JUDGMENT 1. - This jail appeal is directed against the judgment dated 15.11.1997 passed by learned Additional Sessions Judge No. 2, Udaipur in Sessions Case No. 6/96 by which accused-appellant-Thawra has been convicted u/s. 302 IPC and sentenced to life imprisonment with a fine of Rs. 1,000/- and in default to further undergo one month's rigorous imprisonment. He has also been convicted u/s. 459 and sentenced to five years rigorous imprisonment with a fine of Rs. 1,000/- and in default to further undergo one months' rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. The concise facts according to the first information report Ex.P/12 lodged on 20.10.1995 by PW-20 Laxmi Chand are that on 19.10.1995 Smt. Gendi Bai was sleeping in her house with silver kadas in her legs. Some unknown person killed her and took away one silver kada after cutting one leg. Autopsy on the dead body was done by PW-17 Dr. Dinesh Rajwania and during investigation Thawra accused-appellant was arrested on 4.11.1995 through arrest memo Ex.P/30. He gave a voluntary disclosure statement Ex.P/31 u/s. 27 of the Evidence Act on the same day at 4.00 p.m. and in consequence thereof got one silver kada recorded from his residential room at 5.15 p.m. in presence of PW-16 Gangaram and PW-24 Madan Das which was sealed then and there. Identification parade of above silver kada was conducted by PW-26 Sunderlal Civil Judge (JD) Sarada in which Sohan Bai, Nawli Bai, Ganeshlal and Heeralal have identified three pieces of silver kada allegedly recovered at the instance of the accused-appellant. On this solitary evidence learned Trial Court has convicted and sentenced the accused-appellant. 3. Accused-appellant-Thawra has challenged the conviction and sentence by filing jail appeal in which Shri K.K. Shah has been appointed as amicus curiae. Submission of Shri Shah were that there is no direct evidence in this case and solitary circumstance of recovery of silver kada of deceased at the instance of the accused has been relied upon in which also there are many contradiction and inconsistencies. 4. On the other hand learned Public Prosecutor has supported the judgment and sentence awarded by the Trial Court. 5. So far as homicidal death of Gendi Bai is concerned, almost all the prosecution witness have deposed that she was found murdered in her house in her intervening night of 19/20.10.1995. PW-17 Dr. 4. On the other hand learned Public Prosecutor has supported the judgment and sentence awarded by the Trial Court. 5. So far as homicidal death of Gendi Bai is concerned, almost all the prosecution witness have deposed that she was found murdered in her house in her intervening night of 19/20.10.1995. PW-17 Dr. Dinesh Rajwania who conducted post-mortem on the dead body has also deposed that at 12.45 a.m. on 20.10.1995 he examined the dead body of Gendi Bai and found following ante-mortem injuries on her person : 1. Lacerated wound 2 cm x 1 cm x scalp deep present over forehead on right side. 2. Bruise 3 x 2 cm below and lateral to lateral angle of right eye. 3. Bruise 3 x 2 cm right side face over right mandibular joint. 4. Three bruises of varrying size 4 cm x 2 cm x 1 cm x 0.5 cm and 1 cm x 0.5 cm left side neck above downwards. 5. Bruise 3 cm x 2 cm on right side of neck. 6. There is complete amputation of at middle of right leg, margins are irregular. Amputed part of right leg is completely separated from body. 7. There is fracture of left tibia lower part of lower end near ankle joint. 6. Injuries No. 5 and 6 were cumulatively sufficient to cause death. Post-mortem report Ex.P/8 was prepared and proved by this witness. 7. So far as complicity of the accused in the crime is concerned, PW-16 Gangaram and PW-24 Madan Das are the witnesses in whose presence accused-appellant has allegedly got the three pieces of silver kada recovered from his house. But there were material contradictions in their statements. 8. PW-16 Gangaram has admitted in his cross-examination that silver kada was recovered three or four days after the death of old lady. Similarly, PW-24 Madan Das has also deposed that the kada was recovered about 4-5 days after the death of old lady. On the contrary the occurrence took place in the intervening night of 19/20.10.1995, accused-appellant was arrested and recovery was made on 4.11.1995. PW-25 Ramlal Station House Officer and Investigating Officer has also stated that the accused was arrested and recovery was made on 4.11.1995. 9. On the contrary the occurrence took place in the intervening night of 19/20.10.1995, accused-appellant was arrested and recovery was made on 4.11.1995. PW-25 Ramlal Station House Officer and Investigating Officer has also stated that the accused was arrested and recovery was made on 4.11.1995. 9. According to seizure memo Ex.P/7 article was recovered at 5.15 p.m. whereas according to PW-16 Gangaram the article was recovered about 7.00- 8.00 p.m. and according to PW-24 Madan Das the article was recovered in the morning at about 8.00 or 9.00. The above contradictions, inherent inconsistencies and infirmities are material affecting intrinsic merit of the factum of recovery. 10. The other submission of learned amicus curiae was that the house from which the article was recovered was not in exclusive possession of the accused-appellant. His parents as also other members of the family were also residing in the house and the possibility of some of them placing silver kada in the house cannot be ruled out. In this respect PW-25 Ramlal has admitted that alongwith Thawra his father and brother were also residing in the same house. Therefore, exclusive possession of the article recovered cannot be imputed to the accused-appellant. 11. So far as identification of the articles are concerned, PW-26 Sunderlal Civil Judge (JD) conducted the identification parade of the article and prepared memo Ex.P/6. All the four witnesses have identified the article which was silver kada having three pieces. The article including in it were only two silver kada which were not in pieces. PW-26 Sunderlal has stated that the silver kadas of the nature to be identified could not be procured for mixing in it to conduct the identification of the items. When the article was recovered on 4.11.1995 it has come into the knowledge of the witnesses that silver kada so removed from the leg of the dead body has been recovered in three pieces. Unless and until silver kada in the three pieces were added, the identification so conducted was faulty and of no use. 12. No other evidence was available on the file connecting the accused-appellant with the crime and so called recovery made at the instance of the accused is full of infirmities and inconsistencies not inspiring confidence. There was no material on record to connect the accused with the crime. 13. 12. No other evidence was available on the file connecting the accused-appellant with the crime and so called recovery made at the instance of the accused is full of infirmities and inconsistencies not inspiring confidence. There was no material on record to connect the accused with the crime. 13. Therefore, we set aside the conviction and sentence awarded to the accused-appellant, accept this appeal and acquit accused-appellant-Thawra of the charges. He is in jail, if not required in any other matter, be released forthwith.Appeal allowed. *******