Judgment ( 1. ) THE judgment passed in this appeal shall also govern the disposal of connected appeals, Cr. A. No. 1051/99 (Anil alias Babbi alias chhotu v. State of M. P.) and Cr. A. No. 1199/99 (Satish alias Bhura Choudhary v. State of M. P.) since these appeals have also arisen from impugned judgment. ( 2. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 23-2-1999 passed by learned II Additional sessions Judge, Jabalpur in Sessions Trial No. 276/96 convicting the appellant under sections 450, 380 read with Section 34 as well as under Section 302/34 of I. P. C. and thereby sentencing him to suffer imprisonment as mentioned in the impugned judgment, this appeal has been preferred under section 374 (2) of the Code of Criminal Procedure, 1973. ( 3. ) IN brief the case of prosecution is that on 26-7-1995 complainant Keshav Prasad rajoriya went from his residence to his work place "kailash Automobiles" leaving behind his wife Shanta Rajoriya (hereinafter referred to as the deceased) in the house. In the evening when he arrived at his residence, he found that the doors of his house were opened and on entering inside the house he found that the household goods were lying here and there. The complainant by calling his wife when entered in the bathroom found her to be dead. She was strangulated by gamchha (towel ). Immediately complainant called his neighbour Suresh Roopchandani who also saw the dead body of the deceased. The police was informed about the incident on telephone. The complainant checked his household goods and found that apart from cash Rs. 10,000/-, two gold bangles, ring, chain, Bunde (ear tops) of his wife have been stolen. The police personnel registered a dehati Nalishi at the spot. ( 4. ) A panchayatnama of the dead body was prepared; some hair were found in the right fist of the deceased and nearby her right wrist, one hair was found and these hair were seized. The blood which was lying on the floor nearby the place of occurrence was also seized apart from the seizure of bloodstained bed-sheet, pillow and a small idol made of brass. The investigating agency also prepared the spot map and sent the dead body for postmortem. ( 5. The blood which was lying on the floor nearby the place of occurrence was also seized apart from the seizure of bloodstained bed-sheet, pillow and a small idol made of brass. The investigating agency also prepared the spot map and sent the dead body for postmortem. ( 5. ) THE autopsy surgeon during the course of postmortem found injuries like contusions on the chin, left side of mandible, abdomen, right palm, chest and on both the shoulders of the dead body. The doctor also found ligature mark throughout the neck and a fracture was also noticed on the left side of ribs. According to the autopsy surgeon the deceased died on account of asphyxia due to strangulation within 24 hours. ( 6. ) DURING the course of investigation the investigating agency while searching the house seized one Mangalsutra which was kept in the dressing table, silver chain having locket made of nail of lion, silver payal, ladies wrist watch, Tulsi Mala (basil chain), red purse, four coins of Chavanni (twenty five paise coin ). During the investigation, it was found by the police that acquitted co-accused Kanchan Soni was brought by deceased from orphan house, later on she was again sent back to the same place. According to the prosecution, earlier to the incident accused persons met to complainant keshav Prasad Rajoriya to obtain loan in his office and thereafter acquitted co-accused kanchan Soni also brought other co-accused persons in absence of complainant to his house where they met with the deceased. ( 7. ) IT also came into the knowledge of the investigating agency that accused Anil alias babbi of Cr. A. No. 1051/99 gave extrajudi-cial confession to his some of the friends and relatives as a result of which he was taken into custody on 3-2-1996 for interrogation. It is said that appellant Anil alias babbi gave memorandum statement leading to recovery of gold tops, idol of Godess durga Ji made by wood of walnut. On 3-2-1996 police personnel in their custody interrogated Satish alias Bhura Choudhary and he told that one pair of gold tops, gold bangles, copper kada (bangle), yellow pukhraj, Singhasan (throne) of white metal, pearl chain, chain of basil (Tulsi ki mala), chain made of stone bead, nail of lion, gold chain, silver chain, old bangle having gold polish, a temple made of marble stone, silver bangles, bag etc. have been hidden by him in his house and the gold ring he has pledged to Narmadeshwar Jewellers, silver coins are pledged by him to Soni Jwellers as well as tape record of Sanyo company has been kept in the house of his friend Shiv kumar Mishra. On the basis of his memorandum statement, the relevant register of narmadeshwar Jewellers as well as silver coins from Ravi Soni Jewellers, a tape record from the house of Shiv Kumar and the rest of the articles were recovered from the house of Satish alias Bhura. Accused Anil alias babbi and Santosh alias Bhura were put to test identification parade conducted by executive Magistrate in which complainant rightly identified them by saying that they are the persons who came in his office in respect of obtaining the loan. Apart from this a Gamchha (towel) which was found at the spot was also put for test identification and gaya Prasad who is the brother-in-law (wifes brother) of Satish alias Bhura identified the same to be of accused Satish alias bhura. ( 8. ) APPELLANT of this appeal namely Bablu alias Mahendra Shivastava was absconding and was arrested by Damoh Police in some other case and thereafter taking him into custody on 26-9-1997 i. e. after more than two years he was interrogated and he has stated that four rings, four gold bangles, three pairs of ear tops, one Mangalsutra, four gold chains which fell in his share, he pledged to Nandu Soni for Rs. 12,000/- and these articles were seized from Nandu Soni. The goldsmith Nandu Soni was having license to pledge the articles and his register was seized in which the description of pledged articles has been mentioned. The articles which were seized from this accused were also put for test identification parade and the complainant rightly identified these articles. ( 9. ) THE hair which were found in the fist of the deceased and one hair which was sticking on the wrist of the deceased were sent to Forensic Science Laboratory and in the report only this much was opined that those hairs were of the head of some female. ( 10. ) AFTER the completion of investigation a charge sheet was submitted in the committal court which on its turn committed the case to the Court of Session and from where it was received by the trial Court for its trial. ( 10. ) AFTER the completion of investigation a charge sheet was submitted in the committal court which on its turn committed the case to the Court of Session and from where it was received by the trial Court for its trial. ( 11. ) THE appellant of this appeal and appellants of connected criminal appeals were charged under Section 120-B, 380/34, 450 and 302/34 of I. P. C. The acquitted co-accused Kanchan Soni was charged under section 120-B of I. P. C. All the accused persons abjured their guilt and requested for the trial. ( 12. ) TO prove the charges, prosecution examined as many as 26 witnesses and placed Ex. P/l to P/36 the documents on record. The defence of appellants is of false implication but they did not adduce any evidence in support of their defence. ( 13. ) THE learned Trial Judge on close scrutiny of oral and documentary evidence came to hold that Kanchan Soni did not commit any offence as a result of which acquitted her. The learned trial Court further came to hold that charge under Section 120-B, I. P. C. is also not proved against any of the appellant but found that the charges under sections 302/34, 450 and,380/34 of I. P. C. are proved as a result of which they have been convicted to suffer imprisonment as directed in the impugned judgment. ( 14. ) IN this manner the present appeal has been filed by the appellants. ( 15. ) IT has been contended by Shri ghanshyam Pandey, learned counsel for appellant of this appeal as well as addressing on behalf of appellant Satish alias Bhura of Cr. A. No. 1199/99 that the prosecution has placed reliance broadly inter alia on three sets of evidence. Firstly the extrajudicial confession made by appellant Bablu to virendra Kumar (PW-24) and Gopal Das (PW-26); secondly his memorandum statement under Section 27 of the Evidence Act ex. P/32 dated 26-9-97 leading to recovery; and thirdly identification of appellants of connected appeals, namely, Anil alias Babbi and Satish alias Bhura by complainant keshav Prasad Rajoriya. ( 16. Firstly the extrajudicial confession made by appellant Bablu to virendra Kumar (PW-24) and Gopal Das (PW-26); secondly his memorandum statement under Section 27 of the Evidence Act ex. P/32 dated 26-9-97 leading to recovery; and thirdly identification of appellants of connected appeals, namely, Anil alias Babbi and Satish alias Bhura by complainant keshav Prasad Rajoriya. ( 16. ) IT has been put forth by learned counsel that so far as extrajudicial confession of appellant Bablu to Virendra Kumar (PW-24)and Gopal Das (PW-26) is concerned, since both these witnesses were declared hostile and did not support the case of prosecution, therefore, this piece of evidence has been disbelieved by learned Trial Court and in this regard he has invited our attention to para 22 of the impugned judgment. By hammering the evidence of recovery from these appellants, it has been put forth by learned counsel that looking to the evidence placed on record the witnesses are not worth reliable and similarly the identification of the articles is also doubtful because the witnesses to the identification memo Krishna kumar (PW-20) and Suresh Kumar (PW-22)did not support the case of prosecution and they were declared hostile. It has also been put forth by him that councillor Pramod rathore who conducted the test identification has not been examined. In support of his contention, learned counsel has also placed reliance on Earabhadrappa v. State of Karnataka, AIR 1983 SC 446 : (1983 Cri lj 846 ). It has also been put forth by learned counsel that the incident is said to have been occurred on 26-7-1995 but the alleged stolen articles have been recovered from Bhura and Anil appellants of connected criminal appeals after near about more than seven months and therefore looking to long gap, the recovery part will not connect the appellant in alleged offence. It has also been put forth by him that applant Bablu alias mahendra was arrested after more than two years, therefore recovery from him after such a long period has no meaning. ( 17. ) SO far as the identification of appellants of connected appeals by complainant keshav Prasad Rajoriya is concerned, it has been put forth by learned counsel that the same has been disbelieved by the Trial Court and in this context he has invited our attention to para 17 of the judgment. ( 18. ( 17. ) SO far as the identification of appellants of connected appeals by complainant keshav Prasad Rajoriya is concerned, it has been put forth by learned counsel that the same has been disbelieved by the Trial Court and in this context he has invited our attention to para 17 of the judgment. ( 18. ) ACCORDING to learned counsel the description of stolen articles are not mentioned in the written report (Ex. P/l) of the complainant as well as in his case diary statement (Ex. D/l) and therefore no reliance can be placed on the alleged recovery of the articles. In support of his contention, learned counsel has placed reliance on babuda v. State of Rajasthan, AIR 1992 SC 2091 : (1992 Cri LJ 3451) and Naba Kumar das v. State of West Bengal, AIR 1974 SC 777 : (1974 Cri LJ 512 ). By placing reliance on the decision of Supreme Court Gautam maroti Umale v. State of Maharashtra, 1994 supp (3) SCC 326 and a decision of Andhra pradesh High Court Vempati Kanuka Rao and another v. State of A. P. and etc. 2004 cri LJ 877 it has been put forth by learned counsel that if this Court comes to the conclusion that some stolen articles were recovered from the appellants, merely on the basis of alleged recovery, in absence of any connected link and cogent evidence, they cannot be convicted for charge under section 302/34 of I. P. C. At the most they can be convicted for having possession of stolen property. ( 19. ) SHRI Usmani, learned counsel appearing for appellant Anil alias Babbi of Cr. A. No. 1051/99 has submitted that so far as the extrajudicial confession of this appellant to Guddu alias Amit Kumar (PW-4), ku. Husanbano (PW-9), Jamil (PW-10) and nilima Sharma (PW-11) is concerned, since all these witnesses were declared hostile, it is not proved that this appellant gave any extrajudicial confession to these witnesses. So far as the recovery of the articles from this appellant is concerned, it has been put forth by learned counsel that witnesses to recovery memo namely, Rajkumar Patel (PW-12) and Ramesh Burman (PW-19) have not supported the case of prosecution and they were declared hostile. So far as the recovery of the articles from this appellant is concerned, it has been put forth by learned counsel that witnesses to recovery memo namely, Rajkumar Patel (PW-12) and Ramesh Burman (PW-19) have not supported the case of prosecution and they were declared hostile. It has also been put forth by him that the articles which were alleged to have been seized from this appellant were not mixed with similar type of articles in the test identification and so far as the recovery of idol of Goddess Durga Ji made of walnut wood is concerned, the same has not been mentioned in the written report (Ex. P/l ). In support of his contention, learned counsel has placed reliance on two decision of Supreme Court they are Sarwan singh Rattan Singh v. State of Punjab, AIR 1957 SC 637 : (1957 Cri LJ 1014) and K. T. Palanisamy v. State of Tamil Nadu, AIR 2008 sc 1095 . ( 20. ) ON the other hand Shri Patel, learned additional Advocate General submitted that the learned Trial Court has relied on the evidence of complainant Keshav Prasad rajoriya (PW-1) Yashwant Kumar Kulhada (PW-6) and Dr. D. K. Saklle (PW-5), the investigating officer Anil Vaidya (PW-23) and nand Gopal (PW-25) and cogent reasons are assigned by learned trial Court convicting the appellants and therefore this appeal be dismissed. ( 21. ) HAVING heard learned counsel for the parties we are of the considered view that this appeal and connected Criminal Appeal no. 1051/99 filed by appellant Anil alias babbi deserve to be allowed and Criminal appeal No. 1199/99 filed by appellant Bhura alias Satish deserves to be allowed in part. ( 22. ) IT is well settled in law that if the prosecution is basing its case on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should not only be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. Thus all the established circumstances should be complete and there should be no gap in the chain of evidence. In this context we may profitably place reliance on the decision of supreme Court Sukhram v. State of maharashtra (2007) 7 SCC 502 : (2007 Cri lj 4327 ). Thus all the established circumstances should be complete and there should be no gap in the chain of evidence. In this context we may profitably place reliance on the decision of supreme Court Sukhram v. State of maharashtra (2007) 7 SCC 502 : (2007 Cri lj 4327 ). In another decision State of Goa v. Sanjay Thakran and another (2007) 3 SCC 755 : (AIR 2007 SC (Supp) 61) the same principle has been reiterated and the tests which the Supreme Court has laid down are as under : 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was com-rnitted by the accused and none else; and 4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ( 23. ) IN Ashish Batham v. State of Madhya pradesh (2002) 7 SCC 317 : (2002 Cri LJ 4676) the Supreme Court while placing reliance on its earlier decision Hanumant govind Nargundkar v. State of M. P. , AIR 1952 SC 343 : (1953 Cri LJ 129) in para 6 has also put emphasis on the warning given by Baron Alderson that where a case rests upon circumstantial evidence there are reasonable chances that the conjectures and surmises may take place of strict proof. But the Court should take precaution and should not all conjectures and surmises to take place of strict proof. ( 24. ) THE same principle has been reiterated by the Supreme Court in another decision gagan Kanojia v. State of Punjab (2006)13 SCC 516 wherein apart from the tests which should be applied, it has also been held by the Supreme Court that it is necessary for the Courts to remember that there is a long gap in between "may be true" and "must be true". The prosecutions case is required to be gathered by leading cogent, believable and credible evidence. The prosecutions case is required to be gathered by leading cogent, believable and credible evidence. Whereas the Court must raise a presumption that accused is innocent and in the event of two views are possible one indicating to the guilt of the accused and the other to his innocence, the defence available to the accused should be accepted. ( 25. ) THE learned Trial Judge on scanning the testimony of complainant Keshav prasad Rajoriya (PW-1) and the evidence adduced on behalf of prosecution for identification of the appellants of connected criminal appeals came to hold in para 16 and 17 that the evidence of identification of these appellants is not worth reliable and cannot be believed. We have also gone through the finding of learned Trial Court and we find it to be quite cogent and the reasons so assigned are reasonable based on correct appreciation of evidence. Hence, we hereby affirm the finding of learned Trial court disbelieving the identification of appellants by complainant. Appellant of this appeal who was taken in custody on 26-9-1997 i. e. after two years of incident was never put to test identification parade. ( 26. ) SO far as the evidence of prosecution in respect of giving extrajudicial confession by appellant Anil alias Babbi of Cr. A. No. 1051/99 is concerned, the same has been disbelieved by learned Trial Judge since the witnesses to the extrajudicial confession have been declared hostile and have not supported the case of prosecution. We have also gone through the findings of learned Trial Judge in para 20 in that regard and we find those findings to be quite cogent and reasonable. ( 27. ) SO far as the extrajudicial confession made by present appellant Bablu alias mahendra is concerned, the same has also been disbelieved by learned Trial Judge since the witnesses to extrajudicial confession did not support the case of prosecution and were declared hostile and we do not deem it necessary to deviate ourselves from the findings arrived at by the learned trial Judge in para 22 of its judgment disbelieving the evidence of extrajudicial confession. The said finding of learned Trial judge is also hereby affirmed. ( 28. ) AS per the case of prosecution on the neck of the deceased a Gamchha (towel)was tied. The said finding of learned Trial judge is also hereby affirmed. ( 28. ) AS per the case of prosecution on the neck of the deceased a Gamchha (towel)was tied. According to the prosecution, one gaya Prasad identified the said Gamchha (towel) in the test identification to be of appellant Satish alias Bhura of Cr. A. No. 1199/99. But the prosecution has not examined said Gaya Prasad and, therefore, according to us, the finding arrived at by the learned Trial Judge that appellants were having any nexus with the said Gamchha (towel) has not at all been proved. Hence the three important links that the evidence of identification of appellants of connected appeals by complainant Keshav Prasad rajoriya (PW-1); the evidence of extrajudicial confession against appellants Anil alias babbi and Bablu alias Mahendra as well as the identification of Gamchha of Satish alias bhura has not at all been proved. The only evidence now remains is that of recovery of the stolen articles from the possession of appellants. ( 29. ) IN Ex. P/l which is written application of complainant Keshav Prasad Rajoriya (PW-1) addressed to Station Officer Incharge police Station Lordganj dated 26-7-1995 following description of stolen articles has been mentioned : 1) Gold Bangles. 2) One ring having big size Pukhraj stone. 3) Gold Mangalsutra. 4) Ear tops 5) Rs. 10,000/- cash. 6) 6-7 packets of currency notes of Rupee one. 7} One jewellery box containing two gold rings, his own two rings having gun metal in one ring, one gold chain, 3-4 pairs of ear tops. ( 30. ) EX. P/32 dated 26-9-1997 is the memorandum statement under Section 27 of the Evidence Act of appellant Bablu alias mahendra and on the basis of his disclosure statement vide recovery memo Ex. P/ 33 dated 27-9-1997 following articles were seized from the possession of New Kishore jewellers owner Nandu alias Nand Kishore s/o. Babulal (Ex. P/25) : (i) Four gold bangles red and green coloured Meena embossed (ii) Three pairs of gold ear tops (iii) Four gold chains (iv) One Mangalsutra having black coloured Guriya (beads) (v) Four gold rings, two rings having pukhraj stones and in one ring a stone like gun metal is embossed and one ring having pearl embossed. (vi) One red coloured Account Book. ( 31. ) EX. (vi) One red coloured Account Book. ( 31. ) EX. P. 17 dated 3-2-1996 is the memorandum statement under Section 27 of the evidence Act of appellant Anil alias Babbi and on the basis of his disclosure statement vide recovery memo Ex. P/19 dated 3-2-1996 following articles were seized from the house of this appellant : (i) One pair gold ear tops having three red coloured stone embossed. (ii) One idol of Goddess Durga Ji embossed on the wood of walnut. ( 32. ) EX. P/16 is the memorandum statement under Section 27 of the Evidence Act of appellant Satish alias Bhura and on the basis of his disclosure statement vide recovery memo Ex. P/18 dated 3-2-1996 following articles were seized from the house of this appellant : (i) One pair 6f gold tops red green stones embossed (ii) One gold Kangan (bangle) (iii) One old Kada of copper (iv) One Pukhraj having yellow colour (v) One thorn of white metal having broken Chhatra (vi) One Rudraksha Mala (chain) having 12 transparent pearl type of stones having big size of Rudraksha at the bottom (vii) One pearl mala braided in silver wire having 101 pearls (viii) One Tulsi mala braided in metal wire (ix) One mala having beads in artistic manner (x) One nail of lion studded in silver (xi) One thin gold chain (xii) Old coins of different denomination of 1, 20 and 10 paise total 52 (xiii) One pair of silver kangan having gold polish (xiv) One temple of marble stone (xv) One piece of eartop having gold polish (xvi) One velvet bag Chitkabra (multi coloured ). Vide seizure memo Ex. P/23 dated 3-2-1996 at the instance of appellant Satish alias bhura following articles were seized from arun Kumar Rawat of Narmadeshwar Jewellers : (i) One gold gents ring (ii) One account register red coloured on page 177 of the said register entry of gents ring is mentioned, having signature of appellant Bhura alias Satish vide seizure memo Ex. P/28-B dated 3-2-1996 at the instance of appellant Satish alias Bhura two silver coins on one side figure of Ganesh Ji is embossed and on the other side word om in Devnagari script is embossed, were seized. On the same day viz. 3-2-1996 at the instance of appellant Satish alias Bhura vide recovery memo Ex. P/29-B one tape record of Sanyo Co. On the same day viz. 3-2-1996 at the instance of appellant Satish alias Bhura vide recovery memo Ex. P/29-B one tape record of Sanyo Co. was recovered from the house of Shiv Kumar Mishra. ( 33. ) WE shall now examine how far the recovery of above said articles, has been proved. So far as the recovery of Tape recorder of Sanyo Co. at the instance of appellant Satish alias Bhura of Cr. A. No. 1199/99 is concerned, the same has not been proved because Shiv Kumar Mishra has not been examined by the prosecution. ( 34. ) THE witnesses to the memorandum statement (Ex. P/33) of appellant Bablu alias mahendra are Neeraj and Sachin and the witnesses to recovery memo Ex. P/33 pertains to this appellant are Nand Kishore s/o. Bihari Lal Tiwari and Sandeep Chansoriya. Neither the witnesses to the memorandum statement Ex. P/32 namely Neeraj and sachin nor the witnesses to recovery Memo ex. P/33 Nand Kishore and Sandeep chansoriya have been examined. ( 35. ) THE witnesses to memorandum statement of appellant Anil alias Babbi are ramesh (PW-19) and Raj Kumar (PW-12) but both of them have been declared hostile. These witnesses are also the witnesses to the recovery memo Ex. P/19. ( 36. ) THE witnesses to memorandum statement Ex. P/16 under Section 27 of the evidence Act of appellant Satish alias Bhura are Ramesh (PW-19) and Raj Kumar (PW-12) and they are the witnesses of recovery memo Ex. P/18. The witnesses to recovery memo Ex. P/23 pertaining to this appellant are Sarman Kumar (PW-15) and Parasram (PW-18 ). The witnesses to recovery memo ex. P/28-B and P/29-B are Swaminathan (PW-21) and Shriniwas but Shriniwas has not been examined. According to us merely because the independent witnesses to some of recovery memos who have not been examined have not supported the case of prosecution and merely because the other witness to the recovery memo have not been examined would not give a clean chit to the appellants so far as the recovery of the stolen articles is concerned. The recovery of stolen articles can be proved from the evidence of Investigating Officer also. In this regard we may profitably place reliance on the decision of Supreme Court Nathu Singh v. State of M. P. , AIR 1973 SC 2783 : (1974 cri LJ 11) which has also been rightly placed reliance by learned Trial Judge. The recovery of stolen articles can be proved from the evidence of Investigating Officer also. In this regard we may profitably place reliance on the decision of Supreme Court Nathu Singh v. State of M. P. , AIR 1973 SC 2783 : (1974 cri LJ 11) which has also been rightly placed reliance by learned Trial Judge. ( 37. ) THUS we shall now scan the testimony of the Investigating Officer Anil Vaidya (PW-23) in order to see whether the recovery of the stolen articles have been duly proved or not. ( 38. ) SO far as the recovery from appellant Anil alias Babbi of Cr. A. No. 1051/99 is concerned, vide Ex. P/19 only two articles are said to have been recovered at the instance of this witness vide seizure memo Ex. P/19 and those articles are one pair of ear tops having three red stones weighing near about 4. 500 gms. and one idol of Durga Ji embossed on wood of walnut. So far as the recovery of idol of Durga Ji is concerned, this article did not find place either in written report (Ex. P/l) or in Dehati Nalish or in the case diary statement Ex. D/1 of complainant. So far as one pair of ear tops having three red stones is concerned, on going through the test identification memo Ex. P/ 3, it appears that this article was not kept for identification because only one pair of gold tops having red and green coloured stones, was kept for test identification. Nowhere in the test identification memo Ex. P/3 it has been mentioned that one year tops having only three stones of red colour was put for test identification. In recovery memo ex. P/19 dated 3-2-1996 it has not been mentioned that gold ear tops which were recovered from appellant Anil were having green stones also. On the contrary it has been specifically mentioned that they were having only red stones. Thus, the description of ear tops mentioned in recovery memo does not tally with the ear tops kept for identification vide memo Ex. P/3 dated 3-2-1996. Hence according to us no reliance can be placed on the recovery from appellant Anil alias Babbi of Cr. A. No. 1051/99 and according to, us he is entitled for benefit of doubt. ( 39. P/3 dated 3-2-1996. Hence according to us no reliance can be placed on the recovery from appellant Anil alias Babbi of Cr. A. No. 1051/99 and according to, us he is entitled for benefit of doubt. ( 39. ) SO far as the recovery of the alleged stolen articles from appellant Bablu alias mahendra of this appeal is concerned, on going through the evidence of investigating officer Anil Vaidya (PW-23), it is revealed that this appellant was arrested on 26-9-1997 and on the basis of his memorandum statement Ex. P/32 dated 26-9-1997 the alleged stolen articles were seized from Nandgopal (PW-25) who is a goldsmith and is having a shop of goldsmith. According to Nandgopal (PW-25) on 2-8-1995 this appellant Bablu alias Mahendra pledged four bangles having Meena stones, four rings having stones three pair of eartops, one Mangalsutra weighing 62 gms. for Rs. 12,000/- and there is endorsement in his account book in this regard which is Ex. P/35 (photocopy Ex. P/ 35-A ). On this document the signature of appellant Bablu alias Mahendra finds place and which has been so stated by this witness. ( 40. ) THE articles which w-ere seized from the shop of Nandkishore "new Kishore Jewellers" Tripuri Chowk vide Ex. P/33 dated 27-9-1997 are as under :--i. Four gold Chudi (bangles) embossed design and having Meena-"stone of red and green colour (27. 780 gm)ii. Three pairs of gold eartops total weighing 3. 440 gms. iii. Four gold chains weighing 21. 350 gms. iv. One Mangalsutra having black beads weighing 1 gm. v. Four gold rings weight not mentioned, out of these four rings, two rings were having Pukhraj stones, one ring having gun metal stone and one ring having a pearl. If we keep the list of stolen articles seized from the shop of Nand Kishore Jewellers vide seizure memo Ex. P/33 in juxtaposition to written complaint Ex. P. 1 on the basis of which Dehati Nalishi Ex. P/2 was written, and read those documents conjointly, we find that four Chudi (bangles) having red green coloured Meena embossed are not described in the report. Three pairs of gold ear tops which were recovered, there is no mention that any stone or pearl were embossed but in the written complaint in the description of ear tops, it has been mentioned that ear tops are having different coloured pearl. Vide seizure memo Ex. Three pairs of gold ear tops which were recovered, there is no mention that any stone or pearl were embossed but in the written complaint in the description of ear tops, it has been mentioned that ear tops are having different coloured pearl. Vide seizure memo Ex. P/ 33, four gold chains were seized but in the report description of only one chain is mentioned. One Mangalsutra black coloured was recovered vide seizure memo Ex. P/33 weighing only 1 gm. while the description of mangalsutra in written report Ex. P/1 is that the same is of gold of 3 tola (near about 30 gms.) having nail of lion embossed. But no such Mangalsutra is seized vide recovery memo Ex. P/33. Vide Ex. P/33 four gold rings were seized and out of these four rings one ring was having gun metal stone and in ex. P/1 there is mention of one ring having gun metal. Thus, the solitary article one ring having gun metal is only tallying. ( 41. ) ALL the above said seized articles which were recovered vide Ex. P/33 on 27-9-1997 were put for test identification on next day viz. 28-9-1997 in police station lordganj. This Court is unable to understand why the test identification of the alleged stolen articles which were seized vide ex. P/33 were put to test identification in the police station and why not at some different place. Thus it raises a doubt about the authenticity and hallmark of the identification to these articles. Apart from this, the number of stolen articles are quite less in the written report (Ex. P/l) of complainant keshav Prasad Rajoriya while the articles which are recovered vide Ex. P/33 are more in number than the articles which are mentioned in written complaint (Ex. P/l) and the interesting situation is that all these articles have been identified by complainant keshav Prasad to be of his wife (deceased ). On going through the evidence of keshav Prasad (PW-1) para 5, it is gathered that after the incident daily police persons were coming to his house and he was mentioning them about the stolen articles as soon as he comes to know that they have been stolen. According to this witness on 4th (viz. 4-8-1995), he submitted written report to Superintendent of Police, Jabalpur about the total number of the articles but the said report is not on record. According to this witness on 4th (viz. 4-8-1995), he submitted written report to Superintendent of Police, Jabalpur about the total number of the articles but the said report is not on record. On going through the documents only one written report (Ex. P/l) which of the date of incident of complainant mentioning the stolen articles and their description on the basis of which Dehati Nalishi Ex. P/2 was registered on the same day and a case diary statement ex. D/l of same day of the complainant is on record and there is no document on record in order to demonstrate that apart from the articles which are shown in written report (Ex. P/1) any other statement of complainant informing to the investigating agency about the details of other stolen articles, has been placed on record. One more supplementary 161 statement of complainant Keshav Prasad Rajoriya Ex. D/2 on 8-2-1996 was recorded by the investigating agency but it is in respect of acquitted co-accused Kanchan Soni and nothing more. Hence, it raises a doubt that the alleged stolen articles which were recovered vide seizure memo Ex. P/33 belonged to the deceased who was the wife of complainant keshav Prasad Rajoriya or of complainant himself. ( 42. ) ANOTHER reason to disbelieve the identification of the stolen articles from the appellant Bablu vide seizure memo Ex. P/33 is that two persons, namely, Suresh shirvastava s/o. Ram Prasad Shirvastava (PW-22) and Krishan Kumar Tiwari s/o. Lakhan Kumar Tiwari (PW-20) were the witnesses before whom the test identification of these articles were conducted by councillor Pramod Rathore. So far as the evidence of Suresh Shrivastava (PW-22) is concerned though he is a hostile witness but he was examined only to prove Ex. P/22 and not the identification memo Ex. P/28. Not even a single question about the test identification memo Ex. P/28 was put to this witness. So far as witness Krishna Kumar Tiwari (PW-20) is concerned, he is also a hostile witness but no question has been put to him about the test identification memo Ex. P/ 28 to this witness and only question about ex. P/27 which is the identification memo dated 24-6-1996 of one Gamchha (towel)having blood stains which has already been disbelieved by the trial Court. Regarding test identification of the stolen articles which were seized vide Ex. P/ 28 to this witness and only question about ex. P/27 which is the identification memo dated 24-6-1996 of one Gamchha (towel)having blood stains which has already been disbelieved by the trial Court. Regarding test identification of the stolen articles which were seized vide Ex. P/33 and which were put to test identification on 28-9-97 vide identification memo Ex. P/28, not even a single question was put to this witness. The prosecution has also not taken any pains to examine Pramod Rathore, Councillor of municipal Corporation who conducted the test identification of the articles mentioned in test identification Ex. P/28. According to us, if the councillor Pramod Rathore would have been examined, there would have been opportunity to the appellant Bablu alias mahendra of this appeal to cross-examine him about the afticles which were mixed along with the articles which were to be identified and the details and whether the police persons were present or not or the articles were shown to the complainant Keshav prasad Rajoriya or not earlier to the test identification. Thus, appellant Bablu alias mahendra has been debarred to cross-examine and to put his innocence on account of non-examination of this material witness. ( 43. ) ONE more reason not to believe the test identification memo Ex. P/28 dated 28-9-1997 of the stolen articles which were seized vide seizure memo Ex. P/33 is that as per the aforesaid articles were required to be identified on 28-9-1997 (Ex. P/28) he was not residing at Jabalpur and he was called from Harsood. The interesting and funny position is that according to this witness the police personnel did not send any notice to him for the identification of the recovered stolen articles but his counsel gave information in that regard. We are unable to understand and digest that how such a procedure can be recognized in the eye of law. Nor such a procedure by calling the complainant through counsel and not by police personnel for test identification of the stolen articles under any of the law has been known by the learned Public Prosecutor and for this reason also identification memo Ex. P/28 and the identification of the alleged stolen articles by complainant Keshav prasad Rajoriya becomes highly doubtful. ( 44. ) INDEED, appellant Babloo alias mahendra was arrested on 26-9-1997 and alleged stolen articles were recovered on 27-9-1997 vide Ex. P/28 and the identification of the alleged stolen articles by complainant Keshav prasad Rajoriya becomes highly doubtful. ( 44. ) INDEED, appellant Babloo alias mahendra was arrested on 26-9-1997 and alleged stolen articles were recovered on 27-9-1997 vide Ex. P/35 and these articles were put to test identification on 28-9-1997 vide ex. P/28. Thereafter, complainant Keshav prasad Rajoriya (PW-1) was again called in the Court to record his statement because this appellant Babloo alias Mahendra was joined as accused in the trial. The Public prosecutor examined him and exhibited the documents and he was cross-examined. ( 45. ) FOR aforesaid reasons, the implication of this appellant Bablu alias Mahendra in the present case becomes highly doubtful and we hereby extend benefit of doubt to this appellant also. ( 46. ) WE shall now examine the recovery part of the stolen articles in respect to Satish alias Bhura of Cr. A. No. 1199/99. The memorandum statement of this appellant is ex. P/16 and the witnesses to this memorandum are Ramesh (PW-19) and Raj Kumar patel (PW-12) and they are the hostile witnesses. The recovery memos of this appellant are Ex. P/18 dated 3-2-1996, Ex. P/23 dated 3-2-1996, Ex. P/28-B dated 3-2-1996 and Ex. P/29-B dated 3-2-1996. The witnesses to recovery memo Ex. P/18 are ramesh (PW-19) and Raj Kumar Patel (PW-12) but they are hostile witnesses. ( 47. ) THE witnesses to recovery memo Ex. P/23 are Sarman Kumar (PW-15) and parasram (PW/18), but they are hostile witnesses. The witnesses to seizure memo Ex. P/28-B are Swaminathan (PW-21) and shriniwas (not examined ). Swaminathan (PW-21) is again a hostile witness and these two witnesses are also the witnesses to recovery memo Ex. P/29-B. ( 48. ) VIDE Ex. P/29 one Tape Record of sanyo Co. was seized from the house of Shiv kumar Mishra at the instance of appellant satish alias Bhura but the prosecution has not examined Shiv Kumar Mishra. According to us, his examination was necessary in order to produce opportunity to appellant satish alias Bhura to cross-examine him. Thus, this appellant was debarred from cross-examining Shiv Kurnar Mishra in order to demostrate his innocence. Apart from this, despite this article was recovered on 3-2-1996 at 15. 00 hrs but it was not kept for test identification which was conducted on the same day between. 15. 30 hrs. to 16. 30 hrs. Thus, this appellant was debarred from cross-examining Shiv Kurnar Mishra in order to demostrate his innocence. Apart from this, despite this article was recovered on 3-2-1996 at 15. 00 hrs but it was not kept for test identification which was conducted on the same day between. 15. 30 hrs. to 16. 30 hrs. and therefore no reliance can be placed on the alleged recovery. In the written com-plaint Ex. P/l, Dehati Nalishi Ex P/2, case diary statement Ex. D/1 of the complainant keshav Prasad Rajoriya, it has not been mentioned that any Tape Record has been stolen and therefore according to us recovery memo Ex. P/29-B would not help the prosecution in order to connect this appellant Satish alias Bhura in the offence. ( 49. ) SO far as the recovery of two silver coins having figure of Ganesh Ji embossed and on the second side word om in Hindi is embossed is concerned, these two articles were seized from Ruby Soni s/o. Daulatram of Patiyala Jewellers but Ruby Soni has not been examined by the prosecution therefore, according to us no reliance can be placed on this recovery. We are of the view that it was necessary for the prosecution to examine this witness. Apart from this, the description of these two silver coins has also not been mentioned in written report Ex. P/l and Dehati Nalishi Ex. P/2. These two silver coins were also not put for test identification in Ex. P/3 though these two silver coins were recovered vide seizure memo Ex. P/28-B on 3-2-1996 at 14. 15 hrs. and the test identification memo is of the same day conducted between 15. 30 hrs. to 16. 30 hrs. Thus, the present appellant also cannot be connected in the offence on account of this recovery of two silver coins vide seizure memo vide Ex. P/29-B. ( 50. ) SO far as the recovery of one gents gold ring is concerned, indeed there is no recovery of the said ring. On going through the seizure memo Ex. 30 hrs. Thus, the present appellant also cannot be connected in the offence on account of this recovery of two silver coins vide seizure memo vide Ex. P/29-B. ( 50. ) SO far as the recovery of one gents gold ring is concerned, indeed there is no recovery of the said ring. On going through the seizure memo Ex. P/23, it is revealed that on the disclosure statement by appellant Bhura alias Satish, the police party went to the shop of Arun Kumar Rawat goldsmith, namely, Narmadeshwar Chungi and recovered one gold gents ring without any stone, and the gold gents ring which was kept for test identification is having a stone and therefore the recovery of this gold gents ring does not corelate with the gents ring which was kept in test identification memo Ex. P/ 2. Thus, by this recovery memo Ex. P/23 also the guilt of appellant Satish alias Bhura cannot be said to be proved. ( 51. ) WE shall now consider the recovery of stolen articles mentioned in Ex. P/18 from this appellant Satish alias Bhura. We have already stated hereinabove the details of those articles irl para 32 of this judgment and if we tally these articles with the description given by complainant in written report Ex. P/1. We find that some of the articles mentioned in written complaint have been seized from this appellant and they have also been correctly identified by complainant Keshav Prasad Rajoriya. We think it apposite to mention those articles mentioned in recovery memo Ex. P/18 which do tally with written report Ex. P/1 and which have been correctly identified by complainant in test identification (Ex. P/3) they are : i. One pair of ear tops having different coloured stones ii. Stone Pukhraj iii. One gold chain iv. One gold gents ring. According to us, in absence of any connecting evidence, holding appellant Satish alias Bhura merely on the basis of having possession of above said some stolen articles, he cannot be held to be guilty of the offences punishable under Sections 450, 380/34 as well as under Section 302/34 of i. P. C. , hence, he is acquitted from all these charges. However, according to us, this appellant has committed the offence punishable under Section 411 of I. P. C. as he is in possession of the stolen property for which he has no explanation. However, according to us, this appellant has committed the offence punishable under Section 411 of I. P. C. as he is in possession of the stolen property for which he has no explanation. In this context we may profitably place reliance on the decision of Supreme Court Gautam Maroti umale (supra ). ( 52. ) RESULTANTLY Criminal Appeal No. 777/1999 (Bablu alias Mahendra v. State of M. P.) and Criminal Appeal No. 1051/1999 (Anil alias Babbi alias Chhotu v. State of M. P.) are hereby allowed. The judgment of conviction and order of sentence passed by learned trial Court convicting them for the offences under Sections 450, 380/34 as well as under Section 302/34 of I. P. C. is hereby set aside and they are acquitted from all the charges. Appellant Anil alias Babbi is on bail, his ball bonds are discharged. The appellant bablu alias Mahendra was released on bail but he jumped the ball as a result of which he was arrested and at present he is in jail. He is hereby directed to be released forthwith if not required in any other case. The conviction and sentence of appellant satish alias Bhura Choudhary of Cr. A. No. 1199/99 under Sections 450, 380/34 as well as under Section 302/34 of I. P. C. is hereby set aside, however, he is convicted under Section 411 of I. P. C. and sentenced to undergo two years rigorous imprisonment which he had already undergone hence he need not to surrender, his bail bonds are also discharged. ( 53. ) THIS appeal and the connected criminal appeals are hereby disposed of accordingly. Criminal Appeal No. 1199 of 1999 : For the reasons stated in the judgment delivered in Cr. A. No. 777/1999 (Bablu alias mahendra), this appeal is allowed in part. The conviction and sentence of appellant satish alias Bhura Choudhary under sections 450, 380/34 as well as under Section 302/34 of I. P. C. is hereby set aside, however, he is convicted under Section 411 of I. P. C. and sentenced to undergo two years rigorous imprisonment which he had already undergone hence he need not to surrender, his bail bonds are also discharged. Criminal Appeal No. 1051 of 1999 : For the reasons stated in the judgment delivered in Cr. A. No. 777/1999 (Bablu alias mahendra), this appeal is allowed. Criminal Appeal No. 1051 of 1999 : For the reasons stated in the judgment delivered in Cr. A. No. 777/1999 (Bablu alias mahendra), this appeal is allowed. The conviction and sentence of appellant Anil alias babbi under Sections 450, 380/34 as well as under Section 302/34 of I. P. C. is hereby set aside and he is acquitted from all the charges. Appellant is on ball, his bail bonds are discharged. Order accordingly.