Full Judgment
S.K. Kulshrestha, J.
1. The appellant assails the judgment dated 28-5-1996 of the learned Third Additional Sessions Judge, Dewas in Sessions Trial No. 191/93 by which the appellant stands convicted under Section 302 of the IPC and sentenced to imprisonment for life and fine of Rs. 500/- as also under Section 394, IPC and sentenced to 5 years RI and Rs. 500/- fine.
2. The appellant was indicted for offences under Sections 302 and 394 of the IPC for having committed murder of Narmadabai and robbed of her silver ornaments viz. Anklets.
3. According to the prosecution, on that day, Narmadabai had gone to her field to cull fruits but when she did not return for long, her son Babulal instituted a search. The villagers also joined him and eventually it was found that her dead body was lying in the field of Heeralal Patidar with both her feet amputated and lying away from the rest of the body. It was also noticed that her mouth had been gagged and Anklets weighing about 1 kg, were missing. Her dead body was brought home and matter was reported to the police. Case was registered and investigation commenced. The police apprehended the appellant and on the information furnished by him in the presence of (P.W. 4) Bhagwansingh and (P.W. 5) Anil Sharma, recovered the silver ornaments. The said silver ornaments were subjected to test identification before (P.W. 19) Anantnarayan Arora, Tehsildar and Executive Magistrate, and was correctly identified by (P.W. 1) Babulal, son of the deceased. On the basis of the said evidence the appellant was prosecuted and notwithstanding that he pleaded that he was innocent and that he had not committed any offence, he was convicted and sentenced as here in above stated.
4. Learned Counsel for the appellant submits that apart from the alleged recovery of the Anklet and an Axe at the instance of the accused, there is no evidence against the accused and since the legal proof of the said recovery of the alleged incriminating articles has not been tendered, the conviction of the appellant can not be sustained.
5. Learned State Counsel, per contra, submits that the Anklet put to identification by the Executive Magistrate was duly identified in the test identification by (P.W. 1) Babulal which clearly connects the accused with the offence in question and no interference, therefore, is necessary in this appeal.
6. Before considering the effect of recovery, we may briefly refer to the evidence with regard to the recovery of the allegedly, incriminating article from the accused. According to the prosecution the recovery was made in the present of Panch witnesses (P.W. 4) Bhagwansingh and (P.W. 5) Anil Sharma. (P.W. 4) Bhagwansingh has deposed that the accused was brought by the Police to Village Jamgod where he had given statement near the School. He had stated that he had kept the Axe in the hearth inside the room. This information was recorded in Ex. P-6 and thereafter the accused had led the Police Party to his house from where he had brought out a silver Anklet and an Axe. These two articles were seized vide memo Ex. P-7 and P-8. His Trousers and Shirt was also seized vide Ex. P-9. (P.W. 5) Anil Sharma is also a witness to Ex. P-6 with regard to the information recorded under Section 27 of the Evidence Act. He is also a witness to the seizure of silver Anklet and Axe as also Shirt and Trouser. This seizure was effected by R.K. Shrivastava (P.W. 20) (SHO). He had sent these articles to the Forensic Science Laboratory and report Exs. P-17 and P-18 were received. However, nothing incriminating was found. The main argument of the learned Counsel for the appellant is that although these articles were put to test identification by (P.W. 19) Anantnarayan Arora, Tehsildar, and was allegedly identified by (P.W. 1) Babulal, son of the deceased, no effort was made to produce this article in the Court during trial to show it to the said witness and give opportunity to the defence to cross-examine (P.W. 1) in this behalf. It was also not shown to (P.W. 19) Anantnarayan Arora to lend assurance to the fact that it was the very article which was seized from the accused that had been put to test identification.
7. Even to Panch witnesses (P. W. 4) Bhagwansingh and (P. W. 5) Anil Sharma as also the Investigating Officer (P.W. 20) R.K. Shrivastava, this Article was not shown in confirmation of the fact that it was this article which had been recovered from the accused. We find substance in the contention of the learned Counsel for the appellant. It is trite to say that insofar as the evidence of test identification of articles is concerned, it being only a step in investigation, the same can not be used as substantive evidence during trial. The failure of the prosecution to exhibit the stolen property said to have been recovered from the deceased on the basis whereof the prosecution seeks the Court to draw an inference against the accused with regard to his having committed the offence alleged, is fatal to the case of the prosecution. In the present case the only circumstance pressed into service by the prosecution against the accused was the recovery of the silver Anklet said to be owned by the deceased at the time of her death and taken away by amputation of her leg. The best person who could have deposed with regard to the said Anklets as the Anklets being of the deceased was (P.W. 1) Babulal, her son, who had already testified it during test identification parade and, therefore, it was necessary for the prosecution to have shown it to him and to obtain his statement with regard to its ownership and, at the same time, given a fair opportunity to the defence to demolish the case of the prosecution. Thus in the absence of such an opportunity having been extended and the evidence having been adduced, the said circumstance can not be used against the appellant. There being no other incriminating circumstance against the appellant and the only circumstance of the recovery of Anklet having not been satisfactorily proved, we are of the view that the conviction of the appellant can not be sustained.
8. Accordingly, this appeal is allowed and the conviction of the appellant and the sentence passed against him is set- aside. Appellant is acquitted of the charges against him and set at liberty. His bail bonds shall stand discharged.