JUDGMENT 1. - The learned Additional Sessions Judge No. 1 Alwar, has convicted both the appellants Mahendra Singh and Ram Kishore, both by caste Meena, resident of Kutsin, Sahabdas, under a judgment dated 28.11.1988, under Sections 302/392 read with Section 397 Indian Penal Code. On the first count, each of the accused appellant was sentenced to life imprisonment and a fine of Rs. 500/- and under the second count to undergo ten years rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine, to undergo six months rigorous imprisonment. The substantive sentence on each of the count have been ordered to run concurrently. 2. The case of the prosecution is that the deceased Smt. Budhi is the wife of P.W. 10 Dhansi. A day prior to the occurrence, she had gone to village Ramgarh as her grand son was ailing. When she had left the house, she was having silver ornaments on her person. Two silver kaddas on her wrist and four silver kaddas in her feet. She was also having one golden tabiz in her neck. She was to return the next day i.e. 26.9.1987, to her village but did not return to her house and somebody informed Dhansi P.W. 10, husband of Smt. Budhi, that when he alongwith his son was working on the field, some body has killed Smt. Budhi and her dead body is lying in the fields of Ram Charan. P.W. 10 immediately went to the spot and saw that the dead body of Budhi was lying in the fields of Ram Gharan. There were no ornaments on the dead body. Her hands were chopped of from wrists and so also near the ankles and silver ornaments as well as golden tabiz were missing. Dhansi P.W. 10, lodged a report in the police station and a case was registered and investigation was set in motion. 3. There were no ornaments on the dead body. Her hands were chopped of from wrists and so also near the ankles and silver ornaments as well as golden tabiz were missing. Dhansi P.W. 10, lodged a report in the police station and a case was registered and investigation was set in motion. 3. On 27.9.87, both the accused persons were arrested and so far as accused appellant Mahendra Singh is concerned, after his arrest vide Arrest Memo Ex.P.3, he made a discovery statement to the S.H.O. P.W. 20 Girdhari that he has concealed three silver kaddas in a field and would gel them recovered and accused with two motbirs Budha Ram P.W. 7 and Shiv Lal P.W. 8 went to the place mentioned in his discovery statement and three silver kaddas were recovered from his possession, he had taken them out after digging the earth upto the depth of 6". The silver kaddas were having blood. They were seized and sealed. Accused appellant Mahendra Singh consequent to the information had also got recovered the golden tabiz in the presence of same witnesses Shiv Lal P.W. 8 and Budha Ram P.W. 8, vide recovery memo Ex.P. 10. He had also got recovered the pent which appeared to be blood stained vide recovery memo Ex. P. 10. 4. So far as accused appellant Ram Kishore is concerned, he was arrested on 29.9.1987, and he too had made a discovery statement, consequent to which vide the recovery memo Ex.P. 4, three silver kaddas were recovered which weighed 1 kg. and also appeared to be having blood. They were also seized and sealed at the spot. The accused had further got recovered two pieces of cloth which appeared to have been torn pieces from the pent and they too were having blood stains, they were seized and sealed. 5. The clothes of the deceased were sealed. Blood smeared earth was taken from the spol. Both the accused persons are said to have got recovered and churies which too were seized and sealed and all the sealed articles were sent to the Director, Forensic Science Laboratory, Jaipur, who vide his report Ex.P 40 has found that there was human blood on all of them and even on all the articles i.e. clothes of the accused, clothes of the deceased person as well as silver ornaments there was human blood. 6. 6. The accused persons have denied that any thing was got recovered by any of them. They did not examine any witness in defence. The learned Sessions Judge convicted and sentenced each of the accused person as aforesaid. 7. We have heard learned counsel for the accused appellants and learned Public Prosecutor and have gone through the record. It was contended by the learned counsel for the accused appellant that the evidence of last seen so far as the accused appellant Mahendra Singh is concerned, is not reliable. He further contends that if the evidence of last scene is disbelieved, there will be no substantial circumstances, which have been rather the circumstantial evidence, shall not be sufficient to connect the accused with crime. Learned counsel further contends that so far as the recovery of a churi from accused Ram Kishore is concerned, out of the two motbir witnesses, only one was examined. The recovery of Churi from accused appellant Ram Kishore is not proved. The learned counsel has also challenged the identification of the articles before the Magistrate. 8. It will be seen from the perusal of the record as well as the judgment of the learned Trial Court that while convicting each of the accused appellant, the learned trial court has placed reliance on the following evidence. 9. Accused Mahendra Singh (a) Evidence of last scene. (b) Recovery of three silver kaddas and one golden tabiz, on his information. All these ornaments were on the dead body of deceased when she left the village. (c) That the Director, Forensic Science Laboratory found human blood of B Group on these silver ornaments and the same blood group was found in the blood smeared earth as well as the clothes of the deceased. (d) Recovery of a churi from the accused on his information, which too was blood stained and containing human blood of 'B' Group. (e) Recovery of clothes of the accused which too had human blood of 'B' group. 10. Accused Ram Kishore (1) Recovery of silver kaddas three in number having blood stains. (2) Report of Director, F.S.L. that the blood was human and was of B Group, vide Ex.F. 40, (3) Recovery of Churi from his possession on his information having blood and the Director F.S.L. found blood on it. 10. Accused Ram Kishore (1) Recovery of silver kaddas three in number having blood stains. (2) Report of Director, F.S.L. that the blood was human and was of B Group, vide Ex.F. 40, (3) Recovery of Churi from his possession on his information having blood and the Director F.S.L. found blood on it. So far as the pieces of pant are concerned, the learned trial court has not placed reliance on recovery of pieces of pent on the ground that when the pent was not got recovered, there was no reason to retain the pieces of pant and get them recovered so that they may be read as evidence. 11. After having heard learned counsel for the accused appellants and learned Public Prosecutor, so far as accused Mahendra Singh is concerned, it can be said that there is evidence of last seen against him. The prosecution examined two witnesses and they are P.W. 3 Ramjilal and P.W. 4 Hari. P.W. 3 Ramjilal has stated that he was going to his village via Ganj Kherli Bazar, and he saw that wife of Dhansi P.W. 10 was going towards the village. Her name is Budhi. She was having a bundle (potli) with her and was also wearing two silver kaddas, one each in her legs. He further stated that there after he saw the accused appellant Mahendra Singh going towards the same side. Mahendra Singh is resident of Kuttin. In cross-examination, he stated that he had seen the accused following the deceased about four fields away i.e. 1000 steps and on the same day at about 8 p.m. he saw the dead body lying in the field of Ram Chandra. It will be seen that as per his statement the accused appellant Mahendra Singh was seen following Budhi deceased towards the village and at the time the deceased was having silver ornaments on her person. P.W. 4 Hari a resident, states that about seven months prior to his statement i.e. prior to 29th September, 1987, he had seen the accused appellants following Smt. Budhi at a distance of 40-50 yards and she was having a bundle and wearing golden tabiz in her neck and was also having silver kaddas on her waist and legs. Thereafter he heard that a murder has been committed in the village. He stated that except accused Mahendra Singh and deceased Budhi, none-else were seen at that time. Thereafter he heard that a murder has been committed in the village. He stated that except accused Mahendra Singh and deceased Budhi, none-else were seen at that time. 12. From the statement of above two witnesses, it cannot be said that on the date of incident, the accused was last seen following the deceased near the field of Ram Charan and the dead body of the deceased was found in the field of Ram Charan. Not only this, from the thorough fare of the field of Ram Charan trackle of blood was also found upto the fields of Ram Charan. 13. The other evidence, which has been brought on the record against the accused appellant Mahendra Singh as stated above is that he was arrested on 27.9.87. After his arrest, the accused appellant Mahendra Singh had made a discovery statement to Girdhari Singh S.I. P.W. 20 at about 3.05 p.m. that he has concealed a knife, a golden tabiz in his house in a bag and he has further concealed three silver kaddas in a field of Jawar and he can get them recovered. In pursuance of this discovery statement, he led Girdhari Singh and other two motbirs to the place mentioned in his discovery statement and got recovered three silver kaddas from the fields of one Motilal Meena. The accused excavated earth upto 8" and thereafter had taken out three silver kaddas. Two motbirs P.W. 7 Budha Ram and P.W. 8 Shiv Lal were present. The recovered articles were seized and sealed.The accused appellant Mahendra Singh further have an ant-occasion on the same day i.e. 27.9.1987 at 5.30 p.m. that was pair of socks, towel and two pieces of cloths have been concealed by him in the fields of Chaju and he would get them recovered and consequent to his statement contained in Ex.P. 36, the accused got recovered the aforesaid articles which were blood stained. They were seized and sealed. 14. When the accused appellant Mahendra Singh was arrested on 27.9.1987, he was wearing pant and shoes, which appeared to be blood stained. In the presence of motbirs Shiv Lal and Budha, they were also seized. The aforesaid seized articles were sent for chemical examination and the Director Forensic Science Laboratory in his report Ex.P. 40 found that they were stained with human blood and further they were stained with B group blood. In the presence of motbirs Shiv Lal and Budha, they were also seized. The aforesaid seized articles were sent for chemical examination and the Director Forensic Science Laboratory in his report Ex.P. 40 found that they were stained with human blood and further they were stained with B group blood. The fact that the knife which was recovered from the possession of the accused as well as the silver kaddas were having blood of the same group which was found on the clothes of the deceased, is very important piece of evidence, connecting the accused appellants with the crime. Thus, so far as the accused Mahendra Singh is concerned, besides the evidence of last seen, the fact that he was arrested on the next date of occurrence, the blood stained clothes on his person were seized, the blood was human blood and of B group, the same group of blood which was of the deceased, connects the accused with the crime. It can also be said that the dagger, which was recovered on the information of the accused was found stained with human blood and the B group blood as-said above was found on the clothes of the deceased as well as the blood smeared soil.There is sufficient material on record that the deceased was having the ornaments on her person, when she had left the house and also when she was returning to her village. As stated, the accused was following her and was last seen with the deceased. The recovery of the ornaments of the deceased next day of the occurrence, on the information of the accused raises a presumption not only that the accused committed robbery of the ornaments but further that the accused had committed the robbery while committing the murder of Smt. Budhi and the motive of the accused was greed i.e. theft of the ornaments of the deceased. 15. Therefore, there is sufficient material on record so far as the accused Mahendra Singh is concerned and it can be said that the circumstantial evidence is sufficient to connect the accused with the crime and the circumstances appearing against the accused are capable of any explanation other than the one proposed to be proved that is the accused is the person who has caused the death of deceased Budhi. It is not disputed and cannot be disputed that her both the wrists and feet were chopped off in order to commit the theft of ornaments. The accused appellant Mahendra Singh was, therefore, rightly convicted by the learned Sessions Judge under Section 302, 392 read with Section 397 Indian Penal Code. 16. Coming to the case of Ram Kishore accused, there is no evidence of last seen so far as he is concerned and as said ad hoc the only evidence on the basis of which the learned Sessions Judge has convicted the accused appellant is that he was arrested on 27.9.1987, the next day of the commission of the offence and on his information under Section 27 of the Evidence Act, silver kaddas were recovered in his presence in the presence of Budha Ram and Shiv Lal. Girdhari Singh P.W. 20 has Stated that there alter his arrest, accused appellant had informed him that three silver kaddas have been concealed in the fields of Moli Meena, he could get them recovered. He has further stated that they were blood stained. He also Stated that the accused appellant had also given information on the same day, got recovered some pieces of pant and had got them recovered. Even the learned Sessions Judge has not placed reliance on the recovery of pieces of pant and he has said that the pant was snot recovered as there was no necessity for the accused appellant. As there is no reason for him to keep in tact with the pieces of pant so that to get them recovered. Thus the evidence against the accused appellant is of recovery of silver ornaments and some clothes. So far as the evidence of recovery of dagger from the accused appellant Ram Kishore is concerned, no doubt, Girdhari Singh P.W. 20 has stated about it as well as about the discovery statement made by this accused appellant but the recovery is said to have been made from Jawar crop. P.w. 19 Jamna Lal has been examined but he did not support the case of the prosecution. The other witness was not examined. Therefore, the recovery of knife is not proved and the only evidence against him is recovery of three silver kaddas blood stained. We are of the opinion that this evidence is not sufficient to connect the accused with the offence of murder. 17. The other witness was not examined. Therefore, the recovery of knife is not proved and the only evidence against him is recovery of three silver kaddas blood stained. We are of the opinion that this evidence is not sufficient to connect the accused with the offence of murder. 17. Consequently, wo hereby find no force so far as the appeal of accused Mahendra Singh is concerned and the same is dismissed. His conviction and sentences are maintained. 18. The appeal of Ram Kishore is partly allowed. The judgment of learned trial court convicting and sentencing him under Section 302 and 392 Indian Penal Code is set aside. Instead, he is convicted under Section 379 and is sentenced to undergo two years rigorous imprisonment for the said offence. He has already undergone the sentence more than two years. He shall, therefore, forthwith be released, if not wanted in any other case. *******