JUDGMENT 1. - This appeal has been filed through jail by accused appellant Kishanlal alias Kana alias Kanhaiyalal challenging the judgment dated 6.8.1999 passed by Additional Sessions Judge No. 2 Chittorgarh in Sessions Case No. 98/98 (23/97) by which he has been convicted under Section 302 Indian Penal Code and sentenced to life imprisonment with a fine of Rs. 1000/- and in default to further undergo two year's simple imprisonment. He has also been convicted under Section 392 Indian Penal Code and sentenced to five years' rigorous imprisonment with a fine of Rs. 1000/- and in default to further undergo one year's rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. The charges were that on 26.6.1991 accused appellant Kishanlal committed murder of Mst. Chandi and robed her of sliver bangles worn on her legs as also gold madalia. Upon pleading not guilty and claiming trial prosecution examined witnesses and exhibited 23 documents. In statement given under Section 313 Criminal Procedure Code accused denied all the incriminating averments against him and pleaded that he has been falsely roped in. Thereafter the learned trial court after discussing ocular and documentary evidence convicted and sentenced the accused appellant as stated above. 3. As this was a jail appeal, nobody appeared on behalf of accused appellant, therefore, Mr. Sandeep Shah, learned counsel has been appointed as amicus curiae who took us though the evidence thoroughly and pointed out some significant infirmities in the impugned judgment which went to the root of the case. 4. On the other hand, learned Public Prosecutor has supported the impugned judgment. 5. According to the prosecution case on 26.6.1991 Mst. Chandi daughter of Jeetu Gayari aged about 17 years at about sunset sent to village Pond for washing her hands and face but did not return thereafter. Therefore, she was searched for two days but of no avail and on 28.6.1991 at 9.00 A.M. her dead body was found near the Talai which was identified to be of Chandi but her silver bangles were removed after cutting her legs. Therefore, on 28.6.1991 at 9.15 A.M. Ex.P/10 FIR was lodged at police station. After autopsy of the dead body and preparation of site plan map etc. the matter was consigned to the record room as culprit could not be located. 6. On 17.10.1996 at 5.30 P.M. accused appellant Kishanlal was apprehended vide Ex.P/19. Therefore, on 28.6.1991 at 9.15 A.M. Ex.P/10 FIR was lodged at police station. After autopsy of the dead body and preparation of site plan map etc. the matter was consigned to the record room as culprit could not be located. 6. On 17.10.1996 at 5.30 P.M. accused appellant Kishanlal was apprehended vide Ex.P/19. He gave a disclosure statement under Section 27 of the Evidence Act on 18.10.1996 which is Ex.P/20 and disclosed that the golden pendal as also silver bangles which he robed from the dead body of Chandi was sold by him near Ghantaghar in Neemach City to a sarafa. In pursuance of Ex.P/20 and in presence of attesting witnesses Ladudas and Ramkishan on 22.10.1996 at 8.30 P.M. he took the police party to the shop of Chhajuram Kishanchand at Neemach and Mohanlal co-accused sitting on the shop was pointed out to be the person whom both these ornaments were sold who got the same recovered vide Ex.P/3. Both these articles were not sealed, yet relying upon above recovery the learned trial Court has convicted the accused appellant in a offence of murder. Though P.W.14 Prithvi Singh Hada, Station House Officer, who recovered ornaments from the shop of co-accused Mohanlal and prepared seizure memo Ex.P/3 deposed in court that he sealed the articles at the time of recovery and though this fact is also mentioned in Ex.P/3, yet impression of seal alleged to be used has not been made neither at seizure memo Ex.P/3 nor any separate memo of seal impression was prepared. Therefore, at the time of seizure it has not been proved that gold article so recovered was sealed. 7. The factum of madalia being worn by deceased at the time of occurrence is not mentioned in the FIR itself. However, the same has been allegedly recovered at the instance of the accused appellant from co-accused Mohanlal. Though challan has been filed against Mohan lal under Section 411 Indian Penal Code also but he was acquitted by the trial Court yet upon the same recovery this accused appellant has been convicted. The logic adopted by the trial court seems to be based on surmises and conjectures. Though challan has been filed against Mohan lal under Section 411 Indian Penal Code also but he was acquitted by the trial Court yet upon the same recovery this accused appellant has been convicted. The logic adopted by the trial court seems to be based on surmises and conjectures. The trial court has over looked the fact that murder and alleged robbery was committed on 26.6.1991 and alleged recovery was made on 22.10.1996, why shall Mohanlal or far that matter any person dealing in the ornaments will keep the silver bangles intact for five years. Nowhere it has been stated that silver bangles were pledged by the accused appellant to Mohanlal and, therefore, the pledgee was waiting for the pledger to come and to strike the deal. 8. Even assuming that the silver bangles were recovered from Mohanlal the same should have been sealed there and then. Even identification parade of the articles was conducted and three persons identified these articles vide memo Ex.P/23, yet that loses significance because these articles were not sealed at the time of seizure. The gold madalia was not mentioned in the FIR nor in police statement given under Section 161 Criminal Procedure Code, therefore, its recovery at the instance of accused appellant from Mohanlal pales into insignificance. 9. The attesting witnesses on the recovery memo Ex.P/3 were Ladudas and Ramksihan out of them Ladudas has not been examined whereas P.W.1 Ramkishan has been declared hostile. Though he has admitted his signatures on the seizure memo yet has not stated the name of the shop from where the articles were recovered and the name of the person who produced the articles at the instance of the accused appellant. 10. Even an axe, weapon of offence, was also allegedly recovered at the instance of the accused appellant vide seizure memo Ex.P/l in presence of Ramkishan and Ladudas. But that recovery also does not link the accused in the crime because the articles have neither been sent to the Forensic Science Laboratory nor any chemical report was sought from there. 11. There was not an iota of evidence available on the file implicating the accused appellant either in the murder or in robbery, yet he was convicted and sentenced without any logic or judicious approach. 11. There was not an iota of evidence available on the file implicating the accused appellant either in the murder or in robbery, yet he was convicted and sentenced without any logic or judicious approach. The appreciation of evidence done by the learned trial court was wholly unwarranted, improper and unimaginative in the context that of facts referred above. Hence we cannot uphold the same. 12. Consequently, this appeal is accepted, impugned judgment and conviction is set aside and accused appellant Kishanlal alias Kana alias Kanhaiyalal is acquitted. He is in jail, if not required in any other case, be set at liberty forthwith.Appeal allowed. *******