JUDGMENT 1. - This is an appeal against the judgment dated 26.8.1981 passed by Sessions Judge, Balotra convicting the appellants Kishana and Aab Singh for offence under section 302 Indian Penal Code and sentencing each of them to imprisonment for life and pay a fine of Rs. 500/- and in default to further undergo six months rigorous imprisonment. The appellants have also been convicted for offence under section 460 Indian Penal Code and sentenced to 10 years rigorous imprisonment and to pay a fine of Rs. 500/-, indefault to further undergo six months rigorous imprisonment. 2. The prosecution case in brief is that PW/34 Hanuman lodged a F.I.R. at police station Dhorimana on 30.6.1980 at about 9 A.M. stating interalia that in the early morning PW/5 Peera informed him that his son PW/8 Isra who used to graze catties was sleeping with deceased Mst. Dapu in the 'Dhani'. As per the saying of Isgra, in the night two persons entered in the 'Dhani' of Dapu. They killed Mst. Dapu by strangulation. Thereafter, they took away the ornaments and cash. They slapped him and put a cloth in his mouth. PW/5 Peera also stated that when Ishra approached to him he was weeping. Peera thereafter went to PW/1 Durgaram, PW/2 Dana Ram and PW/18 Shankar Puri and apprised them of the incident. All of them went to 'Dhani' of Mst. Dapu. They found her dead. On this information police registered a case for offence under section 302 and proceeded with the investigation. Police prepared the inquest and the body of, Mst. Dapu was sent for postmortem. The accused persons were arrested and recovery of ornaments were made in pursuance of the information given by them. After usual investigation, police laid a charge sheet against the two accused persons for offence under Sections 302, 458 and 460 Indian Penal Code. 3. The accused denied the charge and claimed trial. The prosecution in support examined 39 witnesses. In statement under section 313 of Code of Criminal Procedure, the accused persons stated that the evidence produced against them by the prosecution is false. The accused persons examined DW/1 Chiman Das and DW/2 Pabu Singh. It was stated by them that at the time of incident accused Kishana was in village Pungal of Distt. Bikaner whereas accused Aab Singh was in village pita of District Jaisalmer. The accused persons examined DW/1 Chiman Das and DW/2 Pabu Singh. It was stated by them that at the time of incident accused Kishana was in village Pungal of Distt. Bikaner whereas accused Aab Singh was in village pita of District Jaisalmer. The learned trial court found the circumstantial evidence sufficient to hold the petitioner guilty of the murder of Mst. Dapu. Accordingly, both the accused persons have been convicted and sentenced as mentioned above. 4. PW/8 Ishra has stated that while he was sleeping with deceased Dapu in the 'Dhani', two persons entered and they killed Mst. Dapu by strangulation. PW/1 Durga Ram, PW/2 Dana Ram, PW/5 Peera and PW/18 Shankar Puri have stated that when they reached on the spot, they found Mst. Dapu dead. They opined that she was killed by strangulation. PW/35 Dr. Rajendra Mehta has stated that on 30.6.1980, he was posted as medical officer, Dhorimana. He conducted the postmortem of the body of the deceased Mst. Dapu vide Ex. P. 28. He found following injuries on the person: (1) 5 Bruises on the right side of neck of the fingers having a direction of downwards and outwards. The size of bruises are (i) 4.5 x 2.0 cms (ii) 5.0 x 1.5 cms (iii) 4.5 x 1.5 cms (iv) 3.0 x 1.0 cms (v) 2.0 x 1.0 cms. from upwards to downwards. There is crescentic abrasions on outwards and downwards direction to the bruises Nos. 2, 3, 4 of the 1.5-1.0 cms. (2) 4 Bruises on the left side of neck of the fingers and having direction of downwards, and outwards. The size of bruises from upwards to downwards (i) 5.0 x 1.5 (ii) 4.0 x 1.5 (iii) 4.0 x 1.0 (iv) 2.5 x 1.0 cms. There are crescentic abrasions to downwards direction to the bruises of size 1.5 cm to 1.0 cms. Abrasions: On the right forearm lower ⅔ of right forearm 7 in number and size 3.0 x ⅕ cms on the Lt. lower ⅔ of Lt. forearm. Abrasions 4 in nose and size of 2 / 5 x ⅕ to ⅕ x 1.0 cms. 5. In the opinion of the doctor, the cause of death was Asphyxia due to the strangulation. Thus, we hold that Mst. Dapu died of homicidal death. 6. lower ⅔ of Lt. forearm. Abrasions 4 in nose and size of 2 / 5 x ⅕ to ⅕ x 1.0 cms. 5. In the opinion of the doctor, the cause of death was Asphyxia due to the strangulation. Thus, we hold that Mst. Dapu died of homicidal death. 6. The prosecution has relied upon the direct evidence of PW/8 Ishra and the following piece of circumstantial evidence: (a) Appellants accused Kishana and Aab Singh were seen near the 'Dhani' of deceased Mst. Dapu just few days prior to the date of occurrence. (b) Recovery of ornaments of deceased Mst. Dapu from the possession of the accused Kishana and Aab Singh. (c) The poor financial condition and conduct of the accused persons. PW/8 ISHRA 7. This witness is aged 12 years He has stated that he used to graze she-goats and stay with deceased Mst. Dapu. He also stated that at the time of incident, he was sleeping with deceased Mst. Dapu. Two miscreants entered in the 'Dhani' and they killed Mst. Dapu by strangulation. He identified both the accused persons in the Court. Accused Kishana was put to identification vide Ex. P 5 conducted by PW/39 Narayan Lal Verma, Munsiff and Judicial Magistrate, Banner. The witness could not identify the accused Kishana in the identification parade. Accused Aab Singh was put to identification vide Ex. P. 6 conducted by PW/37 Sukhraj Bhandari, Judicial Magistrate, Barmer. He also did not identified accused Aab Singh during the identification parade. As this witness did not identify the accused persons Kishana and Aab Singh in the identification parade. his evidence is of no avail to the prosecution. It is thus held that there is no direct evidence to connect the appellants Kishana and Aab Singh with the alleged crime.CIRCUMSTANTIAL EVIDENCE. 8. The prosecution in order to establish the circumstance that accused appellants Aab Singh and Kishana were seen in the vicinity of the 'Dhani' of deceased Mst. Dapu few days prior to the date of incident has produced PW/3 Vala Ram. PW/4 Rama, PW/5 Peera, PW/9 Dalu, PW/16 Khiya Ram and PW/20 Sardara Ram. 9. PW/3 Vala Ram has stated that he has seen both the accused persons present in the court outside the Kotla station. He also stated that alongwith other friends both the accused persons were sitting at the 'Pyau'. He has also given the description of both the accused persons. 9. PW/3 Vala Ram has stated that he has seen both the accused persons present in the court outside the Kotla station. He also stated that alongwith other friends both the accused persons were sitting at the 'Pyau'. He has also given the description of both the accused persons. Two days thereafter, he heard that Mst. Dapu has been killed. Inspite of the fact that the accused persons were not known to this witness no identification parade was arranged to get the witnesses identified by PW/3 Vala Ram. In view of this, the evidence of this witness is of no assistance to the prosecution. 10. PW/4 Rama stated that three days prior to the date of incident, two accused persons present in the court visited his 'Dhani'. They wanted to stay in his 'Dhani' in the night. On account of scarcity of accommodation, he declined their request. In the cross-examination, he has stated that he cannot say that the accused persons present in the court are the same persons who had approached to him for providing accommodation to stay in the night. As this witness has not identified the accused persons in court, the evidence of this witness is also of no assistance to the prosecution. PW/5 Peera has stated that three days prior to the incident two accused persons present in the court approached to him with a view to take shelter in the 'Dhani'. for a night. It is stated that Mst. Dapu had declined the said request. They forcibly entered in the hut of Mst. Dapu, PW/8 Ishra came to him and reported that two persons had forcibly entered in the 'Dhani' of the Mst. Dapu. He thereafter arrived at the 'Dhani' and asked both the accused persons present in the court to accompany him to his 'Dhani' where he will provide the accommodation. But they did not move. They slept outside the 'Dhani' on a cot. He returned to his 'Dhani'. In the morning both the accused persons came to his 'Dhani'. Peera identified accused Kishana vide Ex. P. 5 conducted by PW/39 Narayan Lal Verma, Munsiff and Judicial Magistrate, Barmer. Aab Singh was identified vide Ex. P. 6 conducted by PW/37 Sukhraj Bandhari, Judicial Magistrate, Barmer. PW/9 Dalu stated that he had seen two accused persons present in the court at Aalamji ka Than. Peera identified accused Kishana vide Ex. P. 5 conducted by PW/39 Narayan Lal Verma, Munsiff and Judicial Magistrate, Barmer. Aab Singh was identified vide Ex. P. 6 conducted by PW/37 Sukhraj Bandhari, Judicial Magistrate, Barmer. PW/9 Dalu stated that he had seen two accused persons present in the court at Aalamji ka Than. After few days, he was told by Ishra that about 4-5 days back Mst. Dapu has been killed. He admitted that he could not identify both the accused persons in the identification parade as he was not feeling well at that time. As the witness failed to identify both the accused persons during the identification parade, testimony of this witness is of no assistance to the prosecution. PW/16 Khiya Ram and PW/20 Sardara Ram had also stated that they had seen the accused persons in the vicinity prior to the death of Mst. Dapu. However, the evidence of both the witnesses is of no assistance for the simple reason that these witnesses were not called for identification of the accused appellant Kishana and Aab Singh. From the aforesaid discussion, except the evidence of PW/5 Peera, there is no satisfactory evidence to show that the accused persons were seen in the vicinity of the 'Dhani' of the deceased Mst. Dapu. This circumstance even if believed does not positively point towards the guilt of the accused. Thus the circumstances cannot be said to be of conclusive nature. The trial court has committed on obvious error in considering the circumstances for connecting the accused persons with the alleged crime.11. Recovery OP Ornaments: The evidence of recovery of incriminating articles from the possession of appellant Kishana. The appellant Kishana was arrested on 22nd July, 1980. On 27th July, 1980 while in police custody after making a disclosure statement vide Ex. P. 30 to PW/36 Bohri Das, investigating officer led to the recovery of ornaments namely golden Phool and golden 'taunti' in presence of the PW/10 Nagji and PW/18 Shankar Puri. The declaration memo Ex. P. 30 and recovery memo Ex. P. 7 have been proved by the testimony of PW/36 Bohri Das and two other constables referred to as above. The identification proceedings for the ornaments were conducted by PW/33 Rakesh Kumar Bansal, Judicial Magistrate, Barmer on 27.7.1980 vide Ex. P. 28. The ornaments were identified that of deceased Mst. Dapu by PW/9 Dalu and PW/34 Hanuman. P. 7 have been proved by the testimony of PW/36 Bohri Das and two other constables referred to as above. The identification proceedings for the ornaments were conducted by PW/33 Rakesh Kumar Bansal, Judicial Magistrate, Barmer on 27.7.1980 vide Ex. P. 28. The ornaments were identified that of deceased Mst. Dapu by PW/9 Dalu and PW/34 Hanuman. As far as PW/9 Dalu is concerned, he did not identify the ornaments in the Court. PW/34 Hanuman identified the ornaments in the identification proceedings as well as in the court. Thus the prosecution has succeeded in establishing possession of the ornaments of the deceased Mst. Dapu. The accused also gave information to PW/32 Gulam Hussain regarding selling of ornaments to gold smith in the city of Jodhpur through PW/19 Bhanwara Nai. The information has been recorded as Ex. P20 dated 1.8.1980. PW/19 Bhanwara Nai stated that the ornaments were sold to PW/21 Purshottam. The said witness stated that he had purchased the ornaments from the accused Kishana. He however stated that he melted those ornaments. An ingot was recovered from him vide Ex. P. 17 in presence of PW/17 Ram Swaroop. An information was given to PW/36 Bhori Das vide Ex. P. 31 dated 28.7.1980 to the effect that he has purchased certain cloths from the money received from the selling of the ornaments. The recovery of the cloths has been made vide Ex. P 8 dated 2.8.1980. Another information was give to PW/36 Bhori Das vide Ex. P 32 on 28.7.1980 of purchase of Kirana from the money which he received after selling the ornaments. 12. It is contended by Mr. Sandeep Mehta, the learned Counsel for the petitioner that so far as the recovery of ingot, cloths and the Kirana is concerned, it does not in any way connect the appellant Kishana with the alleged crime. In our view, the learned Counsel is right in his contention. The only evidence which remains against the appellant so far as recovery is concerned is of golden phool and tauntis.13. It is next contended by Shri Sandeep Mehta that the date of incident is 2nd June, 1980, the recovery is alleged to have been made on 28.7.1980. The identification was arranged one month thereafter i.e. 27.8.1980. It is submitted that the recovery cannot be said to be a recent recovery. It is next contended by Shri Sandeep Mehta that the date of incident is 2nd June, 1980, the recovery is alleged to have been made on 28.7.1980. The identification was arranged one month thereafter i.e. 27.8.1980. It is submitted that the recovery cannot be said to be a recent recovery. As such no presumption under section 114 illustration (a) of Indian Evidence Act can be drawn that he killed Mst. Dapu. In alternate it is submitted that at the most appellant Kishana can be said to be person of receiving stolen articles. Mr. Sandeep Mehta in support of his submission has relied upon the decision of the Apex Court in ' Union Territory of Goa v. Boaventura D'Souza and Anr.' reported in 1993 S.C. Page 1199 . He has also relied decision of the Apex Court in 'Babuda v. State of Rajasthan', AIR 1992 Supreme Court 2091 and 'Nagappa Dondiba Kalal v. State of Karnataka reported in 1980 S.C. 1753 . On the other hand it is contended by the learned Public Prosecutor that the incident is on 2nd June, 1980 and the accused Kishana was arrested on 22nd July, 1980. The identification parade was arranged within five days i.e. on 27.7.1980. In view of this it is a fit case in which presumption can be drawn under Section 114 illustration (a) of the Evidence Act to hold him guilty of murder of Mst. Dapu. It is not in dispute that the recovery has been made after more than one and a half month from the date of incident. The possibility of change of recovered articles in more than one hand cannot be ruled out. In these circumstances, the only inference can be drawn is that the person from whom the ornaments have been recovered is a person who is received of stolen articles.AAB SINGH14. The appellant Aab Singh was arrested on 28.7.1980. The accused appellant Aab Singh while in custody gave information to PW/32 Gulam Hussain vide Ex. P21 on 2.8.1980 that he has sold the golden phool, taunti and Hardia to gold-smith in Sarrafa Bazaar through PW/19 Bhanwara Nai. Bhanwara Nai disclosed that the ornaments were sold to PW/21 Purshottam Das and PW/24 Jaichand vide Ex. P. 22. The accused took the police party to the shop of Bhanwara Nai. P21 on 2.8.1980 that he has sold the golden phool, taunti and Hardia to gold-smith in Sarrafa Bazaar through PW/19 Bhanwara Nai. Bhanwara Nai disclosed that the ornaments were sold to PW/21 Purshottam Das and PW/24 Jaichand vide Ex. P. 22. The accused took the police party to the shop of Bhanwara Nai. It is not necessary to discuss the evidence in the regard in detail as it is suffice to say that the ornaments were melted and the gold-smith produced the ingot. Therefore there is no reliable evidence of recovery from the accused Aab Singh to connect him with the alleged crime. Thus we hold that there is no evidence of recovery against accused appellant Aab Singh.15. In view of the aforesaid, we hold that the prosecution has failed to establish by a positive evidence that accused appellants committed murder of Mst. Dapu. However appellant Kishana is held guilty of offence under Section 411 Indian Penal Code for receiving the stolen articles.16. Consequently, the appeal is partly allowed. The conviction of both the appellants Kishana and Aab Singh for offence under Section 302, 460 and 458 Indian Penal Code is quashed and set aside. Accused Kishana is convicted for offence under Section 411 Indian Penal Code. He is awarded the sentence to the period already undergone. Appellants Kishan Singh and Aab Singh are on bail, their bail bonds stands discharged.Appeal allowed in part. *******