Judgment Prabhat Kumar Sinha and Chandra Mohan Prasad JJ. 1. Both the appeals aforesaid having arisen out of the same judgment by the trial court have been heard together and this judgment will dispose of both. The appellants in both the appeals though were acquitted of the charge under section 396 of the Indian Penal Code (the Code in short) but were sentenced to imprisonment for life, each, and a fine of rupees one thousand or to undergo simple imprisonment for three months in lieu of the payment of fine, under section 412 of the Code. 2. The first information report, which is based on fardbayan (Exhibit-5) of Badri Prasad, father of the deceased Shambhu Prasad states that the deceased on 10.1.1996 had gone to Motihari to purchase books but on 11.1.1996 at about 4.00 P.M. the informant received information about finding of a dead body with a gunny bag full of books lying besides, at which he came to Madhubani Ghat at Sareh and found his son murdered with stabbing injury in the abdomen, and the neck cut. He also came to know that his son on the preceding day had left Motihari in the late evening hours on cycle, with the books purchased. Informant claimed that the Hero cycle, watch and a silver chain which deceased was wearing, were missing. 3. The defence of the appellants in course of trial was that of innocence, claiming their non-complicity in any such crime. Out of the thirteen witnesses examined, P.W.12 Dr. Niraj Sinha had conducted autopsy upon the dead body confirming his death by violent means, affirming the claim made in the first information report about the manner of assault. P.W.13 is Rajeshwar Prasad Mishra, the Investigating Police Officer. P.Ws. 8 to 11, namely, Dasai Sahni, Bijali Singh, Indradeo Sah and Nagina Singh had turned hostile and did not support the prosecution case whereas P.Ws. 6 and 7, Chandradeo Prasad and Ashok Kumar Gupta, were tendered for cross-examination who have not said anything that could help either the prosecution or the defence. P.W.5, Raja Ram Prasad, took up the witness stand to say that the accused, without naming them, had made confession at the Police Station. 6 and 7, Chandradeo Prasad and Ashok Kumar Gupta, were tendered for cross-examination who have not said anything that could help either the prosecution or the defence. P.W.5, Raja Ram Prasad, took up the witness stand to say that the accused, without naming them, had made confession at the Police Station. P.W.1, Yugal Kishore Chaubey, Circle Officer had conducted test identification parade of one Kapila H.M.T.watch with black fibre belt, one Hero cycle of green colour and one yello check shirt with label of "Faisal Tailor", Ghora Sahan and a brown colour full sweater. This witness claimed that witnesses Dhrub Prasad and Madan Prasad had identified all those articles. The test identification chart is Ex-hibit-1. The witness was discharged as no one turned up to cross-examine him. 4. Now a glance at other evidences on the record. P.W.2 is the informant himself who has supported the first information report about finding of the dead body. However, apart from the articles mentioned in the first information report he also claimed that shirt and sweater of the deceased were also missing. But this witness has not said about implication of any of the appellants. 5. P.W.3., Dwarika Prasad a cousin of the informant came to say that after hearing about the murder he had gone and had seen the dead body and also said about the missing of the watch, cycle, silver chain, shirt and the sweater, also claiming that the sweater was brown in colour and the shirt contained sticker (lable mark). P.W.4, Shatrughan Prasad, also, as per his evidence, had gone to see the dead body of Shambhu Prasad and said that except the underwear which he was wearing, all the clothes had been taken away from his body, and reiterated about missing of the articles, as noted above. RW.5, Raja Ram Prasad has come to say only that he had gone to the Police Station where the accused had given the confessional statement. He did not name the accused nor said about the matter in confession which in any case would be inadmissible in evidence having been made to the Police. 6. P.Ws. 8, 9 and 11 who, as already seen, were declared hostile by the prosecution appear to be the witnesses of arrest of appellants and of recoveries made by the Police in course of searches. 6. P.Ws. 8, 9 and 11 who, as already seen, were declared hostile by the prosecution appear to be the witnesses of arrest of appellants and of recoveries made by the Police in course of searches. P.W.8 claimed that nothing was recovered in his presence and though he admitted that seizure list was prepared in his presence, but said that the same was not read over to him. However, he admitted the signature over that, Exhibit-2/A. P.W.9 denied that the houses of appellants Amardeo Mali and Mohichand Mali were searched in his presence though he admitted having signed over the seizure list. He claimed that nothing was recovered in his presence and that he had signed over the seizure list on being asked to do so by the Police Officer. P.W.10, Indradeo Sah, similarly denied arrest of any appellant in his presence as also recovery of a new woolen sweater from appellant Nanhak Mali and one H.M.T. Kapila watch from the appellant Baijnath, by the Police Officer concerned. At one place he denied the preparation of the seizure list in his presence but at another he accepted that and also admitted his signature but again claimed in paragraph 4 that nothing was recovered in his presence. 7. P. W. 11. Nagina Singh denied arrest of appellant Baijnath in his presence and also denied recovery of a number of articles including a brown full sleeve sweater and a yellow shirt with tailor mark of Ghora Sahan. He similarly denied recovery of six cycles with one cycle having mark of Pustak Mahal on the chain cover, from Mohichand Mali. This cycle was claimed to be belonging to the deceased. Though he identified his signature over the seizure list but claimed that he had signed over that on being asked by the Police Officer, without applying his mind. 8. That leaves us with the evidence of P.W.13, the Investigating Officer. This witness, besides describing the recording of the fardbayan and formal first information report as well his inspection of the place of occurrence and the preparation of the inquest report, has said that subsequently on receipt of information he and other Police Officers had raided a place at Sareh and had arrested the appellants and others. This witness, besides describing the recording of the fardbayan and formal first information report as well his inspection of the place of occurrence and the preparation of the inquest report, has said that subsequently on receipt of information he and other Police Officers had raided a place at Sareh and had arrested the appellants and others. He said that Baijnath Mali had confessed his guilt relating to murder of a cycle-rider and about taking away of his watch and also said as to which of his accomplices had taken which of the articles of the deceased with them. This witness said that some of the looted articles were seized from the person of some appellants. According to this witness, on that day (28.1.1996) from the person of Nanhak Mali he had seized one coloured new woolen sweater, and other articles including one H.M.T. Kapila watch from possession of Baijnath Mali. The seizure list, the witness has proved, marked Exhibit-7. According to this witness, on the same day on the basis of the confession made by the appellants he had gone to Loknathpur, P.S. Tukolia and from the hut of Amardeo Mali he had seized a bundle of clothes including brown colour full sleeve sweater and a yellow full sleeve shirt with tailor mark. According to this witness from the house of Mohichand Mali six cycles were recovered and seized with one cycle having "Pustak Mahal" mark which was admitted to be obliterated but still visible. The seizure list is Exhibit-7/a. 9. Learned counsel for the appellants first attacked the very preparation of the seizure list stating that under law the witnesses to the search had to be of the locality where the search was to be made but in this case the witnesses belonged to another village. This question was also put to the P.W.13 in so far as search relating to Loknath Pritia Tola was concernced. This witness said (paragraph 41) that the witnesses were not of Loknath Pritia Tola but were of adjoining village. This question was also put to the P.W.13 in so far as search relating to Loknath Pritia Tola was concernced. This witness said (paragraph 41) that the witnesses were not of Loknath Pritia Tola but were of adjoining village. Sub-section (4) of section 100 of the Code of Criminal Procedure provides that before making a search, the Officer or other person about to make that shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search which persons will witness the search. This very provision envisages that under certain circumstances people of other locality can be called upon to be a witness of search. In our opinion the expression "inhabitants of the locality" cannot be too narrowly construed, to mean a pin pointed locality just around the place where search is to be made. The adjoining places may also be included in the terms "locality" and a contiguous village will also come within the meaning of "locality". All that is required by this provision is that the search and seizure should be above-board and witnessed by respectable and independent persons of the locality so as to exclude possibility of a foul play in making the search. If such persons of the contiguous place witness the search, on that account "the search cannot be said to be invalid. However, in this case the witnesses of search who were of another village have not fully supported the search having been made in their presence. 10. The prosecution case should fail on account of glaring lacunae in the prosecution evidence. The claim of the prosecution is that certain articles were recovered from the appellants which did belong to the deceased, and were obtained in robbery. It was for the prosecution to prove beyond reasonable doubts that the articles which were put on the test identification parade were the same articles that were looted from the deceased, and recovered from the appellants. It was for the prosecution to prove beyond reasonable doubts that the articles which were put on the test identification parade were the same articles that were looted from the deceased, and recovered from the appellants. Out of the witnesses examined by the prosecution, seizure list witnesses having gone hostile, it was only the Investigating Officer who could have done that by identifying the seized articles in the court and proving that those very articles were recovered and were put on test identification parade. Unless this connection is made, the allegation cannot be said to have been proved beyond reasonable doubts. 11. Moreover, none of the seized articles have been placed in the court, not to say before P.W.13 when he was in the witness box. All that the evidence of P.W.1 proves is that certain articles, without mentioning the source of their receipt, he had placed at the test identification parade which were identified. This evidence by itself is not sufficient to connect the articles put on test identification parade with those claimed to have been recovered from the appellants. 12. However, the learned Additional Public Prosecutor submitted that reliance should be placed on the evidence of P.W.1 to prove that the articles belonging to the deceased were put on test identification and for that the learned counsel has relied upon the decision of the Apex Court in the case of Ram Nath Mahto V/s. State of Bihar, A.I.R. 1996 Supreme Court 2511. A plain reading of that decision would show that the facts of the two cases are not similar. In that case P.W.6 was the person robbed in the train and had identified the appellant as one of the dacoits. There was another witness, P.W.7., who had fully supported the prosecution case, and had said that P.W.6 before him had identified the appellant as one of the dacoits. But in course of trial P.W.6 did not identify the appellant. The trial Judge also had recorded the fear of the witnesses noting that he was so afraid of the accused that he was trembling at his stare and that the witness was frightened to accord recognition to the appellant at the trial. The trial court as well the High Court, however, had relied upon the evidence of P.W.7 about identification of the appellant by P.W.6 at the test identification parade. Such is not the case here. The trial court as well the High Court, however, had relied upon the evidence of P.W.7 about identification of the appellant by P.W.6 at the test identification parade. Such is not the case here. This case does not relate to identification of a definite man but of certain articles that were seized. There may not be two persons of identical look and stature but so far articles are concerned, there could be any number of those in the same shape and colour. 13. Moreover, the entire prosecution case depends on the identification of those articles by two witnesses, Dhrub Prasad and Madan Prasad. These two witnesses were not even examined in the court so that they could say, if articles were placed before them in course of evidence, that what they had identified, belonged to the deceased which he was having at the time of his death. Thus, mere production of a test identification chart cannot constitute substantial evidence for proving the guilt of the appellants. 14. Therefore, we find that the prosecution case suffers from a number of infirmities, and on the basis of the evidence on the record it cannot be said that the prosecution has proved its case against the appellants beyond reasonable doubts. This being so, we find that all the four appellants in the two appeals deserve acquittal. 15. In the result, both the appeals aforesaid are allowed and their conviction, as well the sentence imposed upon them by the learned trial court, are hereby set aside. The appellants are acquitted of the charge under section 412 of the Code. Appellant Baidhya Nath Mali @ Baijnath Mali is in custody. He is directed to be released from the custody forthwith if not wanted to be detained in connection with any other case. In so far as other appellants are concerned, they are discharged of the liabilities of their bail bonds.