ORDER : Prakash Gupta, J. Since the appellants in both the appeals have challenged the common judgment of conviction and order of sentence dated 7th December, 2009 passed by the Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur in Sessions Case No. 39/2009, the same have been heard together and are being decided by this common judgment. By the said judgment the trial court has convicted and sentenced both the appellants in the manner as stated below:- U/s. 302 I.P.C.:- Each of the appellants was sentenced to undergo life imprisonment and to pay a fine of Rs. 2000/-. In default thereof to further undergo additional rigorous imprisonment for two months. U/s. 201 I.P.C.:- Each of the appellants was sentenced to undergo rigorous imprisonment for 3 years' and to pay a fine of Rs. 500/-. In default thereof to further undergo additional rigorous imprisonment for one month. U/s. 392/34 I.P.C.:- Each of the appellants was sentenced to undergo 7 years' rigorous imprisonment and to pay a fine of Rs. 1000/-. In default thereof to further undergo additional rigorous imprisonment for one month. All the substantive sentences have been ordered to run concurrently. 2. Brief facts relevant and essential for the disposal of these appeals are as under :- According to prosecution story, on 1.12.08, complainant Banshi (PW.4) submitted written report (Ex.P.2) to the Station House Officer, Police Station Amer, Jaipur. The written report when translated into english reads as under :- "To, The Station House Officer, Police Station Amer, Jaipur. Sub: For lodging of F.I.R. Sir, It is submitted that I am the owner of Bhagwati Tent House, B-107 Janta Colony. I look after the work of tent house along with my colleague Manish Parnami. On 30.11.08 at about 3.00 in the day time, my driver Vijay Singh Chauhan, Manish Parnami and one other person Kamal Ahuja left for Shankunt Resort, Paota from Jaipur in Tata Indica Car No.RJ-14-CD-7677 belonging to his father, which is being driven by Vijay Singh Chauhan. These persons reached at Shakunt Resort at about 4.30 PM. I reached by another car at about 6.00 PM where I found Vijay Singh Chauhan, Manish Parnami and Kamal Ahuja working. I asked Vijay Singh to return to Jaipur at 6.15 PM. He left for Jaipur alone with the car. At about 7.30 PM I received a phone call from mobile No. 9950941062 belonging to Vijay Singh. I reached by another car at about 6.00 PM where I found Vijay Singh Chauhan, Manish Parnami and Kamal Ahuja working. I asked Vijay Singh to return to Jaipur at 6.15 PM. He left for Jaipur alone with the car. At about 7.30 PM I received a phone call from mobile No. 9950941062 belonging to Vijay Singh. I asked Vijay Singh to go to Shishodiya Garden. In the night, I and Manish Parnami returned to Jaipur at about 12.00 in the night. Today, 1.12.08 on receiving information from the police regarding a dead body of a person having slip containing numbers of Rohit, I reached at the place of occurrence, Gunawata, BSF Road and found that the deceased was my driver Vijay Singh Chauhan S/o Shri Hari Singh Chauhan, resident of House No. 369, Murlipura Scheme. My driver Vijay Singh was murdered by unknown persons at unknown place and thereafter the dead body was thrown at lonely place (BSF Road Gunawata) and assailants took away our Tata Indica Car No. RJ-14-CD-7677. Report is submitted for legal action and for searching of car. Applicant (Sd/- Banshi Khandelwal) B-107, Janta Colony, Jaipur. Date 1.12.2008" 3. On the basis of the aforesaid written report, the police registered a case vide FIR No. 496/08 at Police Station Jaipur City (North), Amer for offences punishable under Sections 302, 201 and 392 IPC and investigation commenced. 4. During investigation, police prepared necessary memos, got post mortem conducted on the dead body. Accused appellants were arrested through production warrants and on the basis of the alleged information furnished by the appellants under section 27 of the Indian Evidence Act, while in police custody the police, recovered Tata Indica Car, key of the car, blood stained clothes of the appellants etc. On completion of investigation, the police filed a charge-sheet against the appellants for offences under Sections 302, 201 and 392 IPC in the court of Addl. Chief Judicial Magistrate, Jaipur District, Jaipur, who in turn committed the case for trial to the learned trial court. 5. Charges for offences under Sections 302, 201 and 392 IPC were framed against the appellants to which the appellants denied and claimed trial. The prosecution examined 15 witnesses and produced documents (Ex.P.1) to (Ex.P.70). Chief Judicial Magistrate, Jaipur District, Jaipur, who in turn committed the case for trial to the learned trial court. 5. Charges for offences under Sections 302, 201 and 392 IPC were framed against the appellants to which the appellants denied and claimed trial. The prosecution examined 15 witnesses and produced documents (Ex.P.1) to (Ex.P.70). Thereafter the statements of the accused appellants were recorded under Section 313 Cr.P.C., 1973 wherein they denied the incriminating facts and stated that the prosecution evidence is not true. No evidence was adduced in defence. 6. The learned trial court after hearing arguments of the parties, convicted and sentenced the appellants vide judgment of conviction and order of sentence dated 7th December, 2009 in the manner stated here-in-above. 7. Before, we discuss the evidence brought on record by the prosecution and the arguments raised by the learned counsel for the appellants, in order to find out whether the death of deceased Vijay Singh was homicidal, we think it appropriate to consider the post mortem report (Ex.P.16) conducted by Dr. Arvind (PW.12). 8. As per the post mortem report (Ex.P.16) in all five injuries on the person of deceased were noted by the members of the Medical Board and as per the opinion of the members of the Medical Board the cause of death was 'injury to brain which caused Neurogenic shock & Haemorrhagic shock leading to death. Therefore, it is clear that the death of the deceased Vijay Singh was homicidal. 9. A look at the impugned judgment shows that the learned trial court has based its judgment of conviction on the basis of circumstantial evidence i.e. recovery of Indica Car containing blood stains on the seat and inside the same, recovery of one Nokia Mobile Handset at the instance of appellant Satya Prakash @ Prakash, allegedly belonging to the deceased Vijay Singh, recovery of blood stained pants of the appellant Satya Prakash @ Prakash and identification of the appellants by Praveen (PW.1) in the test identification parade conducted by Girjesh Kumar Ojha, Addl. Chief Judicial Magistrate (PW.15). Recovery of Indica Car: 10. Chief Judicial Magistrate (PW.15). Recovery of Indica Car: 10. As per the case of the prosecution, on the basis of information (Ex.P.29) and (Ex.P.33) allegedly furnished by the appellants Jitendra @ Jeetu and Satya Prakash @ Prakash respectively under section 27 of the Indian Evidence Act, a Indica Car of gray colour having changed number plate DL 3C AC 8673 was recovered on 15th December, 2008 vide recovery memo (Ex.P.39) in presence of motbir witnesses Surendra Singh (PW.11) and Praveen (PW.1) from Railway Station Parking Rewadi, Haryana. 11. To prove this circumstance, the prosecution has relied upon the documentary evidence i.e. information (Ex.P.29) allegedly furnished by the appellant Jintendra @ Jeetu under section 27 of the Indian Evidence Act, the information (Ex.P.33) allegedly furnished by the appellant Satya Prakash @ Prakash under section 27 of the Indian Evidence Act, recovery memo (Ex.P.37) and FSL Report (Ex.P.64). The prosecution also relied upon the oral evidence of Praveen (PW.1), Hanuman Singh (PW.9), Aidal Prasad (PW.10) and Surendra Singh (PW.11). 12. Praveen (PW.1) stated that about 6 months ago he was on duty at Rewari Railway Station Parking. His work was to prepare the parking slip of the vehicle which entered the premises for parking and to look after the same. At about 4-5 in the evening, a black coloured Indica car entered the premise. There were two people in the car. One person got down and asked him to park the car. He showed the place. After parking the car, the witness asked as to when they would return, to which they replied that they would come at about 8-9 AM in the next morning. They paid Rs. 20/- towards the parking charges and upon his asking they paid Rs. 40/-, the charge for more than 12 hours. However, later they told the witness that their wife was ill and they would come whenever she would be discharged. None of those persons was present in the court. 13. Though this witness has been declared a hostile witness by the prosecution, in his cross-examination by the learned PP, the witness deposed that police made inquiry from him. Out of the two persons, one was tall and the other was short. The witness admitted it to be true that he told the police to identify the persons. (The witness did not identify both the accused). Indica was of black colour. Out of the two persons, one was tall and the other was short. The witness admitted it to be true that he told the police to identify the persons. (The witness did not identify both the accused). Indica was of black colour. The witness denied the suggestion that he was telling lie to save the accused. 14. In cross examination by the counsel for the defence, the witness stated it to be wrong that they did not keep Carbon copy of the slip issued by them. They keep record of one year. The witness admitted it to be true that the parking slip was issued to the person who brought black coloured Indica. Police persons did not ask to put numbers of the vehicle on the parking slip but the police asked to put time. The witness admitted it to be true that on (Ex.P.1) date 2.12.08 is there and denied the fact that the Indica car was parked on 1st but the same was parked on 2nd. 15. Hanuman Singh (PW.9), Investigating Officer of the case stated that at the relevant time he was posted as Station House Officer, Police Station Amer. On 1.12.08, upon receiving information regarding a dead body lying on the BSF Road, he reached the spot and after receiving the written report (Ex.P.2), investigation was started and necessary memos were prepared. The accused were arrested through production warrant. During police custody on 14.12.08, accused Jitendra @ Jettu furnished an information (Ex.P.29) under section 27 of the Indian Evidence Act regarding recovery of Indica Car. Similar information (Ex.P.33) was furnished by other accused Satya Prakash and in pursuance thereof one Indica Car having registration number DL 3C AC 8673 was recovered on 15.12.08 at 5.15 PM, in presence of motbir witnesses Surendra Singh (PW.11) and Parveen (PW.1) vide recovery memo (Ex.P.37). During investigation it was revealed that the accused have changed the original number plate and the number plate having No.DL 3C AC 8673 was fixed which was also seized vide memo (Ex.P.39). 16. In cross-examination the witness admitted it to be true that during investigation it did not come on record as to whom car No. DL 3C AC 8673 belonged. In his investigation this fact had not surfaced. 16. In cross-examination the witness admitted it to be true that during investigation it did not come on record as to whom car No. DL 3C AC 8673 belonged. In his investigation this fact had not surfaced. The witness admitted it to be true that he did not make inquiry at Delhi as to who was the owner of this car and that he did not prepare the recovery memo of number plate of the car. He collected information regarding original number from RTO Office on the basis of Chassis number and Engine number. The witness further admitted it to be true that he seized the Original Registration Certificate and IC of Indica Car No. RJ-14-CC-7677 from the owner of the car and the photo copies of the same are on record. The witness admitted the fact the Chassis numbers mentioned in the seizure memo (Ex.P.39) do not match with the RC. The witness further admitted it to be true that he did not obtain original General power of attorney and that the Engine numbers and Chassis numbers mentioned in the power of attorney handed over by Ramji Lal do not match with the RC which was recovered by him. The witness then admitted it to be true that the numbers mentioned in (Ex.P.37) and (Ex.P.39) do not match the General Power of Attorney. 17. Surendra Singh (PW.11) stated that on 15.12.08 while he was posted at GRP Police Station Rewari, discharging duty on the platform Inspector Hanuman of Police Station, Amer along with colleague and two accused namely, Jitendra and Satya Prakash @ Prakash reached on a vehicle. Hanuman Singh investigated the case in his presence. Accused identified Indica Car No. DL 3C AC 8673 parked in the Railway Parking which was seized vide seizure Memo (Ex.P.37). On inspection of the car, blood was found on the driver's seat. Blood was also found on the floor and rear seat and rubber seal of the window. On the driver's seat one empty cartridge was also found. 18. In cross-examination, the witness stated that number plate having numbers as DL 3C AC 8673 was recovered. Bonnet of the car was opened to see the Chassis and Engine numbers. He saw faces of the accused at that time and can identify them. He saw the faces of the accused when they got down of the vehicle. 18. In cross-examination, the witness stated that number plate having numbers as DL 3C AC 8673 was recovered. Bonnet of the car was opened to see the Chassis and Engine numbers. He saw faces of the accused at that time and can identify them. He saw the faces of the accused when they got down of the vehicle. The witness admitted it to be true that the faces of accused were unveiled when they got down from their vehicle and till their reaching up to the parking place. The witness admitted it to be true that the faces of the accused were not veiled (Baparda) till their boarding on the vehicle. Praveen, worker of the parking was with them. The witness further admitted it to be true that Praveen had also seen the faces of the accused. The parking slip which was handed over by Praveen contained date as 2.12. The witness then admitted it to be true that in his presence, the Inspector did not seize the vehicle having Rajasthan number. 19. We may note here that information (Ex.P.34) under section 27 of the Indian Evidence Act was allegedly furnished by appellant Satya Prakash @ Prakash on 15.12.08 at 8.15 AM regarding recovery of key of Indica Car, mobile phone set of the deceased and the clothes which he was wearing at the time of occurrence, whereas recovery memo (Ex.P.35) was prepared on 1.30 PM on the same day. Recovery memo (Ex.P.39) of the Indica car shows that it was prepared on 15.12.08 at 5.20 PM. 20. Regarding leaving for Delhi for the purpose of affecting recoveries, Hanuman Singh (PW.9) stated that they left for Delhi on 15.12.08 in the morning. He did not remember the exact time but they left for Delhi before noon i.e. before 12 O' clock at 9-10 AM. They went to Delhi by private vehicle and reached there within two hours. The witness stated it to be incorrect that it takes 5 hours to reach Delhi from Amer but admitted that it takes four hours. 21. Aaidal Prasad Sharma (PW.10) in this regard stated that he along with In-charge Hanuman Singh (PW.9) and constable Hanuman left for Delhi on 15 at 11-12 in the noon and reached Delhi within 5 hours and reached Delhi at about 3-4 PM. 21. Aaidal Prasad Sharma (PW.10) in this regard stated that he along with In-charge Hanuman Singh (PW.9) and constable Hanuman left for Delhi on 15 at 11-12 in the noon and reached Delhi within 5 hours and reached Delhi at about 3-4 PM. The witness then stated it to be incorrect that they reached Delhi at about 3-4 PM but they reached Delhi at about 11-12. 22. Regarding recovery of Indica Car, Aaidal Prasad (PW.10), in his cross examination stated that car was recovered from Rewari but he did not remember the number of the car. He also did not remember that Indica Car No. DL-3C-AC-8673 was recovered. He also did not remember colour of the Indica. 23. (Ex.P.29) is the information under section 27 of the Indian Evidence Act, allegedly given by appellant Jitendra @ Jeetu regarding the Indica car. A perusal of the information (Ex.P.29) would reveal that it was not recorded in the presence of any independent witness. Similar information (Ex.P.33) was allegedly given by appellant Satya Prakash @ Prakash and the same was also not given in presence of any independent witness. 24. It is argued by Shri Sandeep Maheshwari, learned counsel appearing for appellant Satya Prakash @ Prakash, that the prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt. Shri Maheshwari further argued that conviction of the appellant, on the basis of the circumstantial evidence, is bad in law as the trial court has failed to consider the settled legal proposition that the circumstances from which the conclusion of guilt is to be drawn should be proved beyond all reasonable doubts and such circumstances must be conclusive in nature. All the circumstances should be complete and there should be no gap left in the chain of evidence. The proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. As per the argument of the learned counsel for the appellant, in the instant case, the prosecution has failed to meet out the legal requirements of a case based upon circumstantial evidence. The proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. As per the argument of the learned counsel for the appellant, in the instant case, the prosecution has failed to meet out the legal requirements of a case based upon circumstantial evidence. Challenging the recovery of the pant of the appellant Satya Prakash @ Prakash on the basis of the information (Ex.P.34) allegedly furnished by the appellant under section 27 of the Indian Evidence Act, the counsel submitted that the same is not admissible in evidence as it is not supported by any independent witness. Though the prosecution has tried to prove the fact that the stains found on the pant were that of 'human blood', in absence of blood group to prove the same, it cannot be said that the blood stains allegedly found on the pant of the appellant were that of the deceased. Further Praveen (PW.1) has not supported the case of the prosecution. On the strength of the arguments here-in-above, the learned counsel for appellant Satya Prakash @ Prakash has prayed for acquittal of the appellant. 25. In support of his argument that, non-attestation of disclosure statement by independent witnesses is fatal to the prosecution, learned counsel for the appellant has placed reliance on a Division Bench judgment of this Court in Vishnu Soni & Ors. v. State of Rajasthan, DB Criminal (Jail) Appeal Nos.562 and 1210/2009, decided on 7th August, 2016 and Mobin v. State of Rajasthan, D.B. Criminal (Jail) Appeal No.879/2011, decided on 02.09.2015. 26. To support his argument that the recovery of the blood stained clothes of appellant Satya Prakash @ Prakash are highly suspicious and no credence should have been given to such recoveries for holding the appellant guilty of serious offence like murder because they were not proved to be stained with blood matching the blood group of the deceased. Learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in the case of Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra ( AIR 2008 SC 1184 ) and State of Rajasthan v. Raja Ram ( AIR 2003 SC 3601 ). 27. Learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in the case of Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra ( AIR 2008 SC 1184 ) and State of Rajasthan v. Raja Ram ( AIR 2003 SC 3601 ). 27. Shri Mahendra Goyal, learned counsel appearing for appellant Jitendra @ Jeetu argued that the disclosure statements (Exs.P.26,27,28 and 29) allegedly made by the appellant Jitendra under section 27 of the Indian Evidence Act are not admissible in evidence in view of Section 25 of the Evidence Act which provides that no confession made to a police officer shall be proved as against a person accused of any offence. Further, the counsel also argued that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused to the same. As per learned counsel for the appellant, in the instant case, Hanuman Singh (PW.9), Investigating Officer of the case is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statements ( Exs.P.26,27,28 and 29). Shri Goyal further argued that in the present case, the essential and important links in the chain of circumstantial evidence are completely lacking. Lastly, learned counsel for the appellant argued that identification test do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding along the right line. The identification can only be used as corroborative of the statement in court. 28. In support of his submissions, Shri Mahendra Goyal, learned counsel appearing for appellant Jitendra @ Jeetu placed reliance on the following judgments :- (1) Heera & Anr. v. State of Rajasthan, 2006 (1) Crl.LR 138(Raj); (2) State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370 ; (3) Harjit Singh & Others v. State of Punjab, (2002) 6 SCC 739 ; and (4) Musheer Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh, (2010) 2 SCC 748 . 29. We have given our serious consideration to the rival submissions and with the assistance of learned counsel, we have gone through the evidence on record. 30. v. State of Madhya Pradesh, (2010) 2 SCC 748 . 29. We have given our serious consideration to the rival submissions and with the assistance of learned counsel, we have gone through the evidence on record. 30. Having appreciated the evidence of the witness, it is to be noted that there are discrepancies, omissions and improvements in the statements of the prosecution witnesses regarding the time they reached Delhi to effect recoveries. As per recovery memo (Ex.P.35), regarding recovery of key of the car, mobile set allegedly belonging to deceased and pants of the appellant Satya Prakash @ Prakash, the same was prepared at 1.30 PM. There is contradiction in the statements of the witnesses regarding their departure from Amer and arrival at Delhi. 31. Recovery memo (Ex.P.35) is also not attested by the independent witnesses and the same is attested by Aaidal Prasad Sharma (PW.10) who, at the relevant time was posted as Sub-Inspector at Police Station Amer. The another attesting witness constable Hanuman Sahai did not appear in witness-box. 32. Regarding recovery of mobile handset vide recovery memo (Ex.P.35) allegedly belonging to the deceased, investigating officer Hanuman Singh (PW.9) in his cross-examination stated that no proof (bill etc.) was gathered to show that the mobile handset belonged to deceased Vijay Singh. He had not made any inquiry from the person who made phone call to the deceased at about 7.30 on his mobile. He also did not make inquiry regarding mobile numbers of Banshi Khandelwal. The witness further deposed that even after looking the case diary today, he is not in a position to say whether any mobile handset was recovered from the pocket of the deceased. 33. Prabhu Dayal (PW.7) at the relevant time was posted a Malkhana Incharge at Police Station Amer. In cross-examination, the witness admitted it to be true that the key deposited with him was of Indica Car No. DL 3C AB 8673 and that neither any good nor key of vehicle No. RJ.14CD-7677 was deposited with him. 34. From the evidence of the prosecution, it is also not clear as to whether the key allegedly recovered on the basis of the disclosure statement of appellant Satya Prakash @ Prakash was, the key of the Indica Car allegedly stolen by the appellants after murdering the deceased. 35. 34. From the evidence of the prosecution, it is also not clear as to whether the key allegedly recovered on the basis of the disclosure statement of appellant Satya Prakash @ Prakash was, the key of the Indica Car allegedly stolen by the appellants after murdering the deceased. 35. It is noteworthy that the disclosure statements (Ex.P.29) as made by accused Jitendra @ Jeetu and (Ex.P.34) as made by accused Satya Prakash @ Prakash are not attested by any witness much less by any independent witness. (Ex.P.29) was recorded on 14.12.2008 at 10.30 PM and (Ex.P.34) was recorded on 15.12.2008 at 8.15 AM. They are only signed by SHO Police Station, Amer, whereas it has been held by the Supreme Court in Harjit Singh & Ors. v. State of Punjab AIR 2002 SC 3040 the disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses. It is to be noted that section 27 of Indian Evidence Act is an exception to section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carves out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses. 36. The second circumstance pressed into by the prosecution and relied upon by the learned trial court is the identification of the appellants by witness Praveen (PW.1) during the test identification parade held by Shri Girijesh Kumar Ojha (PW.15) while he was posted as Addl. Chief Judicial Magistrate, Jaipur District. 37. Shri Girijesh Kumar Ojha (PW.15) stated that after following the procedure, on 2.1.2009 he conducted test identification parade of the appellants vide memo of test identification parade (Ex.P.67) and Praveen (PW.1) correctly identified both the appellants. Chief Judicial Magistrate, Jaipur District. 37. Shri Girijesh Kumar Ojha (PW.15) stated that after following the procedure, on 2.1.2009 he conducted test identification parade of the appellants vide memo of test identification parade (Ex.P.67) and Praveen (PW.1) correctly identified both the appellants. However, we cannot ignore the fact that witness Praveen Kumar (PW.1) in cross examination stated as under :- xxxx Surender Singh (PW.11) in the cross-examination has stated as under :- xxxx 38. Accused appellants Satya Prakash @ Prakash and Jitendra @ Jitu were arrested on 12.12.2008 from Sub-Jail Kotputli by Aaidal Prasad (PW.10) through arrest memo (Ex.P.24) and (Ex.P.25) respectively. There is no mention in the arrest memos that the accused were kept Baparda. Nothing is there in the statement of Aaidal Prasad (PW.10) that since the time of taking the appellants in custody and their reaching to Police Station Amer, they were kept Baparda. 39. In Lal Singh & Ors. v. State of U.P., AIR 2004 SC 299 , the Supreme Court held that the court must be conscious of the fact that the witnesses should have sufficient opportunity to see the accused at the time of occurrence of the incident. In case the witness has ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial and in that case, the evidence as a whole is to be considered. The prosecution should take precautions and should establish before the Court that right from the day of his arrest, the accused was kept "baparda" so as to rule out the possibility of his face being seen while in police custody. 40. In Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420 , the Apex Court held that the object of conducting Test Identification Parade is to enable witnesses to satisfy themselves that the accused who they suspect is really one who was seen by them in connection with commission of crime and to satisfy investigating authorities that suspect is really the person who witnesses had seen in connection with said occurrence. It furnishes an assurance that the investigation is proceeding along right lines, in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. Therefore, the Test Identification Parade is primarily meant for investigation purposes. (vide Malkhan Singh & Ors. It furnishes an assurance that the investigation is proceeding along right lines, in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. Therefore, the Test Identification Parade is primarily meant for investigation purposes. (vide Malkhan Singh & Ors. v. State of M.P., AIR 2003 SC 2669 ; Ankush Maruti Shinde & Ors. v. State of Maharashtra, (2009) 6 SCC 667 ; and Jarnail Singh & Ors. v. State of Punjab, (2009) 9 SCC 719 . 41. But the position would be entirely different when the accused or culprit who stands trial has been seen a number of times by the witness, as it may do away with the necessity of identification parade. Where the accused has been arrested in presence of the witness or the accused has been shown to the witness or even his photograph has been shown by the Investigating Officer prior to Test Identification Parade, holding an identification parade in such facts and circumstances remains inconsequential. (vide Shaikh Umar Ahmed Shaikh & Anr. v. State of Maharashtra, AIR 1998 SC 1922 ; Lalli @ Jagdeep Singh v. State of Rajasthan, (2003) 12 SCC 666; Dastagir Sab & Anr. v. State of Karnataka, (2004) 3 SCC 106 ; Maya Kaur Baldevsingh Sardar & Anr. v. State of Maharashtra, (2007) 12 SCC 654 ; and Aslam @ Deewan v. State of Rajasthan, (2008) 9 SCC 227 ). 42. In Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) 12 SCC 512 , the Supreme Court placed reliance upon its earlier judgment in D. Gopalakrishnan v. Sadanand Naik & Ors., AIR 2004 SC 4965 , and held that if the photograph of the accused has been shown to the witness before the Test Identification Parade, the identification itself loses its purpose. If the suspect is available for identification or for video identification, the photograph should never be shown to the witness. 43. The Test Identification Parade is not a substantive piece of evidence, yet it may be used for the purpose of corroboration; for believing that a person brought before the Court is the real person involved in the commission of the crime. However, the Test Identification Parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. However, the Test Identification Parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. (Vide State of H.P. v. Lekh Raj, AIR 1999 SC 3916 ). 44. In Mulla & Anr. v. State of Uttar Pradesh, (2010) 3 SCC 508, the Supreme Court placed reliance on Matru @ Girish Chandra v. The State of Uttar Pradesh, AIR 1971 SC 1050 ; and Santokh Singh v. Izhar Hussain & Anr., AIR 1973 SC 2190 and observed as under :- "The evidence of test identification is admissible under section 9 of the Indian Evidence Act. The Identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in the Cr.P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court." 45. Thus, it is evident from the above, that the Test Identification Parade is a part of the investigation and is very useful in a case where the accused are not known before-hand to the witnesses. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court. The Test Identification Parade provides for an assurance that the investigation is proceeding in the right direction and it enables the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them at the time of commission of offence. The accused should not be shown to any of the witnesses after arrest, and before holding the Test Identification Parade, he is required to be kept "baparda" 46. The accused should not be shown to any of the witnesses after arrest, and before holding the Test Identification Parade, he is required to be kept "baparda" 46. In view of the guidelines regarding appreciation of evidence in the matter of test identification parade, the Hon'ble Supreme Court has clearly observed that though there is no proposition of law like that that a test identification parade if it is delayed, it cannot be relied upon but what is required is that in such matters the Courts are required to scrutinize the evidence cautiously. It has also been observed by the Apex Court that it could be a reason which may create doubt. In the instant case, the evidence regarding keeping the accused persons Baparda before test identification of accused is missing as there is nothing in the testimony of Hanuman Singh (PW.9), Investigating Officer of the case and Aaidal Prasad (PW.10), who arrested the appellants from Sub-jail Kotputli. 47. Delay in holding the test identification parade has been held fatal to the prosecution by the Supreme Court in Siddanki Ram Reddy v. State of Andhra Pradesh, (2010) 7 SCC 697 wherein the Apex Court held as under :- "When an attack is made on the injured/deceased by a mob in a crowded place and the eyewitnesses had little time to see the accused, the substantive evidence should be sufficiently corroborated by a test identification parade held soon after the occurrence and any delay in holding the test identification parade may be held to be fatal to the prosecution case." 48. In the instant case, as has been observed here-in-above, the accused appellants were brought/arrested from Sub-jail Kotputli on 12.12.2008 and the test identification parade was held on 7.1.2009 without there being any explanation by the prosecution as to why such parade was not held immediately after arrest of the appellants. To us, the two lacuna on the part of the prosecution (1) not keeping the appellants 'baparda' and (2) the delay in holding the test identification without there being any explanation, are fatal to the prosecution case and on basis of such circumstance, conviction of the appellants is not safe. 49. To us, the two lacuna on the part of the prosecution (1) not keeping the appellants 'baparda' and (2) the delay in holding the test identification without there being any explanation, are fatal to the prosecution case and on basis of such circumstance, conviction of the appellants is not safe. 49. All these lacuna in the prosecution case lead us to hold that the prosecution has not been able to prove beyond reasonable doubt the recovery of the key, mobile handset and the Indica Car at the instance of the appellants and on basis of such circumstance, conviction of the appellants cannot be sustained. 50. For the discussions above, DB Criminal Appeal No. 87/2010 filed by appellant Satya Prakash @ Prakash and DB Criminal Appeal No. 44/2010 preferred by appellant Jitendra @ Jitu are allowed and the impugned judgment of conviction and sentence dated 7th December, 2009 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur in Sessions Case No. 39/2009 convicting appellants Satya Prakash @ Prakash and Jitendra @ Jeetu for the offences under Sections 302, 201 and 392/34 IPC and sentence imposed thereof are set aside. 51. Keeping in view, however, the provisions of section 437A of the Code of Criminal Procedure, 1973, accused-appellants Satya Prakash @ Prakash and Jitendra @ Jitu are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.