JUDGMENT 1. - These two appeals have been filed by the three appellants against a judgment dated 30.9.1999 passed by the learned Additional Sessions Judge, Sojat, District Pali. D.B. Criminal Jail Appeal No. 726/99 has been filed by the appellants-Lakh Singh and Ashok Kumar and D.B. Criminal Jail Appeal No. 555/2000 has been filed by the accused-Champa Ram. 2. The prosecution story, in nut-shell, is to the effect that during the night intervening 7th and 8th August, 1994 three robbers armed with weapons entered the house of the deceased-Umeda Ram situated in village `Hathiya Bera'. Umeda Ram, his son Jeeta Ram and other members of the family were sleeping in the house. They were attacked by the three robbers by sharp-edged weapons and Umeda Ram and his son Jeeta Ram were fatally wounded. Smt. Shanti W/o Ganesha Ram received grievous injuries by sharp edged weapons. Smt. Meera W/o said Umed Ram received grievous injuries by some blunt object. Smt. Soni W/o Jeeta Ram and Smt. Meera W/o Umeda Ram received other injuries by sharp-edged weapons. Smt. Soni as well as Smt. Meera also received simple injuries by blunt objects. The robbers succeeded in taking away lot many silver and gold ornaments with them. The police was informed at about 3.00 a.m. regarding the incident and the SHO, Police Station Sojat City, Gopal Singh PW-36 rushed to the spot with the other police personnel and recorded the `Purchabayan' Ex.P/41 of Smt. Soni at 3.30 a.m. on 8.8.1994. Smt. Soni stated that the armed robbers entered their house at about 1.00-1.30 a.m. and attacked her as well as other members of the family and took away silver and gold ornaments with them. A case u/ss. 458, 392, 307, 324, 323 & 460 of the IPC was registered. Umeda Ram and Jeeta Ram both succumbed to their injuries. The three appellants were arrested on 6.10.1994 and various ornaments were allegedly recovered from their possession and at there instance. During inves- tigation it came out that certain ornaments were disposed of by the culprits to a goldsmith Kamal Kishore. The said Kamal Kishore was arrested and certain ornaments were recovered from his possession. The ornaments as well as the appellants were put to identification and after the investigation was over, the three appellants as well as the said Kamal Kishore were challaned. The said Kamal Kishore was arrested and certain ornaments were recovered from his possession. The ornaments as well as the appellants were put to identification and after the investigation was over, the three appellants as well as the said Kamal Kishore were challaned. Kamal Kishore was charged for the offence punishable u/s. 411 of the IPC. The appellants were charged u/ss. 449, 302, 307, 326, 325, 324, 323 & 394 of the IPC. All the four pleaded not guilty. The prosecution side examined as many as 40 witnesses. 3. DW-1 Om Prakash and DW-2 Narendra were examined by the appellant-Ashok Kumar. Both deposed to the effect that the appellant-Ashok Kumar was brought by the police to the house of his maternal uncle in Nagaur. Both stated that the `motbirs' Madan Lal and Jai Kishan were not with the police people. Arguments were then heard and the judgment was delivered on 30.9.1999. All the four accused-persons were found guilty for the offences for which they were charged. For the offences u/ss. 302 & 449 of the IPC. The three appellants were awarded life imprisonment and a fine of Rs. 1,000/- each. On account of non-payment of fine, additional rigorous imprisonment for 6 months was awarded. For the offence punishable u/ss. 394 & 307 of the IPC each appellant, on each count, was awarded 7 years rigorous imprisonment and a fine of Rs. 100/-. On account of non-payment of fine, additional rigorous imprisonment for 2 months was awarded. Regarding the offence punishable u/ss. 326, 325, 324 & 323 of the IPC, each appellant has been awarded rigorous imprisonment for 5 years, 1 year, 6 months and 3 months respectively. For the offence punishable u/ss. 326 & 325 of the IPC, a fine of Rs. 100/- on each count to each appellant has been awarded and on account of non-payment of fine 2 months' additional rigorous imprisonment has been awarded. The fourth accused-Kamal Kishore was released u/s. 4 of the Probation of Offenders Act. Feeling aggrieved these two appeals have been preferred by the three appellants as indicated in the beginning. 4. We have heard the learned Amicus Curiae for the appellants and the learned Public Prosecutor for the State and have gone through the record of the cases. 5. The fourth accused-Kamal Kishore was released u/s. 4 of the Probation of Offenders Act. Feeling aggrieved these two appeals have been preferred by the three appellants as indicated in the beginning. 4. We have heard the learned Amicus Curiae for the appellants and the learned Public Prosecutor for the State and have gone through the record of the cases. 5. It is argued by the learned Amicus Curiae that the prosecution story is highly unbelievable and it is not believable that the witnesses could identify the culprits without any mistake. In this connection, it is argued that the incident occurred soonafter mid-night and the deposition of the witnesses to the effect that they were able to see the faces of the assailants is not acceptable. Further it is argued that the identification of property as well as of the accused-persons is not free from criticism and the conclusions drawn by the learned trial Court are unsustainable. 6. The learned Public Prosecutor, on the other hand, has argued that the injured PW-5 Bora Ram and PW-10 Shanti have identified the appellants in the Court and during identification proceedings also Smt. Soni, Smt. Shanti and Bora Ram were able to identify the culprits. It is submitted that no fault can be found with the test identification conducted in the case and the prosecution has been abled to bring home the charges against the appellants beyond any shadow of doubt. It may be pointed out, in the beginning, that so far as Smt. Meera is concerned, she has not been able to identify any appellants. In the test identification dated 18.10.1994, Smt. Soni and Bora Ram were able to identify Lakh Singh and Ashok Kumar only and in the test identification parade dated 22.2.1995, Smt. Shanti was able to identify all the three appellants, correctly. The recovery articles were identified by Smt. Soni as well as by Smt. Meera before PW-39 Rajendra Kishan, SDM on 29.11.1994. 7. PW-4 Smt. Meera, PW-5 Bora Ram and PW-10 Smt. Shanti are the members of the victim family, who were eye-witnesses to the occurrence. PW- 22 Siya Raghunath Dan, Civil Judge (Jr.Div.) and Judicial Magistrate, Sojat and PW-39 Rajendra Kishan, SDM, Sojat are the two Magistrates by whom the test identification in respect of the accused-persons and in respect of the recovered ornaments respectively were conducted. PW-6 Dr. Himanshu Joshi, PW-16 Dr. PW- 22 Siya Raghunath Dan, Civil Judge (Jr.Div.) and Judicial Magistrate, Sojat and PW-39 Rajendra Kishan, SDM, Sojat are the two Magistrates by whom the test identification in respect of the accused-persons and in respect of the recovered ornaments respectively were conducted. PW-6 Dr. Himanshu Joshi, PW-16 Dr. Kana Ram Chauhan and PW-20 Dr. Sumer Chand Jain have deposed regarding the autopsy report of the two deceased-Jeeta Ram and Umeda Ram and also regarding the injuries found on the persons of Smt. Soni, Smt. Shanti and Smt. Meera. PW-14 Poona Ram has been examined as a police photogra pher. PW-2 Jaisa Ram, PW-3 Binja Ram, PW-15 Bhanwar Lal, PW-18 Ghisha Ram and PW-19 Chotha Ram are the persons, who reached the place of incident. Soonafter the incident PW-17 Ramchandra, PW-28 Madan Lal Gurjar, PW-30 Amraram, PW-31 Harkaram and PW-38 Manohar Singh are `motbir' witnesses examined in connection with the alleged recoveries of incriminating things at the instance of the accused-persons. PW-32 Junjaram and PW-40 Babu Lal have deposed regarding the 4th accused-Kamal Kishore and are not relevant for discussion for the decision of these appeals. PW-23 Banshi Lal is a goldsmith, who has deposed that certain ornaments were got weighed by him at the request of the police. PW-24 Bagga Ram ASI, PW-25 Hindu Singh Constable, PW-26 Gopal Singh SHO, Sojat City; PW-27 Prahalad Singh Deputy Superintendent of Police, Sojat City, PW-33 Chhog Singh SHO, Police Station Udhyog Nagar, Basani; PW-34 Ranidan Singh Malkhana Incharge, Police Station Basani; PW-35 Alom Bux Constable and PW-36 Khushal Singh Head-Constable are police personnel, who either investigated the case or were associated with the case in other capacities. Other witnesses are `motbir' witnesses regarding innocuous events. 8. So far as the happening of the incident, during the night intervening 7th and 8th August, 1994 is concerned, there is no dispute. PW-4 Smt. Meera, PW-5 Bora Ram and PW-10 Smt. Shanti have narrated the incident in detail. PW-2 Jaisa Ram, PW-3 Binja Ram, PW-15 Bhanwar Lal, PW-18 Ghisha Ram and PW-19 Chotha Ram have also provided the corroboration regarding the robbery in question and have stated that they were the persons who reached the spot soonafter the incident. It is also not in dispute that Smt. Soni, Smt. Shanti and Smt. Meera received injuries during the incident and Jeeta Ram and his father Umeda Ram were done to death during the incident. PW-6 Dr. It is also not in dispute that Smt. Soni, Smt. Shanti and Smt. Meera received injuries during the incident and Jeeta Ram and his father Umeda Ram were done to death during the incident. PW-6 Dr. Himanshu Joshi has deposed that the post-mortem on the dead-body of Jeeta Ram was performed by him on 8.8.1994 and the post-mortem report Ex.P/11 was prepared by him. Dr. Joshi has stated that injuries by sharp-edged weapons were found on the neck left shoulder, left jaw and on the back side of head and other parts of the body and due to the blood-loss, which followed, the injured Jeeta Ram died. Dr. Sumer Chand Jain (PW-20) and Dr. Kana Ram Chauhan (PW-16) have both stated that they were the members of the Board of Doctors, who performed autopsy on the dead-body of Umeda Ram and prepared the post-mortem report Ex.P/30. According to Dr. Jain and Dr. Chauhan, there were injuries on the stomach and Jaw of Umeda Ram by sharp-edged weapons and the same proved fatal. Regarding the injuries received by Smt. Soni, Smt. Shanti and Smt. Meera, PW-16 Dr. Kana Ram Chauhan has deposed that there were injuries by blunt as well as sharp-edged weapons on the person of Smt. Soni and the same were recorded by him in injury report Ex.P/24. Regarding the injury to Smt. Shanti, Dr. Chauhan has stated that there was a stab wound on left rental region of Smt. Shanti measuring 3.5 cm x 4.7 cm x 2-3 cm. He found the patient in a bad shape and her blood pressure was not recordable. This injury was dangerous to life and was by sharp-edged weapon, which was recorded in Ex.P/26. Regarding Smt. Soni, Dr. Chauhan has stated that two injuries by sharp-edged weapon and three by blunt object were recovered by Smt. Soni vide injury report Ex.P/24. Regarding Smt. Meera, Dr. Chauhan has stated that there was an injury on the front of a parietal region by sharp-edged weapon measuring 3.5 c.m. x 2-3 cm. x bone deep. Three other injuries by blunt object were found, out of which the injury on the nose was found to be grievous in nature. There is no reason to disbelieve the deposition of three medical officers and it is more than evident that the injury which was received by Smt. Shanti was dangerous to her life. 9. x bone deep. Three other injuries by blunt object were found, out of which the injury on the nose was found to be grievous in nature. There is no reason to disbelieve the deposition of three medical officers and it is more than evident that the injury which was received by Smt. Shanti was dangerous to her life. 9. So far as the accused-persons are concerned, mainly there are three circumstances shown against them. There is evidence to the effect that the recoveries of their clothes as well as weapons of offence were effected at their instance and from their possession. Further the prosecution case is to the effect that certain ornaments, which were looted, were also recovered at the instance and from the possession of the appellants. Last, but not the least is the evidence to the effect that after their arrest, test identifications were conducted and according to the prosecution version the witnesses identified the culprits in the presence of a Judicial Magistrate. 10. So far as the circumstantial evidence to the effect that the clothes belonging to the accused-persons as well as the weapons of offence were recovered at the instance of the appellants, it would suffice to observe that neither the chemical examination report prepared by the FSL, Jaipur has been tendered in evidence nor the Police Constable Kharta Ram, who allegedly was handed-over the articles-in-question from the `malkhana' of the police station and allegedly delivered them at the FSL, Jaipur has been examined. According to PW-35 Alom Box and PW-36 Khushal Singh, the said articles were entrusted to Kharta Ram for onward transmission to the FSL, Jaipur, Unless Kharta Ram is examined, it cannot be said that the articles,which were sealed at the time of recovery, reached their destination intact. 11. Regarding the recovery of certain ornaments, at the instance of the accused-persons and their identification before PW-39 Rajendra Kishan is concerned, we are of the view that the evidence is too unsatisfactory to place any reliance. The Investigating Officer PW-27 Prahalad Singh, Deputy Super-intendent of Police in his deposition has stated that after the three appellants were arrested, they gave information which was recorded by him and thereafter ornaments were recovered by him from the possession and at the instance of the appellants. 12. The Investigating Officer PW-27 Prahalad Singh, Deputy Super-intendent of Police in his deposition has stated that after the three appellants were arrested, they gave information which was recorded by him and thereafter ornaments were recovered by him from the possession and at the instance of the appellants. 12. Regarding the accused-Lakh Singh, it has been deposed that he gave an information (Ex.P/68) on 8.10.1994 and on the next day on 9.10.1994 a golden `bore' and a pair of `paijeb' were allegedly recovered. Regarding the accused- Ashok Kumar, the prosecution evidence is to the effect that on 9.10.1994, he gave an information (Ex.P/85) and on 11.10.1994 two `tops', two `totiya' and four silver `kadas' were recovered vide Ex.P/86. Regarding Champa Ram, the prosecution case is to the effect that on 9.10.1994 Champa Ram furnished the information Ex.P/75 and on 11.10.1994 one `bore', two `totiya' and two `kankaniya' were recovered from his house situated at Boradevi Sagar vide Ex.P/79. Regarding the recoveries from Ashok Kumar and Champa Ram, PW-30 Amra Ram and PW-31 Harka Ram were the independent `motbirs', who allegedly were present at the time of the alleged recoveries. Both have been examined and both have denied that any such recoveries were made at the instance of the said accused-persons. Needless to say that without slightest independent corroboration, a finding of guilt cannot be arrived at in a serious case like this. Regarding the recoveries at the instance of the accused-Lakh Singh, the independent `motbir' PW-38 Manohar Singh has deposed that it was the house of some muslim from which the recoveries were effected. Learned Public Prosecutor has argued that the house was in the tenancy of the accused-Lakh Singh. We find that there is no evidence to the said effect and the landlord or anybody else has not been examined to prove that the accused was a tenant in the said house or was in possession of the same. For want of such evidence, this recovery also is not of any significance. 13. Regarding the identification of the appellants, PW-22 Siya Raghunath Dan the then Judicial Magistrate, Sojat has deposed that on 18.10.1994 the test identification in respect of the appellants was conducted by him at Sub-Jail, Sojat. The witness has deposed that Sint. Meera was not able to identify any of the appellants. According to the witness, Sint. 13. Regarding the identification of the appellants, PW-22 Siya Raghunath Dan the then Judicial Magistrate, Sojat has deposed that on 18.10.1994 the test identification in respect of the appellants was conducted by him at Sub-Jail, Sojat. The witness has deposed that Sint. Meera was not able to identify any of the appellants. According to the witness, Sint. Soni and PW-5 Bora Ram identified the appellants-Lakh Singh and Ashok Kumar correctly but they could not identify the appellant-Champa Ram. The witness has further stated that after more than 4 months on 22.2.1995 he again went to Sub-Jail, Sojat for the test identification of the appellants and on 22.2.1995 Smt. Shanti (PW-10) was able to identify all the three appellants correctly. We have carefully considered the matter in this respect and we are of the opinion that the test identification dated 22.2.1995 is nothing but a crude attempt on the part of the prosecution to make its case stronger against the appellant-Champa Ram, who could not be identified on 18.10.1994. In this connection it may be noted that the accused- persons were arrested on 6.10.1994 and the first identification was conducted on 18.10.1994. It is significant to note that after the first identification dated 18.10.1994, challan was filed on 19.12.1994 and after more than 2 months of filing of the challan the second test identification was got conducted from Smt. Shanti on 22.5.1995. During this period, the accused-appellants were attending the Court fortnightly and there is no evidence to show that after 18.10.1994 any of the appellants was kept `baparda'. From the documents Ex.P/67, Ex.P/70, Ex.P/72, Ex.P/76, Ex.P/81, Ex.P/84, Ex.P/86, Ex.P/90 and Ex.P/93, it is evident that during the period, prior to 18.10.1994 the appellants were kept `baparda'. The Investigating Officer PW-27 Prahalad Singh has deposed in Court that during that period, the appellants were kept `baparda'. We are, therefore, of the opinion that the test identification dated 22.2.1995 was nothing but an exercise to fill-up the lacuna which was left on 18.10.1994. In this way, in our opinion, the appellant-Champa Ram cannot be connected with the crime. 14. In this connection, it may be noted that at the time of arrest of the accused-persons, the age of any of the appellants was not recorded in the arrest memos Ex.P/42, Ex.P/43 and Ex.P/44. Whether it was done deliberately or was just a lapse, cannot be ascertained. 14. In this connection, it may be noted that at the time of arrest of the accused-persons, the age of any of the appellants was not recorded in the arrest memos Ex.P/42, Ex.P/43 and Ex.P/44. Whether it was done deliberately or was just a lapse, cannot be ascertained. However, the statement Ex.D/2 of PW-10 Shanti recorded u/s. 161 of the Cr.P.C. makes a specific mention to the effect that all the three culprits were young and all the three were aged between 30-35 years. From the statements recorded u/s. 313 of the Cr.P.C., it is more than evident that the accused-Ashok Kumar has been recorded as aged 25 years. The age of Lakh Singh has been recorded as 35 years. However, the appellant - Champa Ram has been recorded aged 65 years. This factor alone is sufficient to show that Champa Ram, who is quite old and aged, and on the wrong side of sixty was not a member of the party which entered and committed the offence in the house of the deceased persons. In this connection, the FIR Ex.P/41 also contains a mention about the age of the three culprits and it is specifically recorded that all the three were young boys. Consequently, we find that the test identification dated 22.2.1995 is of no consequence and the appellant-Champa Ram cannot be connected with any crime in this case. 15. Regarding the appellants-Lakh Singh and Ashok Kumar, PW-5 Bora Ram identified them correctly during the test identification dated 18.10.1994 as well as during his deposition in the Court. 16. In the result, D.B. Cr. Jail Appeal No. 555/2000 filed by the appellant- Champa Ram is allowed and he is acquitted of all the charges. However, D.B. Cr.Jail Appeal No. 726/1999 filed by the appellants-Lakh Singh and Ashok Kumar is dismissed. The judgment of the learned trial Court shall stand modified accordingly. The appeals are disposed of in the manner indicated above. The appellant-Champa Ram shall be released forthwith if not needed to be detained in connection with any other case.Appeal off 'C' allowed and Appeal of 'L' and 'A' dismissed. *******