JUDGMENT : Sanjay K. Agrawal, J. 1. The present are two criminal appeals under Section 374(2) of CrPC. Cr.A. No.11/2017 has been filed by Parasram Bandhe and Cr.A. No.1892/2019 has been preferred by his wife, Anita Bai. 2. Since these appeals have arisen out of the same impugned judgment passed by the Trial Court and the question of law and facts also being similar in these appeals, they have been clubbed together, heard together and are being disposed of by this common judgment. 3. Challenge in the present appeals is to the legality, validity and correctness of the judgment and order dated 18.2.2016 passed by the Additional Sessions Judge (Atrocity), District Rajnandgaon, in Sessions Case No.45/2015, by which A-1 Parasram and A-2 Anita Bai both have been convicted and sentenced in the following manner:- Conviction Sentence 1. U/s 302/34 of IPC Imprisonment for Life and fine of Rs.100/- and in default of payment of fine amount, to undergo additional R.I. for 1 month. 2. U/s 201/34 of IPC R.I. for 3 years and fine of Rs.100/- and in default of payment of fine amount, to undergo additional R.I. for 1 month. With a direction to run both sentences concurrently. 4. In brief, the prosecution case is that during the period between 6:00 p.m. on 17.2.2015 to 11:00 a.m. on 18.2.2015, A-1 Parasram & A-2 Anita Bai along with the other juvenile co-accused, i.e., their son, Bhagwandas, in furtherance of their common intention, strangulated Belsiya Bai to death by pressing pillow on her neck and mouth and further concealed the evidence by hiding the pillow used in the said offence to screen themselves from legal punishment, thereby committed offence punishable under Sections 302, 201/34 of IPC. 5. The matter was reported by Kolhudas/Kolhuram (PW-8) at Police Station Gaindatola on 18.2.2015 at 2:00 p.m. stating that on 17.2.2015 he along with his entire family had gone to watch ramayan competition organized in their village and his father Sawantram and mother Belsiya Bai had come back to home at 6:00 pm. At 8:00 p.m., when he searched his mother Belsiya Bai for dinner, she was not found in the house and then he searched her everywhere around but she could not be traced. At 8:00 p.m., when he searched his mother Belsiya Bai for dinner, she was not found in the house and then he searched her everywhere around but she could not be traced. In the next morning, i.e., on 18.2.2015, at 11:00 a.m., his younger sister, Meena Bai, noticed the dead-body of their mother, Belsiya Bai, in canal drain near the field of Khemlal Sinha. Injuries were visible on her neck and her silver rings, golden necklace and nose ring were missing from her body. 6. On the said report, Merg Intimation was recorded vide Exhibits P-22 & P-23 and then FIR was registered vide Exhibit P-30 against the unknown person for the said offences. Spot Map was prepared vide Exhibit P-26. Inquest proceeding was conducted vide Exhibit P-3 and the dead-body of Belsiya Bai was subjected to post-mortem which was conducted by Dr. A.K. Basod (PW-4) vide Exhibit P-20A. Memorandum statement of A-1 Parasram was recorded vide Exhibit P-5 pursuant to which, 9 gold leaves and 4 gold beads were recovered vide Exhibit P-6. Similarly, the memorandum statement of A-2 Anita Bai was recorded vide Exhibit P-7 pursuant to which, one pair of silver ring was recovered vide Exhibit P-8. Likewise, pursuant to the memorandum statement (Exhibit P-9) of juvenile co-accused Bhagwandas, one golden nose ring was seized vide Exhibit P-10. Thereafter, the accused persons were arrested. Article A-1 is the thumb impression page seized vide Exhibit P-11. Statements of the witnesses were recorded under Section 161 of CrPC. 7. Subsequently, with a delay of about two months, an application dated 13.4.2015 (Exhibit P-31) was made by the S.H.O., Police Station Gaindadatola to the Executive Magistrate, Chhuriya requesting for test identification of the seized gold and silver ornaments. Pursuant to the said request, vide Exhibit P-19, test identification was conducted on 16.4.2015 by the Executive Magistrate, PW-17 F.R. Thakur, in presence of Shyamlal (PW-2) and Dashrath Mandle (PW-9) and in the said proceeding, the gold and silver ornaments were identified by PW-8 Kolhuram to be that of his mother, deceased Belsiya Bai. 8. Pursuant to the said request, vide Exhibit P-19, test identification was conducted on 16.4.2015 by the Executive Magistrate, PW-17 F.R. Thakur, in presence of Shyamlal (PW-2) and Dashrath Mandle (PW-9) and in the said proceeding, the gold and silver ornaments were identified by PW-8 Kolhuram to be that of his mother, deceased Belsiya Bai. 8. After completion of the investigation, while the judvenile co-accused, Bhagwandas, was charge-sheeted before the Juvenile Court, the two appellants herein were charge-sheeted for the offences punishable under Sections 302, 201/34 of IPC before the Judicial Magistrate First Class, Rajnandgaon from where the case was committed to the Sessions Court, Rajnandgaon and after committal, the matter was transferred to the Court of Additional Sessions Judge (Atrocity), Rajnandgaon for trial and its disposal in accordance with law, in which they abjured their guilt, took a plea of false implication and entreated for trial. 9. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 17 witnesses and exhibited 32 documents. In defence, though no witness has been examined but the statements of the complainant Kolhudas Mandle and Hriday Ram Sinha have been cited Ex. D-1 & D-2. Statements of the appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 10. After conclusion of the trial, the Trial Court, by impugned judgment and order dated 18.2.2016, on appreciation of the oral and documentary evidence available on record, has convicted the two appellants herein for the offences punishable under Sections 302, 201/34 of IPC and sentenced them in the manner as mentioned at the table shown in para-3 of this judgment, assailing which the present criminal two appeals have been filed separately by the appellants herein. 11. Ms. Sofia Khan, learned counsel appearing for the appellant, would firstly submit that the gold and silver ornaments were seized from the possession of the accused persons and taken into custody on 21.2.2015 but the same were put to identification only on 16.4.2015 pursuant to the request made by the S.H.O., Police Station Gaindatola to the Executive Magistrate on 13.4.2015 and the copy of Malkhana register where the said ornaments were deposited has not been produced, therefore, the entire identification proceeding becomes doubtful. She would further submit that pursuant to the memorandum statements of the accused persons, the recovery of gold and silver ornaments were made on 21.2.2015 and they were arrested on the same day itself but the S.H.O. had initiated the proceeding for identification of the said ornaments for the first time on 13.4.2015 and thereafter the test identification was held on 16.4.2015 after delay of about two months, which is one of the grave incriminating circumstances and which creates doubt on the prosecution case. Even otherwise, on the basis of recovery which is a weak piece of evidence, the appellants herein could not have been convicted for the offence of murder punishable under Section 302 of IPC. As such, the two appellants herein are liable to be acquitted on the basis of benefit of doubt and the appeal deserves to be allowed. 12. Per contra, Mr. Sudeep Verma, learned Deputy Government Advocate, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the gold and silver ornaments seized pursuant to the memorandum statements of A-1 Parasram and A-2 Anita Bai have been duly identified by Kolhuram (PW-8) to be that of his mother, deceased Belsiya Bai, which has not been questioned on behalf of the appellants herein and therefore the foundation of delay in the test identification proceeding would not affect the prosecution case and the appeal deserves to be dismissed accordingly. 13. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 14. The date of offence in the instant case is 17/ 18.2.2015. The memorandum statement of A-1 Parasram was recorded on 21.2.2015 at 4:00 p.m. vide Exhibit P-5 in presence of Shyamlal (PW-2) and Dashrath Mandle (PW-9) and pursuant to which, 9 gold leaves ( lksus dh iRrh ) and 4 gold beads ( lksus dk xsagw nkuk ) were recovered vide Exhibit P-6 on the same day at 4:45 p.m. Similarly, the memorandum statement of A-2 Anita Bai was recorded on 21.2.2015 at 4:10 p.m. vide Exhibit P-7 in presence of the aforesaid witnesses and pursuant to which, one pair of silver ring ( pkanh dh ,SaBh ) was recovered vide Exhibit P-8 on the same day at 5:15 pm. Likewise, pursuant to the memorandum statement (Exhibit P-9) of juvenile co-accused Bhagwandas, one golden nose ring ( lksus dh QqYyh ) was seized vide Exhibit P-10 on the same day at 5:25 p.m. Thereafter, on the same day i.e., on 21.2.2015, A-1 Parasram was arrested at 8:05 p.m and A-2 Anita at 8:10 p.m. vide Exhibits P-15 & P-16. 15. Admittedly, the gold and silver ornaments were seized on 21.2.2015 pursuant to the memorandum statements of the accused persons and placed in safe custody vide Exhibit P-21. Subsequently, with a delay of about two months, vide Exhibit P-31 dated 13.4.2015, the S.H.O., Police Station Gaindatola made a request to the Executive Magistrate for conducting identification proceeding in respect of the seized gold and silver ornaments by the complainant Kolhuram (PW-8). Pursuant to the said request, vide Exhibit P-19, identification proceeding was conducted by the Executive Magistrate, PW-17 F.R. Thakur, on 16.4.2015 in presence of Shyamlal (PW-2) and Dashrath Mandle (PW-9) and in the said proceeding, the seized gold and silver ornaments were identified by PW-8 Kolhuram to be that of his mother, deceased Belsiya Bai. PW-17 F.R. Thakur, the Executive Magistrate, in his statement before the Court has stated that he had received the articles/ornaments only on 16.4.2015 and the identification proceeding was conducted on the same day itself at 12:15 p.m. in the Tahsil office. Further, he himself stated that he had arranged the similar articles/ornaments to be mixed with the original ones through his staff. He further stated that he did not remember whether the articles identified by the complainant were old and the articles which were mixed were new. 16. The fact remains that the Executive Magistrate (PW-17) received the articles on 16.4.2015 itself, i.e., the date on which the identification proceeding was conducuted. The said articles must have been received at office hours. The identification proceeding was conducted at 12:15 p.m. on 16.4.2015 and within no time, the Executive Magistrate arranged all the articles i.e. 9 gold leaves and 4 gold beads, one pair of silver ring and one golden nose ring and that too in three identical sets. The said articles must have been received at office hours. The identification proceeding was conducted at 12:15 p.m. on 16.4.2015 and within no time, the Executive Magistrate arranged all the articles i.e. 9 gold leaves and 4 gold beads, one pair of silver ring and one golden nose ring and that too in three identical sets. It appears to be improbable that within hours, the Executive Magistrate and his staff were able to arrange three sets of identical gold and silver ornaments in the test identification proceeding particularly, when the Executive Magistrate himself could not state whether the articles identified by the complainant were old or the articles mixed were new ones more particularly, when in Exhibit P-21, there is no endorsement that the seized articles which were deposited on 21.2.2025 were in-fact released or handed over to the Executive Magistrate (PW-17) for the purpose of conducting test identification proceeding in respect of those articles and it could have been mentioned in Exhibit P-21, as vide Exhibit P-24, the seized articles which were sent for examination to the Forensic Science Laboratory were already mentioned in Exhibit P-21. In the absence of which, there appears to be serious doubt on the prosecution case that the identification proceeding in respect of the seized gold and silver ornaments has been conducted properly. Even otherwise, the seizure of articles was made on 21.2.2015 and the request for identification proceeding of those articles was made by the S.H.O. for the first time on 13.4.2015, i.e., after a period of about two months, and thereafter the identification proceeding was conducted on 16.4.2015. 17. The Supreme Court in the matter of State of Madhya Pradesh v. Narendra & Ors., (2019) 15 SCC 659 , has declined to accept the test identification which was conducted after so many days and observed in para-6 as under:- “6. The High Court has, thus, rightly come to the conclusion and disbelieved the manner in which the articles were seized by the investigating officer. Apart from that, stolen articles, which were alleged to have been recovered from the possession of Respondents 1 to 3 were put to test identification after so many days and there is no explanation as to why the test identification was arranged after a considerably long time. Thus, there is serious doubt in regard to seizure of the stolen articles.” 18. Thus, there is serious doubt in regard to seizure of the stolen articles.” 18. Similarly, in the matter of Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372, the identification of property and currency notes were made after a delay of more than five weeks of holding test identification and since the delay was unexplained, their Lordships declined to accept the identification by the witnesses holding the identification to be doubtful. 19. In view of the discussion made herein above and in light of the aforesaid decisions of the Supreme Court, we are of the considered opinion that though the prosecution as per the post-mortem report (Exhibit P-20A) proved by Dr. A.K. Basod (PW-4) opining the cause of death to be strangulation resulting in asphyxial death, has been able to prove the death of Belsiya Bai to be homicidal in nature but the delay of about two months occurred in the identification proceeding in respect of the seized gold and silver ornaments appears to be doubtful more particularly, when the prosecution itself has failed to establish that the articles/ornaments were received by the Executive Magistrate for test identification proceeding, after having been deposited. Furthermore, considering the nature of evidence available on record, it would be unsafe to maintain the conviction of the two appellants herein on the basis of said recovery, as in the light of Mani v. State of Tamil Nadu, (2009) 17 SCC 273 , recovery is a weak kind of evidence and cannot be wholly relied upon. 20. Accordingly, the impugned judgment dated 18.2.2016 passed by the Trial Court, convicting and sentencing the two appellants herein for the offences punishable under Sections 302, 201/34 of IPC, is hereby set aside and the appellants are acquitted of the said charges on the basis of benefit of doubt. Both the appellants are stated to be in jail since 21.2.2015. They be released from jail forthwith, if their detention is not required in connection with any other offence. 21. The criminal appeals are allowed. 22. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and the Superintendent of Jail for information and necessary action at the earliest.