances are excluded from consideration, rest of the evidence is not sufficient to maintain the conviction and sentence of the accused. 6. 6. The learned Public Prosecutor submitted that the motbirs might have been won over by the accused and, therefore, though they were present in the Court, have not been examined by the Public Prosecutor conducting the trial. He supported the findings of the trial court. 7. We have given our earnest consideration to the rival contentions and have thoroughly perused the record. 8. The main controversy to be decided in this case is as to whom the silver kadas Ex 3 belong and if the prosecution has failed to show by cogent and reliable evidence that they belonged to Mst. Bhuwani whether conviction can be based on remaining evidence. The prosecution has examined three witnesses, namely, PW. 1 Jagdish, Prasad, the nephew of Mst. Bhuwani P. W. 2 Laxmi Narain, yet another nephew of Mst. Bhuwani and PW. 13 Chhotu Ram, younger brother of Mst. Bhuwani, to prove that these silver kadas recovered were that of Mst. Bhuwani. It is relevant to mention here that after the recovery of these kadas test identification parade of the property was got conducted by the Investigating Officer in the presence PW. 15 Shri Narpat Singh, Tehsildar and Magistrate Classs III. Bassi PW 2 Laxmi Narain and PW. 13 Chhoturam are alleged to have identified them. PW. Jagdish Prasad, who is also the author of First Information Report and who has given the weight of the silver kadas in his First Information Report to be 11/2 kg. has not been asked to identify the silver kadas before the Tehsildar. He has also not stated in his statement as to how and in what manner he could say that these kadas belonged to his aunt. No distinguishing mark has been mentioned by him in his statement. Thus, in our opinion, he has completely failed to show that Arts. Ex. 3 were being worn by his aunt Mst. Bhuwani. P W. 2 Laxmi Narain in his examination in chief has stated that the silver kadas Ex. 3 belonged to his aunt Bhuwani which she used to wear regularly. He, how ever, in his cross examination has stated that no identification of this property was got conducted and he was not asked to identify it. Bhuwani. P W. 2 Laxmi Narain in his examination in chief has stated that the silver kadas Ex. 3 belonged to his aunt Bhuwani which she used to wear regularly. He, how ever, in his cross examination has stated that no identification of this property was got conducted and he was not asked to identify it. He thus denies the fact of holding the test identification parade of the property and learned Public Prosecutor who conducted the case had not even confronted him with the memo prepared by the Tehsildar. Ex. P. 14 In this view of the matter his evidence so far as connecting the silver kadas with Mst. Bhuwani has to be discarded Thereafter remains the testimony of PW. 13, Chboturam who is the brother of the deceased. He in his examination-in-chief has stated that the silver kadas Ex. 3 belonged to his sister Mst Bhuwani which she regularly used to wear in her legs and on the day of the occurrence also when she went out she was wearing these kadas which he had identified before the Tehsildar, Bassi and he had put his thumb impression on Ex. P. 14 and P 15 in token thereof. In cross examination this witness has stated that before his going to this test identification parade of the property he was shown these silver kadas Ex. 3 in police station, Bassi. This admission of the witness in cross-examination makes the entire test identification proceeding worthless. If the property had already been shown to the witness in the police station it clearly means that the seals had been broken prior to placing the goods before the authority conducting the identification parade. No attempt has been made to get it clarified in reexamination or to get the witness declared hostile. In view of the clear admission of the witness that he had been shown the goods in police station we have no alternative but to reject his testimony. In the matters of recovery of stolen property it is always necessary as a rule of prudence that an earlier test identification parade should be held and while placing the goods for identification before the authority getting identification parade conducted they should be kept in sealed and intact position. In the instant case as indicated above. PW. 1 has failed to connect the silver kadas with the deceased while PW. In the instant case as indicated above. PW. 1 has failed to connect the silver kadas with the deceased while PW. 2 has negatived the evidence of test identification parade and PW. 13 Chhoturam has categorically stated that he had seen the silver kadas in police station before test identification parade. In these circumstances there is absolutely no evidence on record to connect the silver kadas Ex. 3 with the deceased and it could not be said that she was found wearing these very kadas at the time of her death, come with a defence of bonafide claim of the property and had stated that these kadas belong to his wife which he wanted to sell because he was at that time in necessity of the money as his wife was pregnant and that these silver kadas were having an identification mark `A'. PW. 5 Chhotu and PW. 7 Deenaram accompanied the accused to the shop of PW, 6 Radha Govind for selling these silver kadas. This has been admitted by PW. 5 Chhotu that the wife of the accused was pregnant at the relevant time. Thus, the contention of the accused that his wife was pregnant at the time of selling of these silver kadas is accepted and his defence is probabilist. There is yet another important factor in favour of the accused that PW. 1 Jagdish Prasad in the F.I.R. has come with the weight of the silver kadas was 11/4 kg. while the weight of the silver kadas purchased by Radha Govind PW. 6 was less than 1 kg. and was 908 grams for which a sum of Rs. 965/-has been paid to him calculating the amount at the rate of Rs. 1073/- per kg. coupled with the further fact that these silver kadas do bear an identification mark `A'. In this view of the matter there is preponderance of probabilities in favour of the defence taken by the accused. In case the aforesaid circumstance is kept out of consideration the prosecution story weakens. We also do not want to place reliance on the recovery of blood-stained bushshirt and Dhoti. Firstly the finding of the learned Session Judge that the Dhoti was also stained with human blood is factually incorrect. A perusal of Ex. In case the aforesaid circumstance is kept out of consideration the prosecution story weakens. We also do not want to place reliance on the recovery of blood-stained bushshirt and Dhoti. Firstly the finding of the learned Session Judge that the Dhoti was also stained with human blood is factually incorrect. A perusal of Ex. P. 28 clearly shows that item No. 34 which is cutting from piece of Dhoti have been found to be disintegrated and its origin could not be determined. Secondly with regard to the cutting of the that it has not been shown that the blood found on it was of the same group which was found on the Ghaghra and Lungi recovered from the person of the deceased and thirdly none of the two motbirs in whose presence the shirt and the Dhoti were seized have been produced in the court. The argument of the learned Public Prosecutor that they might have been won over is based on conjectures. No application to this effect has been placed on record by the learned Public Prosecutor conducting the trial nor he made any oral request before the learned Sessions Judge, therefore, we are unable to come to the conclusion n that these witnesses, have been left by the prosecution because they were won over by the accused. We are, therefore, also, not prepared to place reliance on this circumstance that the blood stained Dhoti and shirt had firstly been recovered in consequence of the information furnished by the accused and at his instance and secondly that they are co-related with the blood of the deceased. Hence this circumstance is also to be kept out of consideration. We do not find it necessary to discuss the other two circumstances relied on by the learned Sessions Judge because the two main circumstance on which - the prosecution has based its case have been held to be not proved to the hilt by us as mentioned above and we are left with no alternative but to acquit the accused in this ghastly and brutal murder which has been committed for lust of property. Suspicion however, strong cannot take the place of proof and conviction cannot be based on mere suspicions. The prosecution has failed to prove its ease beyond reasonable doubt and the benefit of doubt has to be given to the accused. Suspicion however, strong cannot take the place of proof and conviction cannot be based on mere suspicions. The prosecution has failed to prove its ease beyond reasonable doubt and the benefit of doubt has to be given to the accused. In view of our discussion above we give benefit of doubt to the accused-appellant. 9. In the result we allow the appeal, set aside the conviction and sentence awarded to the accused-appellant and acquit him of both the charges levelled against him. This is on bail, he need not surrender. His bail bonds are discharged. *******