Judgment RAJENDRA SAXENA, J. ( 1 ) THESE appeals arise out of the judgement dated 25-7-1981 passed by the Additional Sessions Judge, Kota, whereby he convicted the appellants for offences under Sections 302 and 459, IPC, and sentenced each one of them to life imprisonment on the first count and rigorous imprisonment for 10 years for the second count and directed that their substantive sentences shall run concurrently. Both these appeals are being disposed of by this common judgement. ( 2 ) BRIEFLY the relevant facts are that on the night, intervening 20th and 21st June, 1979 Ramcharan (PW 13) was sleeping alongwith his father Madholal (deceased) on the same cot in a room of his house situated in village Raipur. At about 2 A. M. , he was awakened by the screams raised by Madholal. It was a dark night and the electric bulb installed in the room was not burning. Ramcharan saw three persons inflicting sword blows to Madholal, who was bleeding. Madholal had caught hold of the hairs of one of the assailants, who was tall, Ramcharan saw the assailants in the light of the torch, which one of the assailants was having. The assailants also dealt sword blows to Ramcharan causing injuries to him on his right shoulder, right hand, neck and head, with the result that Ramcharan fell down on the floor of the room. The assailants also threw Madholal on the floor of the room, who succumbed to his injuries. Thereafter, the assailants bolted the room from outside, made search of other two rooms, looted gold and silver ornaments, a wrist watch, a cloth bag containing money and other articles, and fled away. Injured Ramcharan went to the room of his tenant PW 4 Mangilal, who was residing nearby, and informed him about the incident. Since Ramcharan was bleeding, Mangilal wrapped a quilt around his body. Mangilal in turn went to the house of Mohanlal (PW 1) and informed about the said incident. Mohanlal, who is a teacher, submitted a written report Ex. P. 1 on 21-6-79 to PW 14 Gyanchand SHO Police Station Udyog Nagar, Kota, whereupon FIR Ex. P. 11 was drawn and initially a case for offences under Section 458 and 420, IPC was registered. ( 3 ) IT is the prosecution case that on that ill fated night, Smt. Panthi Bai wd/o Madholal (deceased) had gone to attend some Kirtan. P. 11 was drawn and initially a case for offences under Section 458 and 420, IPC was registered. ( 3 ) IT is the prosecution case that on that ill fated night, Smt. Panthi Bai wd/o Madholal (deceased) had gone to attend some Kirtan. She returned in the early hours of 21-6-79. She after checking her house, she submitted a list of looted properties Ex. P. 2 to the police. It was mentioned in list Ex. P. 2 that a pair of silver anwale, a wrist watch case containing 18 torch bulbs, a gold bor and one ear-top, one red coloured cloth bag, whereon the name panthi Bai was embroidered and which contained change of one hundred rupees, her bank pass book, a wrist watch having white dial and on the back thereof "rc" was engraved and currency notes worth Rs. 5,000/- had been stolen from her house. ( 4 ) GYAN Chand (PW 14) sent injured Ramcharan to Maharaja Bhimrao Hospital, Kota, where PW 7 Dr. M. M. Mishra Medical Jurist examined him and found as many as eight incised wounds on his person in the manner detailed in M. L. R. Ex. P. 13. X-ray examination of Ramcharan revealed fractures of shaft ulna of right forearm, dislocation of right clavicle, and fracture of upper mid portion of left parietal bone vide x-ray plates Ex. Ps. 14 to 19 and x-ray report Ex. P. 20. ( 5 ) GYAN Chand inspected place of occurrence in the morning of 21-6-79 and prepared site plan Ex. P. 8. He noticed three foot prints on the eastern side of Madholals room, out of them one foot print was fit for preservation, and as such, mould thereof was lifted. He also found chance prints of one lota which was seized and sealed vide seizure memo Ex. P. 26. He prepared memo Ex. P. 4 of the dead body of Madholal and inquest report Ex. P. 5. Sample of blood stained soil and controlled sample of soil from the room were also seized and sealed by him separately vide seizure memos Ex. Ps. 24 and 25 respectively. He further seized the blood-stained quilt, shirt and dhoti of the deceased vide seizure memo Ex. P. 27. Gyan Chand found some suspected hairs of head embedded in the nails of left hand fingers of the deceased, which were seized and sealed vide seizure memo Ex. Ps. 24 and 25 respectively. He further seized the blood-stained quilt, shirt and dhoti of the deceased vide seizure memo Ex. P. 27. Gyan Chand found some suspected hairs of head embedded in the nails of left hand fingers of the deceased, which were seized and sealed vide seizure memo Ex. P. 28. ( 6 ) ON 21-6-79 Dr. M. M. Mishra conducted the medico-legal autopsy of the deceased and prepared post mortem report Ex. P. 12. He found five incised wounds. On dissection of the body, he found cutting fractures of right and left occipital bones of skull. Transverse membranes were cut on right and left occipital areas. The brain was cut on right and left occipital lobes. The cervical vertebrae C1, and C2 were also found cut transversely on back. The spinal cord was also cut inside C1 and C2 cervical vertebrae. There were cut fractures of sternum and 5th and 6th ribs on right side. Right lung was also cut. In the opinion of the doctor, death of Madholal was coma due to cutting fractures of skull bone and cutting of brain and spinal cord. ( 7 ) TILL 24-6-79, the assailants were not known. In the early hours of 25th June, 1979, appellant Ramkalyan was arrested vide arrest memo Ex. P. 22 and from his possession a wrist watch Art. 20, and a pair of PVC shoes, which he was putting on, were seized and sealed vide seizure memo Ex. P. 30. On 5-9-79, Ramcharan (PW 13) correctly identified wrist watch Art. 20, during the test parade vide memo Ex. P. 35. ( 8 ) APPELLANT Ramgopal was arrested on 25-6-79 vide arrest memo Ex. P. 23. On the same day, he volunteered an information Ex. P. 37 to the effect that he could get the stolen properties recovered from his house situated in village Raipur, and in pursuance thereof on 26-6-79 he got recovered a wrist watch case containing 18 torch bulbs (Art. 18), a gold bor (Art. 14), a red coloured bag, whereon letters smt. Panthi Bai were embroidered, and which contained coins of different denominations amounting to Rs. 149. 68 p. (Art. 19), a pair of silver bichachhua (Art. 15), a gold ear-top (Art. 16) and bank pass book of Smt. Panthi Bai (Art. 17) from his house vide recovery memo Ex. P. 29. Panthi Bai were embroidered, and which contained coins of different denominations amounting to Rs. 149. 68 p. (Art. 19), a pair of silver bichachhua (Art. 15), a gold ear-top (Art. 16) and bank pass book of Smt. Panthi Bai (Art. 17) from his house vide recovery memo Ex. P. 29. ( 9 ) ON 26-6-79 appellant Ramkaran was arrested vide arrest memo Ex. P. 21. On the same day, he volunteered an information Ex. P. 38 to the effect that he could get a pair of silver anwala recovered from his house and in pursuance thereof, he got recovered a pair of silver anwala (Art. 13 ). He also got recovered one plastic torch, a black coloured bush-shirt, one blood stained black coloured pant, and three naked swords vide recovery memo Ex. P. 9 from his house. Out of those swords, the blades of two swords were blood stained with and hairs were visible thereon. On 5-9-79 Smt. Panthi Bai (PW-9) correctly identified gold bor, gold ear top, a pair of silver. bichchhua and silver anwala (Art. 13) on during test parade vide identification memo Ex. P. 34. It is alleged that on 3-7-79, PW 13 Ramcharan correctly identified appellants Ramkaran and Ramgopal during the test parade conducted by PW 11 Gauri Shanker Saraf, Judicial Magistrate, vide identification memo Ex. P. 33. ( 10 ) THE sealed packets of various articles were sent to the State Forensic Science Laboratory Rajasthan Jaipur. The Assistant Director, State F. S. L. vide his report Ex. P. 44 intimated that on morphological examination of samples of hair recovered from nails of deceased, hairs taken from two swords, and specimen hairs of appellants Ramkaran, Ramkalyan and Ramgopal were found to be human head hairs and that the samples of hairs recovered from the nails of the deceased tallied with specimen of hairs of the appellants Ramgopal in all morphological characteristics. The Serologist vide report Ex. P. 45 opined that the quilt, shirt, pant, blood smeared soil, bushirt, and sample of blood were stained with human blood while the blood stains on bushirt, blood smeared soil, three swords, pant and bushirt were disintegrated as such, their origin could not be detected. The Serologist vide report Ex. P. 45 opined that the quilt, shirt, pant, blood smeared soil, bushirt, and sample of blood were stained with human blood while the blood stains on bushirt, blood smeared soil, three swords, pant and bushirt were disintegrated as such, their origin could not be detected. The Serologist also reported that the blood on the pant was stained with blood of group "a", that since the blood stains on other articles were disintegrated and, therefore, their origin could not be detected and that the result of the samples of blood taken from the body of the appellants were inconclusive. ( 11 ) AFTER completion of the investigation, the challan was filed against the appellants in the Court of the learned Judicial Magistrate Kota City, who in turn committed the case for trial to the Court of Sessions, from where it was transferred to the learned trial Judge. The charge for offences under Sections 302 and 459, IPC were framed against the appellants, who denied the indictment and demanded trial. To prove its case, the prosecution examined as many as fifteen witnesses. The appellants in their plea recorded under Section 313, Cr. P. C. denied the circumstances appearing against them in the prosecution evidence and asserted that they had neither volunteered any information nor got recovered any articles from their possession. Appellants Ramgopal and Ramkaran specifically stated that they are residents of village Raipur, that their houses are situated near the house of Ramcharan, who had also studied with them in the same school and that he knew them very well. Appellant, Ramkalyan asserted that he has been falsely implicated. In defence, DW 1 Nand Kishore was examined. After trial, the learned trial Judge by the impugned judgement convicted and sentenced the appellants in the manner indicated above. Hence these appeals. ( 12 ) WE have heard Sarva Shri Sunil Tyagi and Dinesh Kala, learned counsel for the appellants and Shri M. L. Goyal, learned Public Prosecutor, and carefully perused the record of the trial Court in extenso. ( 13 ) IT has been vigorously canvassed by Shri Sunil Tyagi that appellants Ramkaran and Ram Gopal are residents of village Raipur, which has a very thin population, and that their houses are also situated just near the house of Ram Charan (PW 13), who knew them very well. ( 13 ) IT has been vigorously canvassed by Shri Sunil Tyagi that appellants Ramkaran and Ram Gopal are residents of village Raipur, which has a very thin population, and that their houses are also situated just near the house of Ram Charan (PW 13), who knew them very well. From the prosecution evidence, it stands proved that these appellants and Ram Charan also studied in the same school together. But still then the Ramcharan did not disclose their names to PW 4 Mangilal and PW 1 Mohanlal. This fact itself proves that these appellants were not the assailants. At the time of the incident, admittedly, it was dark inside the room. Hence it was not at all possible for Ramcharan to have identified the assailants. Sarva Shri Tyagi and Kala have urged that as per testimony of PW 4 Mangilal and PW 1 Mohanlal, immediately after the incident Ramcharan had disclosed to them that there were only two assailants and that is why in written report Ex. P. 1 it was clearly mentioned that there were two assailants but, later on, during investigation, the prosecution story was substantially improved by stating that there were three assailants. In the FIR, it has also not been mentioned that Ramcharan had identified the assailants in the light of the torch. Therefore, the story of identifying the assailants in torch light has also been introduced later on. According to them, had Ramcharan identified the assailants then in natural course of his conduct, he ought to have disclosed the names of appellants Ramkaran and Ramgopal but he has not done so. Therefore, only the irresistible conclusion which can be drawn is that appellants have been falsely roped in this case. Another contention raised on behalf of the appellants is that there is no positive evidence to show that the appellants after their arrest were kept baparda and, this possibility cannot be ruled out that they were shown to Ramcharan and, therefore, the identification parade becomes highly suspicious. They have contended that appellant Ramkaran has old small pox marks on his face as is evident from his arrest memo Ex. P. 21, but Shri Gauri Shanker Saraf, the then Judicial Magistrate, who conducted test parade did not take any precaution to conceal those conspicuous marks of small pox. Appellant Ramkalyan has a height of 6 ft. as shown in his arrest memo Ex. P. 21, but Shri Gauri Shanker Saraf, the then Judicial Magistrate, who conducted test parade did not take any precaution to conceal those conspicuous marks of small pox. Appellant Ramkalyan has a height of 6 ft. as shown in his arrest memo Ex. P. 22, while Ramkaran and Ramgopal have a height of 52 and 56" respectively, but the learned Judicial Magistrate did also not take any care to mingle persons of their heights during test parade. Thus, the test parade was defective and the same suffers from grave infirmities. Moreover, since as Ramcharan knew appellants previously, their test parade was meaningless. Another argument advanced by Sarva Shri Sunil Tyagi and Dinesh Kala is that the alleged recoveries at the instances of appellants are also doubtful and meaningless because there is not a fringe evidence to show that those articles were recovered from their exclusive possessions. Similarly, the identification parade in respect of the wrist watch (Art. 20) alleged to have been taken from the possession of Ramkalyan is also faulty because, the learned Magistrate did not take any precautions to conceal the words r. C. engraved thereon. The recoveries of those articles are highly doubtful and, therefore, those do not connect the appellants with the crime. They have pointed out that the prosecution did not tender the reports of finger print and foot print expert in respect of chance prints alleged to have been detected on lota and foot prints, which were found near the place of the incident. Moreover, there is not an iota of evidence to prove that the seals of various packets of the articles, which were seized/recovered by the investigating officer and sent to the F. S. L. were not tampered with and that those remained intact till they were received in the office of the F. S. L. ( 14 ) IN the alternative, Sarva Shri Tyagi and Kala have urged that if the alleged recoveries are believed still then at the most the offence made out against the appellants does not travel beyond Section 411 IPC and since the appellants have already undergone sentence for a period of more than two years and they may be sentenced for the periods for which they have already remained in jail. ( 15 ) ON the other hand, Shri M. L. Goyal, the learned Public Prosecutor has argued that written report Ex. ( 15 ) ON the other hand, Shri M. L. Goyal, the learned Public Prosecutor has argued that written report Ex. P. 1 was lodged by PW 1 Mohanlal, who was informed about the incident by PW 4 Mangilal, hence there was some communication gap and as such in the report Ex. P. 1, it was inadvertantly mentioned that there were only two assailants. According to him, Gyan Chand (PW 14) had noticed three foot prints outside room, where the incident had taken place. Thus, from the very beginning, it was established that there were three assailants. Ramcharan did not know the appellants previously and that he had sufficient opportunity to see them in the torch light which was being flashed. He had received multiple injuries and was admitted immediately in the hospital and from where he went to the jail to participate in the test parade conducted and where he correctly identified all the appellants. In such circumstances, there was no occasion for him to have seen the appellants prior to the test parade. Mr. Goyal has submitted that appellant Ramkalyan has faint small pox marks on his face, as has been observed by the learned trial Judge and in such circumstances, even if the Magistrate did not mix persons having small pox marks on the faces during test parade, still then this fact is not fatal. The learned Public Prosecutor has asserted that the alleged recoveries at the instance of the appellants have been well proved by the prosecution evidence and that the recovered articles have been correctly identified by Smt. Panthi Bai and Ramcharan. Moreover the appellants have also not claimed those articles nor have given any explanation as to how they came in possession thereof immediately after the incident. In such circumstances, it can be safely presumed that they had committed the murder of Madholal and looted away those articles from his house after inflicting grievous injuries to Ramcharan. He has also supported the impugned judgement and reiterated reasons given by the learned trial Judge. ( 16 ) WE have given our most anxious and careful consideration to the rival submissions. In this case, injured Ramcharan (PW 13) is the only eye-witness. He has also supported the impugned judgement and reiterated reasons given by the learned trial Judge. ( 16 ) WE have given our most anxious and careful consideration to the rival submissions. In this case, injured Ramcharan (PW 13) is the only eye-witness. He deposed that on the fateful night, he alongwith his father Madholal (deceased) was sleeping on the same cot inside the room as it had earlier rained in the night, and that there was darkness in his room due to stoppage of electrical power. He was awakened by the screams and he saw three assailants inflicting sword blows to his father Madholal, who was bleeding. After causing injuries to Madholal, those assailants dropped the latter on the floor of the room. He saw that his father had caught hold of the hair of one of those assailants, who was tall. Ramcharan stated that the said tall assailant was Ramkalyan, whose hairs of the head were clasped by Madholal in his hands. It may be mentioned here that as per F. S. L. report Ex. P. 44 sample of hairs of head of accused Ramkalyan marked l3 did not tally with morphological characteristics of the hair recovered from the nails of the deceased. As per his arrest memo Ex. P. 22 the height of appellant Ramkalyan is 6 ft. while heights of appellant Ramkaran and Ramgopal as per their arrest memos Ex. P. 23 and P. 21 is 56" and 52" only. Therefore, the statement of Ramcharan (PW 3) to the effect that he had seen his father Madholal catching hold of hair of the head of appellant Ramkalyan stands squarely contradicted from F. S. L. report Ex. P. 44. ( 17 ) RAMCHARAN stated that he did not remember as to on which parts of his body, deceased Madholal had received injuries at the hands of assailants. He further stated that when the assailants found that he (Ramcharan) was awakened, they started giving sword blows on his body and caused injuries on his right shoulder, right hand and neck, and that due to those injuries, he fell down from the cot and the assailants taking him to be dead, went to other rooms after bolting the door of his room from outside. He deposed that the assailants were flashing torch light and that they broke open locks of other rooms and that he had heard sounds of breaking of those locks and that of utensils. In his cross-examination, he specifically admitted that appellants Ramkaran and Ramgopal are residents of village Raipur, that the house of Ramkaran is situated on Kethun road, and that he had also studied in Raipur school for one year. However, he denied the suggestion that the appellants were known to him previously and that they had also attended his marriage. He admitted that when he was awakened, it was dark inside in his room, and that the assailants were flashing torch lights. However, he did not know about size of that torch. He also did not raise any alarm when the assailants were inflicting injuries to his father. This witness also does not know as to which of the assailants was standing on the sides of their head, middle and legs. He stated that after the assailants had gone away, he went to the house of PW 4 Mangilal, and informed him about the incident, who wrapped a quilt around his injuries and thereafter went away to call other villagers. ( 18 ) RAMCHARAN (PW 13) refuted the suggestion that he had informed Mangilal that there were only two assailants and asserted that he had told him that there were three assailants. But Mangilal has specifically stated that Ramcharan had told him that only two thieves had entered in his house and caused injuries to Madholal. Thus, Mangilal categorically contradicts him on this vital count. Ramcharan admitted that Mohanlal had scribed report Ex. P. 1 as per his information. When confronted with the contents of Ex. P. 1, wherein it is clearly mentioned that there were two assailants only, this witness could not give any plausible explanation. He however, asserted that he had informed Mangilal that there were three assailants. ( 19 ) PW 1 Mohanlal, who is a Teacher in the Raipur School deposed that on the fateful night Mangilal came to his house and informed him that as per information given by Ramcharan, 2-3 culprits had entered in his house and committed murder of Madholal and also injured him, that thereupon, he alongwith Mangilal went to the house of Madholal, where he saw injured Ramcharan and dead body of Madholal. ( 20 ) PW 1 Mohanlal in his cross-examination specifically admitted that Ramcharan had told him that two assailants had entered inside his room and inflicted injuries to his father Madholal as also to him, that thereafter he alongwith Shambhudayal went to the police station and submitted written report Ex. P. 1, wherein it has been specifically mentioned that Ramcharan informed that the two assailants had entered into his house and committed murder of his father. Thus, it is abundantly apparent that the story of three assailants has been developed later on during investigation, probably when the investigating officer found three foot prints near the room of the deceased. The learned trial Judge has thus wrongly assessed and evaluated the evidence on this count and ignored this material improvements in the prosecution case, which casts a shadow of doubt. He also admitted that appellants Ramgopal and Ramkaran are residents of village Raipur and that they have been residing there for last so many years. He further admitted that the houses of these appellants are situated on the main road. Village Raipur has a very thin population. Appellants Ramkaran and Ramgopal are residing there since their birth. They have also studied in Raipur school. In such circumstances, it cannot be reasonably inferred by any stretch of imagination that Ramcharan (PW 13) did not know these appellants prior to the incident either by face or by name. Had these appellants been among those assailants, then in the ordinary course. Ramcharan would have identified and named them. But he did not do so. ( 21 ) IN the written report Ex. P. 1 and F. I. R. Ex. P. 11, it was mentioned that the assailants were now known. PW 14 Gyanchand investigating officer has specifically admitted that till 25-6-79 the names of assailants were not known and that it was on that day through one mukhbir it transpired that appellants were the assailants, who had committed the murder of Madholal, caused injuries to Ramcharan and looted their properties. But, the prosecution has not examined the said Mukhbir. PW 14 Gyanchand investigating officer has specifically admitted that till 25-6-79 the names of assailants were not known and that it was on that day through one mukhbir it transpired that appellants were the assailants, who had committed the murder of Madholal, caused injuries to Ramcharan and looted their properties. But, the prosecution has not examined the said Mukhbir. Since till 24-6-79, neither injured Ramcharan nor any other prosecution witness nor the investigating officer had come to know about the identity of assailants of the incident, it was all the more necessary for the prosecution to have examined that Mukhbir who could tell as to how he had come to know that the appellants were the assailants. Non production of that Mukhbir, therefore, also makes the prosecution story suspicious. ( 22 ) IN Hindu Singh v. State, ILR (1951) 1 Raj 838, a dacoity took place at night and it was not proved that there was sufficient light, in which the accused could be identified. During trial, PW 1 stated that it was on account of the torch light that he could identify the accused. It was held that it was not very easy to believe that a dacoit would flash torch light at the time of the dacoity so that he might be identified by the persons, who were victims. It was further held that ordinarily, people are so much stricken with terror at the time of a dacoity in which a considerable amount of property is looted and guns fired and lathis used, that it would be very difficult to base conviction only on the statements of a very small number of witnesses, whose statements are not free from doubt. ( 23 ) IN Matka alias Harprasad v. State of Rajasthan, (1979 Cr LR Raj 7) it was the prosecution case that the dacoits were identified in torch light. It was held that the story that the prosecution witnesses had seen faces of the culprits in the torch light carried by some of culprits was difficult to believe and that assuming for a moment that the dacoits were carrying torches as alleged, they would use them for spotting the inmates of the house, ornaments and the cash which they wanted to steal but they were least likely to flash the torches on the faces of one another. ( 24 ) IN Noor Khan v. State of Rajasthan, (1984 RLR 329), a similar view was taken and the prosecution story was disbelieved. ( 25 ) IN Hari Nath v. State of U. P. ( AIR 1988 SC 345 : 1988 Cri LJ 422) it was held that where at least one of the eye-witnesses identifying the accused in the test parade could be expected to have known some of accused as residents of villages in close vicinity and as students of same institutions, was a statable probability, and that the feigned ignorance on the part of the eye-witnesses of any prior familiarity with their identity became irreconcilable with what are incidents of ordinary human intercourse and that failure to state identity of accused in the FIR raises reasonable doubt about complicity of accused in the crime. ( 26 ) SIMILAR are the facts of the case on hand PW 13 Ramcharan did neither inform Mangilal nor Mohanlal that the assailants carried torches and that in the light thereof he had seen them. It is abundantly apparent that later on the story of torch light was invented and developed. Admittedly, appellants Ramkaran and Ramgopal are residents of the same village Raipur since their birth and their houses are also situated near the house of the deceased. Ramcharan (PW 13) and the appellants also studied in Raipur school at least for one academic year. Ramcharan has also failed to state about size of the torch and as to which of the assailants was carrying that torch. Thus, we do not find any valid, sufficient and reasonable ground to believe the testimony of Ramcharan that he did not know the appellants prior to the incident. Admittedly, at the time of incident, it was dark inside the room, where the deceased and Ramcharan were sleeping. In such circumstances, the statement of Ramcharan that he had identified the appellants in the torch light which one of them was flashing appears to be highly suspicious. The story is rather a creature of an after thought. ( 27 ) THE test parade of appellants conducted by PW 11 G. S. Saraf also suffers from grave infirmity. In such circumstances, the statement of Ramcharan that he had identified the appellants in the torch light which one of them was flashing appears to be highly suspicious. The story is rather a creature of an after thought. ( 27 ) THE test parade of appellants conducted by PW 11 G. S. Saraf also suffers from grave infirmity. In Samunder Singh v. State of Rajasthan, ILR 1952 (2) Raj 182 : AIR 1953 Raj 182 : 1953 Cri LJ 1452 one of the accused had perceptible white spots on his face and neck and another accused had very conspicuous black marks on his forehead and cheeks. The proceedings of the identification did not show that the Magistrate had taken precautions to conceal those marks at the test parade. It was held that the said omission very much detracted from the evidentiary value of identification. It was emphasized that if any accused had conspicuous perceptible marks on his face then it is the duty of the Magistrate to take suitable steps to conceal them at identification parade and to record steps so taken by him in the identification parade memo. ( 28 ) IN Rehmat Khan v. State of Rajasthan, (1986 (1) WLN 360), the accused had small pox marks, but persons with small pox marks were not mixed during test. ( 29 ) IN the case on hand, the test parade was conducted by PW 11 G. S. Saraf Judicial Magistrate. He admitted that as he did not take necessary precautions to conceal small pox marks of appellant Ramkaran. Ramkaran was arrested vide arrest memo Ex. P. 21, wherein it has been specifically mentioned that he had old small pox marks on his face. Ramcharan (PW 13) has, in most clear and unambiguous terms admitted that he had identified appellant Ramkaran on the basis of small pox marks on his face. G. S. Saraf (PW 11) after seeing appellant Ramkaran in Court also admitted that there were ordinary small pox marks on his entire face and that he did not mention this fact in the test parade memo Ex. P. 33. In the said memo, it has also not been recorded that the persons having small pox marks on their faces were also mixed with the appellant during text parade. He stated that other persons mingled with the appellants during test parade were also of the same age group. P. 33. In the said memo, it has also not been recorded that the persons having small pox marks on their faces were also mixed with the appellant during text parade. He stated that other persons mingled with the appellants during test parade were also of the same age group. However, no such note finds mention in the test parade memo Ex. P. 33. As mentioned earlier, the appellants had different heights ranging from 5. 2 ft. to 6 ft. But, there is no note in the test parade memo Ex. P. 33 that the heights of the persons, who were mingled with the appellants during teat parade, were also similar to that of the appellants. Again, there is no note in the parade memo Ex. P. 33 that the accused appellants were kept baparda. The prosecution has also not tendered any positive evidence either oral or documentary to prove that after their arrest the appellants were kept baparda, when they were in police custody and, thereafter when they were sent to the judicial lock up. On the other hand, motbirs PW 8 Satyanarain. PW 10 Prabhulal as also PW 9 Smt. Panthi Bai have stated that the police had brought appellants Ramkaran, Ramgopal and Ramkalyan in village Raipur in connection with various recoveries effected at their instance. In recovery memoes Ex. P. 9 and P. 21 also, it has not been mentioned that the appellants were brought to the village Raipur baparda. On the other hand, in the test parade memo Ex. P. 33, at Column 3, G. S. Saraf PW 11 has wrongly mentioned that there were no specific marks of the appellants affecting identification parade. In Col. 4 about precautions taken by the Judicial Magistrate, the word "nil" has been mentioned meaning thereby that the said Magistrate did not take any precautions to conceal perceptible or prominent marks on the face or body of the appellants. It is also curious to note that PW 13 Ramcharan did not disclose to the said Magistrate that he had seen the accused persons in the torch light during the incident. On the other hand, he simply told the Magistrate that he did not know the names of the accused persons and that he would identify by seeing them. It is also curious to note that PW 13 Ramcharan did not disclose to the said Magistrate that he had seen the accused persons in the torch light during the incident. On the other hand, he simply told the Magistrate that he did not know the names of the accused persons and that he would identify by seeing them. In such circumstances, we are of the considered opinion that the learned Magistrate failed to take all necessary and proper precautions during the test parade. Hence the test parade conducted by him does not inspire any confidence and no evidentiary value can be attached to it and it cannot be safely and reasonably held that appellants were those assailants, who had committed the murder of Madholal, caused injuries to Ramcharan and looted away their properties. ( 30 ) GYANCHAND (PW 14) proved site plan Ex. P. 8 wherein it has been mentioned that he had found fresh three foot prints just outside the room where the dead body of Madholal was lying and that he had shown those prints at mark "g" in the site plan Ex. P. 8 and that one of those foot prints was fit for preservation and that foot print was preserved, mould thereof was lifted and was sent for examination and comparison to the Foot Print Expert. But the prosecution has not tendered the report of the Foot Print Expert. Therefore, the prosecution has miserably failed to prove that the said foot print was the foot print of any one of the appellants. ( 31 ) GYANCHAND I. O. also seized a lotta (tumbler) having chance print thereon vide seizure memo Ex. P. 26. Those chance prints were lifted and sent to the Finger Print Expert but his report has also not been filed by the prosecution, which shows that those chance prints did not tally with the finger prints of the appellant. ( 32 ) GYANCHAND (PW 14) stated that on 29-6-79 appellant Ramkaran volunteered an information that he could get recovered a pair of silver anwala from his house and that in pursuance thereof, he took him to his house situated in village Raipur and that from a heap of old clothes and discarded articles, he got recovered three naked swords, out of which two swords had blood stains with head hairs on their blades. Ramkaran also got recovered a torch, black coloured pant and bushirts and a pair of silver anwala therefrom. It is pertinent to note that appellant Ramkaran did not volunteer any information leading to recovery of the swords, pant and bushirt. In such circumstances, the alleged recoveries of swords pant and bushirt were not effected in pursuance of any information under Section 27 of the Evidence Act of appellant Ram Karan and as such, the alleged recovery of those articles appear to us quite suspicious. Besides this, those swords having blood stains and hair were sent to the Forensic Science Laboratory but in the report of the F. S. L. Ex. P. 44 there is no report that the hair found on those sword had morphological characteristics of hairs of the deceased or the injured Ramcharan. As a matter of fact, specimen hair of the heads of the deceased and the injured Ramcharan were not at all sent to the F. S. L. for their comparison with the hairs, which were allegedly found stuck and stained with blood on the blades of those two swords. Examination and comparison thereof could have conclusively proved that the deceased and injured Ramcharan had received injuries by these two swords. Therefore, the alleged recovery of those swords is meaningless and the same does not connect appellant Ramkaran with the crime. ( 33 ) THUS it is abundantly apparent that the investigation in this case has been conducted in a perfunctory manner and there is no clear, cogent and convincing evidence to establish the presence of any of the appellants in the house of the deceased on the day of the incident. The learned trial Judge has conveniently ignored the aforementioned glaring infirmities in the prosecution evidence and positively committed a manifest error of fact as well as of law in convicting the appellants for offences under Sections 302 and 459, IPC. ( 34 ) HOWEVER from the prosecution evidence, recoveries of incriminating articles against all the appellants stand well established. Appellant Ramgopal was arrested on 25-6-79 vide arrest memo Ex. P. 23. Gyan Chand (PW 14) stated that on the same day, Ramgopal volunteered information Ex. ( 34 ) HOWEVER from the prosecution evidence, recoveries of incriminating articles against all the appellants stand well established. Appellant Ramgopal was arrested on 25-6-79 vide arrest memo Ex. P. 23. Gyan Chand (PW 14) stated that on the same day, Ramgopal volunteered information Ex. P. 37 and in pursuance thereof on 26-7-79 (sic) in the presence of motbirs Satyanarain and Prabhulal, appellant Ramgopal took him to his house situated in village Raipur and by lifting a slab from the kutcha floor of his house he got recovered one carton of henry Sandos wrist watch containing 18 battery bulbs, one gold bor (Art. 18), one red coloured cloth bag whereon words, panthibai were embroidered, containing change of coins worth Rs. 149. 68 p. a. pair of silver bichchua (Art. 15), one gold ear-top (Art. 16), and bank pass book of Panthi Bai (Art. 17), which were seized and sealed vide recovery memo Ex. P. 29. Motbirs Satyanarain (PW 8) and Prabhulal (PW 10) have fully corroborated the sworn testimony of Gyanchand and proved the said recoveries. We do not find any force in the contention of Shri Sunil Tyagi that since the said recoveries were made from the house wherein other family members of Ramgopal were also residing, those articles were not recovered from his exclusive possession, because, the said articles were concealed in a pit hidden inside the floor of the house which was covered by a slab and as such those articles were in the special knowledge and exclusive possession of appellant were covered by a slab which was removed by appellant Ramgopal. ( 35 ) THE aforementioned articles were correctly identified by PW 9 Smt. Panthi Bai vide identification memo Ex. P. 34. during test parade conducted by Shri G. S. Saraf Judicial Magistrate (PW 11 ). Appellant, Ramgopal has not claimed that those articles belonged to him. He has also failed to give any explanation as to how he came in possession of those articles, which belonged to Smt. Panthi Bai. Thus, under Section 114 of the Evidence Act, it can be safely presumed that appellant Ramgopal had dishonestly received those articles and kept them in his possession knowing them to be stolen property as such the prosecution has successfully proved beyond reasonable doubt offence under Section 411, IPC, against appellant Ramgopal. Thus, under Section 114 of the Evidence Act, it can be safely presumed that appellant Ramgopal had dishonestly received those articles and kept them in his possession knowing them to be stolen property as such the prosecution has successfully proved beyond reasonable doubt offence under Section 411, IPC, against appellant Ramgopal. ( 36 ) IN Netrapal v. State of Rajasthan (1982 Crlr Raj 119) a dacoity took place in a dark night and no light was available. There was no description of the culprits in the FIR. The identification of the appellants was held to be doubtful as such they were acquitted of the offence under Section 395, IPC. But since the looted properties were recovered at their instance and from their possession, it was held that it should be legitimately presumed that they had dishonestly received properties knowing them to be looted property and they were convicted under Section 411, IPC. Therefore, even if the appellants have not been charged for offence under Section 411 IPC still then they can be held guilty and convicted for offence under Section 411 IPC. ( 37 ) APPELLANT Ram Karan was arrested on 26-6-1979 vide arrest memo Ex. P. 21 Gyan Chand (PW 14) deposed that on 29-6-79 appellant Ramkaran volunteered information under Section 27 of the Evidence Act, which was recorded vide information memo Ex. P. 38 and that in pursuance thereof the said appellant vide recovery memo Ex. P. 29 got recovered a pair of silver anwala from his house in presence of the motbirs. Motbir - Mangilal (PW 4) has corroborated testimony of Gyan Chand (PW 14) and proved recovery memo Ex. P. 29. PW 9 Smt. Panthi Bai has correctly identified the said pair, of silver anwala during the test parade vide memo Ex. P. 34 as also during trial. Her statement finds due corroboration from the testimony of G. S. Saraf (PW 11 ). Again, appellant Ramkaran has neither claimed that the said pair of silver anwala belonged to him nor has given any explanation as to how he came in possession of the said ornament immediately after the incident. Therefore, in our considered opinion, the prosecution has also successfully brought home the offence under Section 411, IPC against him beyond all reasonable doubt. ( 38 ) APPELLANT Ramkalyan was arrested in early hours of 26-6-79 vide arrest memo Ex. P. 22. Therefore, in our considered opinion, the prosecution has also successfully brought home the offence under Section 411, IPC against him beyond all reasonable doubt. ( 38 ) APPELLANT Ramkalyan was arrested in early hours of 26-6-79 vide arrest memo Ex. P. 22. Gyan Chand PW 14 stated that at the time of arrest, appellant Ramkalyan was putting on a wrist watch (Art. 20) and PVC shoes, which were seized and sealed vide seizure memo Ex. P. 30 in presence of motbirs Satyanarain and Prabhulal. Wrist watch (Art. 20) was correctly identified by Ramcharan (PW 13) during the test parade vide identification parade memo Ex. P. 35, which has been duly proved by G. S. Saraf (PW 11 ). He deposed that he had mixed four similar wrist watches having white dial with watch Art. 20 and that the same was correctly identified by Ramcharan (PW 13 ). No question had been put to this witness in cross examination about letter "rc" engraved on the back of the wrist watch (Art. 20 ). During test parade only the white dials of wrist watch (Art. 20) and other wrist watches, which were mixed were visible, the letter "rc" which was on the back side of wrist watch (Art. 20) was not visible. Therefore, the test identification parade of wrist watch (Art. 20) cannot be held to be faulty. ( 39 ) APPELLANT Ramkalyan has not claimed this wrist watch. He has also not given any explanation whatsoever as to how he came in possession of the said wrist watch immediately after the incident. In such circumstances, it can be safely presumed that he dishonestly received this wrist watch and kept the same in his possession knowing that it was a stolen property. Hence offence under Section 411, IPC stands fully proved against appellant Ramkalyan beyond reasonable doubt. ( 40 ) AS regards quantum of punishment for the offence under Section 411, IPC it is borne out from the record that appellant Ramkalyan has remained in custody from 26-6-79 to 3-11-81. Hence offence under Section 411, IPC stands fully proved against appellant Ramkalyan beyond reasonable doubt. ( 40 ) AS regards quantum of punishment for the offence under Section 411, IPC it is borne out from the record that appellant Ramkalyan has remained in custody from 26-6-79 to 3-11-81. Thus, he has already suffered sentence for a period of about 2 years four months and seven days, Appellant Ramgopal has already remained in detention from 25-6-79 to 12-3-81 and thereafter from 25-7-81 to 3-11-81 i. e. , for a period of one year eleven months and eight days and that appellant Ramkaran has been in custody from 26-7-79 to 5-12-80 and thereafter from 25-7-81 to 3-11-81 i. e. , in all for about one year eight months and seven days. The alleged incident took place on 20-6-79 i. e. about 17 years back and after such a long lapse of time it would not be proper and justified to again send the appellants to jail. In our considered opinion the sentences already suffered by them for the offence under Section 411, IPC would suffice to meet ends of justice. ( 41 ) IN the result, these appeals are partly allowed. The conviction and sentence of appellants, Ramkaran, Ramgopal and Ramkalyan for offence under Sections 302 and 459, IPC are hereby set aside. However, they are found guilty for the offence under Section 411, IPC, and each one of them is sentenced to the period for which he has been under detention in this case. The appellants are on bail and they need not surrender. Appeal partly allowed.