N. P. SINGH, V. K. AGARWAL, JJ. ( 1 ) BOTH the appeals arise out of the judgment dated 17-12-1986 rendered by the Special Judge, Chhatarpur in Special Case No. 127 of 1984. Therefore, they are heard together and disposed of by this common judgment. ( 2 ) BOTH the appellants were prosecuted for the offence of kidnapping Rakesh, robbing him for his gold ornaments, committing his murder and throwing his dead body in a Nala so as to cause disappearance of evidence punishable under Sections 364. 394, 302/34 and 201 of the Indian Penal Code, The trial Court has convicted the appellant Kripal Singh only under Section 364 of the Indian Penal Code and sentenced him to RI for seven years and to pay a fine of Rs. 1,000/-, in default to undergo RI for further six months, while appellant Hirdai Singh has been convicted under Sections 302/34, 394 and 364 of the Indian Penal Code and sentenced to imprisonment for life; RI, for seven years and to pay a fine of Rs. 1,000/-, in default to undergo further RI for six months and R. I for seven years and to pay a fine of Rs. 1,000/-, in default to undergo further R. I. for six months respectively. No separate sentence for the offence under Section 201 of the Penal Code has been awarded. The sentences have been ordered to run concurrently. ( 3 ) ACCUSED Jeevanlal died during trial and accused Hardas is absconding. ( 4 ) ON 25-5-1984, P. W. 20 complainant Babulal Jam, father of deceased Rakesh went to the police station Bekswaha and lodged a Rojnamcha Sanha (Ex. P-21) about the missing of his son Rakesh from 23-5-1984, who was informed by his daughter Sunita (C. W. 1) on his return from Bemhori that a boy had come and Rakesh went along with him towards Veterinary hospital. On the basis of Rojnamcha Sanha (Ex. P-21) a case of missing of a man vide Report No. 1/84 was drawn up. On 29-5-1984 a Merg intimation (Ex. P-25) about the finding of a dead body of a boy in a Nala was received by P. W. 23 A. S. I. , Budhsingh Yadav at the police station. On the basis of Rojnamcha Sanha (Ex. P-21) a case of missing of a man vide Report No. 1/84 was drawn up. On 29-5-1984 a Merg intimation (Ex. P-25) about the finding of a dead body of a boy in a Nala was received by P. W. 23 A. S. I. , Budhsingh Yadav at the police station. On receipt of the Merg intimation, P. W. 23 Budh Singh Yadav, went to the Nala and recovered dead body of the deceased Rakesh in presence of P. W. 5 Mevaram. Thereafter he sent the dead body to the hospital for post mortem examination. P. W. 14 Dr. T. M. Choudhary has held, autopsy on the dead body of the deceased and found the following injuries on his person: (i) Incised wound obliquely placed at the neck. (ii) Incised wound at the right parito temporal region of head. (iii) Lacerated wound over nose in the opinion of the doctor death was due to haemorrhage. ( 5 ) ON the basis of Rojnamcha Sanna (Ex. P-21), F. I. R. (Ex. P-23) was drawn up and investigation proceeded. P. W. 20 Babulal Jam, father of deceased Rakesh, submitted a written report (Ex. P-1) at the police station that on 23-5-1984 deceased Rakesh had also carried some gold ornaments along with him detailed in the report, which were recovered from the possession of the appellant Hirday Singh. On 1-6-1984 after observing the necessary formalities and completion of the investigation, charge- sheet was submitted and cognizance of the offence was accordingly taken arid the case was committed to the Court of Sessions for trial. ( 6 ) THE prosecution examined in all 23 witnesses at the trial, out of whom P. W. 1 Nanhe Bhai and P. W. 2 Kashiram have given circumstantial evidence that on Wednesday in the night when they had gone to the Jungle in search of their cattle they saw the appellants and other accused persons of this case holding the deceased P. W. 3 Rajkumar Jam, uncle of the deceased had prepared the list of the missing ornaments from the house of his brother P. W. 20 Babulal Jam at his instance, P. W. 4 Shikharchand Jam has also given circumstantial evidence that on 23-5-1984 while he was returning from Sunwaha he had seen the deceased in the company of the appellant Kripal Singh. going towards Sunwaha. going towards Sunwaha. After wishing each other they proceeded towards Sunwaha and when he returned home on 26-5-1984 he told P. W. 20 Babulal Jam that he had seen Rakesh in the company of Kripal Singh going towards Sunwaha. P. W. 5 Mevaram is the witness of confession by coaccused Jeewan to the Sub-Inspector Budhsingh Yadav that he along with appellants and other coaccused had committed murder of Rakesh and had thrown the dead body in Bharka Nala as also the witness of recovery of ornaments Ex. P-3 and seizure memo Ex. P-9. P. W. 6 Bttbulalis the Choukidar of Village Sunwaha, who had lodged the Merg intimation about the recovery of the dead body. P. W. 7 Vishwanath is the witness of Panchnama of the dead body of the deceased. P. W. 8 Kishna and P. W. 9 Ramnath are the witnesses of recovery of the dead body in Bharka Nala. P. W. 10 Babulal is the witness of recovery of pant of the deceased which was tied with a stone in the Nala. P. W. 11 Laxman is a witness of the recovery of the dead body in the Nala. P. W. 12 Bhola is a witness of seizure of three sealed packets Ex. P-14, in the hospital P. W. 13 Mulayam Singh. Sarpanch of the village Paderiya had conducted the test identification of the gold ornaments, which were identified by Babulal Jam (P. W. 20 ). P. W. 14 Dr. T. M. Choudhary has had autopsy on the dead body of the deceased and his report is Ex. P-17. P. W. 15 Bhoopat is a witness oftdentifl caption of his Takawar, which he had mortgaged with P. W. 20 Babulal Jam and were stolen from his house. P. W. 17 Laltibai is a hostile witness. P. W. 18 Dinesh Prasad Tiwari. Station House officer has recorded Merg intimation about the recovery of the dead body and recovery of the dead body from the Nala and prepared the Panchanama. P. W. 19 Raghveer Singh. Head Constable had recorded Rojnamcha Sanha about the missing of deceased Rakesh. P. W. 20 Babulal Jam is the father of the deceased. P. W. 21 B. K. Jam Sub Inspector of Police is a witness of seizure, of register of mortgage of the articles maintained by complainant Babulal Jam (P. W. 20 ). P. W. 22 Madan Dubey is the 1. 0. P. W. 20 Babulal Jam is the father of the deceased. P. W. 21 B. K. Jam Sub Inspector of Police is a witness of seizure, of register of mortgage of the articles maintained by complainant Babulal Jam (P. W. 20 ). P. W. 22 Madan Dubey is the 1. 0. of this case. P. W. 23. Budh Singh Yadav had recorded the Merg intimation at the Bamnhori outpost arid sent the same to the Bakswaha Police Station and had seized sealed packets containing the clothes of deceased Rakesh from the hospital. Complainant Babulal Jam had also handed over a written report about the missing of the articles of his house to him vide Ex. P-i. The defence was of innosence and false implication. The appellants also examined D. W. 1 Malue in support of their defence that they were of their village home on the date of incident. Sunita (C. W. 1) a minor daughter of complainant Babulal Jam (P. W. 20), aged about 10 years, was also examined as a Court Witness and she deposed that on the date of incident appellant Kripal Singh had come to call the deceased Rakesh and thereafter Rakesh left the house in his company. She also identified appellant Kripal Singh during trial in the Trial Court. The trial Court on consideration of the evidence convicted appellant Kripal Singh under Section 364 of the Indian Penal Code and sentenced him to undergo R. I. for seven years and to pay a fine of Rs. 1. 000/- in default to undergo R. I. for further six months. Appellant Hirdey Singh was convicted under Sections 302/34 and 394 and u/s 364 of the Indian Penal Code and sentenced to imprisonment for life and R. I. for seven years and to pay a fine of Rs. 1. 000/- in default to undergo R. I. for six months on each count. Shri Rakesh Jam learned counsel for the appellant Kripal Singh, has contended that there is no legal evidence to sustain the conviction of appellant Kripal Singh. Appellant Kripal Singh has been convicted relying upon the evidence of P. W. 1 Nanhe Bhai, P. W. 2 Kashiram. P. W. 4 Shikhar Chandra Jam and Court witness Sunita. Shri Rakesh Jam learned counsel for the appellant Kripal Singh, has contended that there is no legal evidence to sustain the conviction of appellant Kripal Singh. Appellant Kripal Singh has been convicted relying upon the evidence of P. W. 1 Nanhe Bhai, P. W. 2 Kashiram. P. W. 4 Shikhar Chandra Jam and Court witness Sunita. P. W. 1 Nanhe Bhai and P. W. 2 Kashiram claimed to have identified the appellant in the mid night when they had gone to search their cattle but they kept mum and did not inform anybody or even the father of the deceased when he was searching for Rakesh. P. W. 4 Shtkhar Chandra Jam claimed to have seen the appellant on the date of incident in the evening while he was returning home from Sunwaha. In the next morning he learnt about the missing of the deceased, but he too did riot speak to anybody that he had seen the deceased in the company of appellant Kripal Singh. The evidence of P. W. 1 Nanhe Bhai, P. W. 2 Kashiram and P. W. 4 Shikhar Chandra Jam is not worthy of credence. As regards the evidence of Court Witness Sunita she identified the appellant for the first time in the Court. The appellant was arrested on 28-51984 vide Ex. p. 24, but the police took no steps to arrange test identification parade of this appellant. This appellant was identified by Court Witness for the first time in the Court almost 1-1/2 years after the incident. The appellant was on visiting term with the deceased. Therefore there was no difficulty for Sunita in identify Ying this appellant in Court. But in absence of any discription of the appellant in the Rojnamacha Sanha, which was lodged by the complainant on the information of Sunita, no reliance can be placed on the identification of the appellant by Court Witness Sunita that he is the person who had come to her house and the deceased had left in his company. Moreover, the identification of an accused for the first time in the Court without being tested by prior test identification parade is valueless. In this connection reference may be made in the case of State (Delhi Admn.) v. V. C. Shukla1. The conviction and sentence of the appellant Kripal Singh therefore cannot be sustained. Accordingly it is set aside. Moreover, the identification of an accused for the first time in the Court without being tested by prior test identification parade is valueless. In this connection reference may be made in the case of State (Delhi Admn.) v. V. C. Shukla1. The conviction and sentence of the appellant Kripal Singh therefore cannot be sustained. Accordingly it is set aside. ( 7 ) AS regards appellant Hirday Singh. Shri Rajendra Singh, Senior Advocate has contended that the appellant has been convicted on the basis of presumption on account of the recovery of the articles. Neither any neighbour nor any villager of the appellants village is a witness to the alleged recovery. The recovery was not made from the possession of the appellant as the other members of the family also reside in the house. The prosecution has not been able to prove robbery of the articles. There is nothing in the Rojnamcha Sanha lodged by the complainant Babulal Jam (P. W. 20) that the deceased had taken away any articles along with him when he left the house. A report was however lodged about the missing of the articles ten days after missing of the deceased Rakesh from the house. It has come in evidence that the deceased was also handling the business of his father the complainant Babulal Jam, and it is possible that the deceased might have dealt with the or naments. Therefore, the conviction, of the appellants Hirday Singh cannot be sustained. ( 8 ) THERE is nothing in the prosecution evidence that the appellant had shared common intention with the other accused persons to commit the murder of the deceased Rakesh nor there is any evidence that the appellant committed robbery of the ornaments of the deceased Rakesh. The conviction of appellant Hirday u/ss 302/34, 394 and 364 of I. P. C. on the basis of presumption under Section 114 of the Indian Evidence Act, on account of merely the recovery of the articles, is not sustainable in law. The conviction of appellant Hirday u/ss 302/34, 394 and 364 of I. P. C. on the basis of presumption under Section 114 of the Indian Evidence Act, on account of merely the recovery of the articles, is not sustainable in law. ( 9 ) THE Apex Court in an identical case in Nagappa Dondiba Kalal v. State of Kamataka2 acquitted the appellant Dondiba for the offences under Sections 302 and 394 I. P. C. but convicted him under Section 411 I. P. C. , relying on the circumstantial evidence as to the seizure of some gold ornaments of the deceased at the instance of the appellant reversing the conviction and sentence recorded by the High Court under Sections 302 and 394 I. P. C. against the appellant who was originally acquitted by the trial Court of all of fences. While repelling the contention of the counsel for the State that as the accused had given no explanation regarding possession of ornaments belonging to the deceased an inference should be drawn that he must have murdered the deceased the Apex Court observed:"we are, however, unable to draw any such inference. It is for the prosecution to prove its case affirmatively and it cannot gain any strength from the conduct of the accused in remaining silent. In these circumstances we do not find any evidence to support the conviction of the appellant under section 302 or under Section 394 but having regard to the evidence led by the prosecution a case under Section 411 of I. P. C. has been clearly made out. " ( 10 ) THE Apex Court yet hi Amar Singh and others v. State of Madhya Pradesh3, conviction of the appellant Amar Singh (on the basis of presumption under Section 114 of the Evidence Act) under Section 395 of the I. P. C. on the basis of recovery of the articles soon after the commission of dacoity from the possession of the appellant was altered to one under Section 412 I. P. C. and sentenced was reduced from four years to two years R. I. ( 11 ) YET, in the case of Satish Chandra and another v. State of U. P. 4, where a Munim of the factory was murdered and was robbed a sum of Rs. 8. 8. 800/- in currency notes kept in bundles which were withdrawn from the bank on the previous day were recovered from the appellants Satish Chandra and Vishnu Shankar and the notes recovered from them had tallied with the numbers mentioned in the F. I. R The appellants were acquitted by the trial Court but in appeal against acquittal of the appellants before the High Court preferred by the State the High Court convicted appellants Satish and Vishnu Shankar under Section 411 I. P. C. and sentenced each of them to three years RI. In appeal preferred by appellants Satish and Vishnu under Article 136 of the Constitution of India before the Apex Court the Apex Court upheld the conviction and sentence of the appellants. ( 12 ) TAKING, the evidence as it stands there is nothing to connect the appellant Hirday Singh with the murder of the deceased or even with any assault the appellant may have committed on the deceased or having robbed the deceased of his ornaments. The conviction and sentence of the appellant Hirday Singh, under Section 302/34 and Section 394 I. P. C. , therefore, cannot be sustained on the basis of presumption under Section 114 of the Evidence Act on account of the recovery of the ornaments at his instance. They are accordingly set aside. ( 13 ) HOWEVER, in view of the fact that the articles belonging to the deceased and his father complainant Babulal Jam were recovered from the possession of appellant Hirday Singh and no explanation for the said possession has been offered by him. A presumption under Section 114 would arise against him and he is therefore, liable to be convicted under Section 4-11 of the I. P. C. However, the appellant Hirday Singh has already been in custody for about 2-1/2 years and therefore, ends of justice would meet if he is sentenced to imprisonment already undergone by him as also to pay fine of Rs. 5. 000/- ( 14 ) FOR the reasons mentioned in para 6 of the judgment, the appeal of the appellant Kripal Singh is allowed and he is acquitted of the offence u/s 364 I. P. C. He is on bail and his bail bonds are discharged. ( 15 ) AS regards appellant Harday Singh, he has, already served out 2-1/2 years of imprisonment. ( 15 ) AS regards appellant Harday Singh, he has, already served out 2-1/2 years of imprisonment. Therefore, he is sentenced sentenced to the period already undergone with a fine of Rs. 5,000/- in default to undergo RI. for six months. Let the recovered ornaments be returned to complainant Babulal Jam as there is no other claimant of the ornaments. Appeals allowed accordingly. .