Judgment ( 1. ) SINCE all the three aforesaid appeals are arising out of one and the same judgment, therefore, they are being decided by this common judgment. ( 2. ) THE appellants named above have preferred the appeals against the judgment dated 16/5/2002, passed by the learned IIIrd Additional Sessions Judge, Ujjain in s. T. No. 157/2001 whereby convicting them for the offence punishable under sections 302, 394 and 460 of the I. P. C. and sentenced them to suffer imprisonment for life with fine of Rs. 2,000/-, in default of payment of fine, to undergo one year r. I. , 7 years R. I. and fine of Rs. 2,000/-, in default of payment of fine, to undergo additional one year R. I. and 7 years R. I. with fine of Rs. 1,000/-, in default of payment of fine, to undergo one year R. I. respectively. It has been further directed that in the event of non-deposit of fine, the sentence on each count shall run consecutively. ( 3. ) BRIEFLY stated the prosecution case as unfolded before the Trial Court is that complainant Pooja (P. W. ll) and deceased Seema were residing with their family members in double storeyed house, situated near diversion of Badnagar, tehsil Road, District Ujjain. In the intervening night of 30th and 31st March 2002, at about 12 O Clock, while Pooja (P. W. ll) was studying in her room at ground floor, at that moment, she overheard the cry of her sister-in-law deceased seema, on this, she proceeded towards the room situated in first floor and saw two persoris taking out articles from "godrej Almirah" in the room. At that juncture, miscreants by some object dealt a blow on back side of her head because of which she fell unconscious and regained consciousness at about 3. 00 a. m. Pooja went into the room of deceased Seema and found her in unconscious condition. Seema was having injury on her head and blood was oozing from the injury. Pooja immediately rushed to the house of neighbour Radheshyam and disclosed about the incident to Radheshyam and his mother. They sent telephonic message to police, on which, police reached on the spot. Seema and Pooja were taken in a police van to hospital in injured condition, but Seema died on the way. Pooja immediately rushed to the house of neighbour Radheshyam and disclosed about the incident to Radheshyam and his mother. They sent telephonic message to police, on which, police reached on the spot. Seema and Pooja were taken in a police van to hospital in injured condition, but Seema died on the way. The miscreants, who committed the incident were young persons having medium health and height wearing pant and shirt. Pooja lodged the report (Ex-P/18) wherein she has stated that if miscreants will be brought before her, she will identify them f. l. R. (Ex-P/18) was recorded by Rajesh Sharma (P. W. 15), the then S. H. O. of police Station Badnagar, District Ujjain. Dr. A. K. Jain (P. W. 2) medically examined pooja (P. W. 11) and issued her M. L. C. report (Ex-PA ). Dr. Jain also performed autopsy of dead-body of Seema with panel of two more Doctors. and gave postmortem report (Ex-P/2 ). Appellants were arrested and on their disclosure statements, as per provision under Section 27 of the Evidence Act, looted property was said to have been seized. Looted property was identified by eye-witness pooja (P. W. ll) in Test Identification Parade conducted by Naib Tehsildar R. K. Mishra (P. W. 9) through identification memo Ex-P/17. She had also identified the appellants in Test Identification Parade held by Naib Tehsiladar T. R. Verma (P. W. 7 ). The identification memo of appellants Pappu, Asraf, Jafar and shakir are Ex-P/6, P/7, P/8 and. P/9 respectively. On statement given by Shakir vide Ex-P/13-A, a golden chain and one bag bearing name of "girdhari Traders", badnagar were seized through seizure memo (Ex-P/14), from Asraf on memorandum statement (Ex-P/11), through seizure memo (Ex-P/15), two golden rings were seized and appellant Jafar got done the recovery of one golden chain, two golden bangles, one pair of silver anklet and three pair of bichhiya. His memorandum statement and seizure of looted property are Ex-P/21 and P/20. Appellant Pappu gave memorandum statement (Ex-P/12) and in pursuance thereof, two golden bangles and one pair of ear-rings were seized vide seizure memo (Ex-P/16-A ). On completion of investigation, appellants were charge-sheeted for commission of offence under Sections 460, 302, 394 read with 397 of the I. P. C. ( 4. ) APPELLANTS denied the charges and pleaded their false implication by the police. On completion of investigation, appellants were charge-sheeted for commission of offence under Sections 460, 302, 394 read with 397 of the I. P. C. ( 4. ) APPELLANTS denied the charges and pleaded their false implication by the police. They were charged for commission of offence under Sections 394 read with Section 397,302 and 460 of the IPC. The appellants have not examined any witness in defence whereas prosecution has examined in all 18 witnesses and adduced 24 documents to prove its case. ( 5. ) LEARNED Trial Court, finding the appellants guilty, convicted and sentenced the appellants as described herein-above. ( 6. ) LEARNED counsel for the appellants has submitted that evidence of Test Identification after about more than 11 months by solitary eye-witness pooja (P. W. ll) should not be relied upon by the Trial Court because of lapse of such a long time and delay. It is also argued that evidence of panch witnesses, for recovery of looted property/ornaments, from the possession of the appellants is contradictory and solitary testimony of Police Officer A. S. I. D. L. Chouhan (P. W. 12) is not reliable to prove the recovery of looted ornaments at the instance of the appellants. It is further argued that identification of appellant jafar is not at all dependable by Pooja (P. W. ll), who mentioned specifically in the f. I. R. only presence of three persons inside the house at the time of incident. ( 7. ) ON the other hand, learned counsel for the State has supported the impugned judgment of conviction and sentence passed by the learned Trial Court. ( 8. ) HAVING heard learned counsel for the parties and after perusing the entire record carefully, we are of the opinion that evidence of Pooja (P. W. ll) is fully reliable for appellants except appellant Jafar and her testimony is corroborated by her F I. R. (Ex-P/18), medical evidence of Dr. A. K. Jain (P. W. 2) and evidence of recovery of looted ornaments from the possession of appellants. Appellant jafar would be liable for offence under Section 411 of the I. P. C. because recovery of looted property a golden chain, two bangles, silver anklet and three pair of silver "bichhiya"were seized after about 11 months of the incident through his memorandum statement (Ex-P/21) dated 27/2/2001 and seizure memo (Ex-P/20 ). Appellant jafar would be liable for offence under Section 411 of the I. P. C. because recovery of looted property a golden chain, two bangles, silver anklet and three pair of silver "bichhiya"were seized after about 11 months of the incident through his memorandum statement (Ex-P/21) dated 27/2/2001 and seizure memo (Ex-P/20 ). Appellant Jafar gave statement which was recorded by A. S. I. D. L. Chouhan (P. W. 12) in pursuance thereof, property was recovered at his instance. ( 9. ) POOJA (P. W. LL) has deposed that in the night of incident, at about 12. 30 midnight while she was resting in her room after her studies and her sister-in-law seema" was in the room of first floor of the house, at that moment, she overheard the cry of Seema and rushed towards her room. At that time, she saw two appellants taking out articles from "godrej Almirah". Both the accused after hearing the sound of her foot-steps, looked towards. her and at that moment, somebody dealt a blow on her head from back side, she immediately turned and saw that third person, thereafter, she fell giddiness and became unconscious. She regained consciousness in the night at 3. 15 a. m. , thereafter, she reached in the room of her sister-in-law Seema, who was lying unconscious and having injury on her head. The articles in the room were disturbed. She immediately approached the neighbour radheshyam and also disclosed about the incident to Radheshyam, his father mangilal and mother. They intimated the police on telephone. The police party reached on the spot and took her and deceased Seema in police van. She lodged the report (Ex-P/l8) in the Police Station, thereafter, both were sent to government Hospital, Badnagar. She was referred for further treatment to ujjain and after checkup, she returned back in the evening to Badnagar. She has stated in para 4 of her statement specifically that she had seen the miscreants and will be able to identify them. She identified the appellants in Bherugarh Jail and proved her signature on identification memos Ex-P/6, P/7, P/8 and P/9. She has also proved her signature on identification memo (Ex-P/17) of recovered looted golden and silver ornaments. She has stated in para 4 of her statement specifically that she had seen the miscreants and will be able to identify them. She identified the appellants in Bherugarh Jail and proved her signature on identification memos Ex-P/6, P/7, P/8 and P/9. She has also proved her signature on identification memo (Ex-P/17) of recovered looted golden and silver ornaments. Test Identification of the appellants was conducted by Naib Tehsildar R. K. Mishra (P. W. 9) and he has corroborated the statement of this witness Pooja about identification of looted property in Test Identification parade vide memo (Ex-P/17 ). Naib Tehsildar T. R. Verma (P. W. 7) has also corroborated the version of Pooja about identification of appellants in Test identification Parade vide memos Ex-P/6, P/7, P/8 and P/9 regarding identification of appellants Pappu, Asraf, Jafar and Shakir respectively. Dr. A. K. Jain (P. W. 2)medically examined this witness and found injury on her head. He proved her m. L. C. Report (Ex-P/1 ). In the opinion of Dr. Jain, injury could be caused by hard and blunt object. memo (Ex-P/8) dated 12/3/2001, but her identification in Test Identification Parade for appellant Jafar does not inspire confidence because of her positive admission in para 13 of her deposition that at the time of incident, she had not seen the fourth accused but she identified the said accused in Test Identification Parade because he was trying to hide himself and in Court, she pointed out appellant Jafar, who was the fourth accused. This statement st\ows that at the time of incident, she had not seen appellant Jafar, therefore;-she could not identify him in Test Identification Parade and her identification in Test Identification Parade was based on conduct of the appellant and not on the basis of actual seeing the appellant and keeping his feature and personality in her memory. In this view of the matter, in absence of reliable test Identification Parade evidence, we are of the opinion that conviction of appellant Jafar for the above mentioned offence is not sustainable, but at the same time, he would be liable for conviction under Section 411 of the I. P. C. for receiving property of offence. In this view of the matter, in absence of reliable test Identification Parade evidence, we are of the opinion that conviction of appellant Jafar for the above mentioned offence is not sustainable, but at the same time, he would be liable for conviction under Section 411 of the I. P. C. for receiving property of offence. The appellant Jafar is convicted on the basis of presumption of lower degree as per provision under Section 114 of the evidence act that he was a receiver of stolen property and he failed to explain the possession of the recovered ornaments of the complainant party. At this stage, it is made clear that appellants have not claimed the seized ornaments of their own and they have denied the recovery and seizure. ( 11. ) A. S. I. D. L. Chouhan (P. W. 12) has proved the memorandum statement (Ex-P/13-A), P/12, P/21 and P/ ll of appellants Shakir, Pappu, Jafar and Asraf respectively. He has also proved the seizure of golden chain and one bag bearing name of "girdhari Traders", Badnagar vide (Exrp/14), two bangles and one pair golden ear-rings through seizure memo (Ex-P/16), a golden chain, two golden bangles, Silver anklet, three pairs "bicchiya" vide seizure memo (Ex-P/20) and two golden rings-through seizure memo (Ex-P/15) respectively from the exclusive possession of the appellants. The statement of A. S. I. D. L. Chouhan has been corroborated on material particulars by the evidence of Ketan soni (P. W. 5), Kailash (P. W13), Ganpat (P. W. 14) and Yusuf (P. W. 8 ). Kamalkant (P. W. I 8) has proved the entry in his Accounts Book (Ex-P/25) showing the pledging of chain, a looted property by appellant Shakir. ( 12. ) LEARNED counsel for the appellants have also argued that homicidal death of deceased Seema has not been proved by the prosecution beyond all reasonable doubt. It is admitted position that nobody has seen appellants assaulting Seema, who was found in unconscious condition in her bedroom at first floor of the residential house of their family and Pooja (P. W. ll) was studying in ground floor room. She narrated the entire incident and identified appellants Pappu, Asraf and shakir in the Test Identification Parade as well as in the Court. She narrated the entire incident and identified appellants Pappu, Asraf and shakir in the Test Identification Parade as well as in the Court. She has also mentioned in the F. I. R. that she would be able to identify the miscreants and she successfully identified these three appellants in Test. Identification Parade held during the course of investigation and also in Court. P. W. 2 Dr. A. K. Jain proved the postmortemreport (Ex-P/2) of deceased Seema. According to this witness, he conducted postmortem on 1/4/2000 at 10. 10 a. m. and found one lacerated wound on the head of the deceased at occipital parietal region. The clotted blood was present surrounding the wounds. On internal examination, he did not find any injury, but right side of the heart was full of blood and left chamber was empty. On external examination, he had also found bleeding from nose. In the opinion of dr. Jain, deceased Seema died because of asphyxia caused due to congestion in respiratory passage. The postmortem was performed by panel of three Doctors and Dr. Jain proved the signature of his companion doctors L. A. Kapadia and smt. Shradha Dave. In cross-examination, para 17, he deposed that the death of deceased could be caused by pressing of mouth or throttling and he denied that in causing of such death, blood and froth would not come from the nose of the deceased. He has specifically stated that in the case of asphyxial death, blood and froth comes from the nostril. In the opinion of Dr. Jain and looking to his entire evidence, we are satisfied that deceased met homicidal death at the time of incident and since presence of appellants Pappu, Asraf and Shakir established inside the house, who committed robbery, the circumstances are pointing towards them for commission of murder of deceased Seema beyond reasonable doubt. ( 13. ) THE appellants were arrested after the lapse of 9-10 months and after arrest within a reasonable period Test Identification parade was held by the investigating Agency. Apart from this, no questions were put by the defence to the Investigating Officer for giving explanation if there was any delay in holding test identification parade. ( 13. ) THE appellants were arrested after the lapse of 9-10 months and after arrest within a reasonable period Test Identification parade was held by the investigating Agency. Apart from this, no questions were put by the defence to the Investigating Officer for giving explanation if there was any delay in holding test identification parade. It is settled legal position that delay simplicitor is not sufficient to discard the evidence led by any party and same can be taken into consideration only after affording an opportunity to explain the same by the concerned witness. See Bharat Singh vs. State of U. P. (A. LR. 1972 SC 2478)" ( 14. ) IN the result, on the basis of foregoing discussion, Cri. A. No. 731/2002 of appellant Jafar is allowed in part. His conviction and sentence as awarded by the learned Trial Court are, hereby, set aside instead thereof, he is convicted under Section 411 of the I. P. C. and sentenced to R. I. for three years with fine of rs. 15,000/-, in default of payment of fine, he shall suffer additional R. I. for two years. The Cri. A. No. 724/2002 of appellants Shakir, Asraf and Cri. A. No. 669/ 2002 of appellant Pappu are, hereby, dismissed. ( 15. ) ORIGINAL judgment is retained in Cri. A. No. 724/02 and a copy whereof be placed in the record of connected Cri. A. No. 731/02 and Cri A No 669/02. Appeal dismissed.