Tuesday, 22 December 2015

Procedure to be followed by police for conducting a test identification parade of recovered property

For, Rule 7.32 of the Rajasthan
Police Rules, 1965, (‘the Police Rules’, for short)
prescribes complete procedure for conducting a test
identification parade of recovered property.
Rule-7.32 of the Rajasthan Police Rules is as
under:-
“7.32 Identification of property.-
(i) It is of utmost importance that the articles
of property seized by the investigating agency
shall be properly scaled on the spot and it
should be ensured that the seals are intact.
(ii) The number of articles to be mixed up with
the articles of property required to be put to
identification test should rest with the
Magistrate before whom the proceedings are to be
carried on.
(iii) The articles of property to be mixed up to
with the articles of property put for the
purpose of identification should also be
contained in scaled bundles.
(iv) The seals must be all along intact and can
only be opened before the Magistrate conducting
the identification proceedings.
(v) As in the identification parade of suspects,
witnesses are to be called one by one and no
succeeding witness should communicate in any
manner with the preceding one.
(vi) It is also important to note that the
articles to be mixed up should be similar in
appearance to those for identification.
(vii) The prosecuting inspector or the
prosecuting sub-inspector may be present at the
time of identification proceedings.
(viii) The articles to be mixed up should be
arranged for production according to the
instructions of the Government which they may
issue in this behalf. However, there should be
given no chance, whatsoever for an objection
that the articles brought for being mixed up
were exposed to the identifying witness before
identification proceedings took place. The
arranging of such articles to all intents and
purposes should be by an agency other than the
police.
(ix) Proceedings of the identification of
property shall be recorded in Form 7.32(ix).”
According to this provision, a Magistrate is
supposed to ensure that similar looking articles are
mixed with the recovered articles. The witnesses are
supposed to identify the recovered articles while
they are mixed with other similar looking articles.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
JUDGMENT
 D.B. Criminal Appeal No.530/2004
(Sohan @ Sovan v. State of Rajasthan)

Date of Judgment:- January 23rd, 2015
PRESENT HON'BLE MR. JUSTICE R.S.CHAUHAN
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Citation; 2015(4) Crimes 300 Raj



Aggrieved by the judgment dated 25.2.2004,
passed by the Additional Sessions Judge (Fast Track)
No.1, Ajmer, two different appeals have been filed
before this court by the appellants, namely by Sohan
@ Sovan, and Mohan. While Sohan @ Sovan has filed
D.B. Cr. Appeal No.530/2004, Mohan has filed D.B. Cr.
Appeal 341/2004. By judgment dated 25.2.2004, the
learned Judge has convicted and sentenced both the
appellants as under:-
Appellant Sohan @ Sovan:
For offence under Section 302 IPC: Life
imprisonment, fined Rs.5000/-, and further
directed to undergo six months of simple
imprisonment in default thereof.
For offence under Section 379 IPC: Three
years of rigorous imprisonment, fined
1Rs.2000/-, and further directed to undergo
two months of simple imprisonment in default
thereof.
For offence under Section 201 IPC: Three
years of rigorous imprisonment, fined
Rs.2000/-, and further directed to undergo
two months of simple imprisonment in default
thereof.
Appellant Mohan Singh:
For offence under Section 411 IPC: Two years
of rigorous imprisonment, fined Rs.2000/-,
and further directed to undergo two months
of imprisonment in default thereof.
Meanwhile, the learned Judge had acquitted Smt.
Gaini, a co-accused in this case, for offences under
Sections 364, 302, 120B, 384, 201 IPC. Since both the
appeals are out of the same impugned judgment, they
are being decided by this common judgment.
Briefly, the case of the prosecution is that on
5.3.1998, one Hari Singh submitted a written report
(Ex.P.30) before the Superintendent of Police, Ajmer
wherein he claimed that, “I Hari Singh S/o. Harji
Singh, by caste Rawat, am resident of village Kotda.
My wife, Smt. Roopi Devi, aged 40 years sells
vegetables at Padav and my son, Vijay Singh, aged 21
years also sells vegetables on a handcart in front of
the Oriental Bank. On 1.3.1998, my wife, Roopi Devi,
aged 40 years, closed her vegetable stall at 8.00 PM
and told my son, Vijay Singh, that she is going with
Byanji (a son’s/daughter’s mother-in-law), who has a
motorcycle, in order to see a girl at Makadwali. She
further told him that either she would come back at
2that night itself, or by tomorrow morning. Even
earlier on 18.2.1998, Sohan S/o. Nanu, his wife, my
wife and my wife’s uncle (Phoopha) had gone to
Village Bhawani Khera for arranging a matrimonial
relation for my brother-in-law’s (Sala’s) son. They
had come back on the next day. After this, on
1.3.1998, Sohan and his wife have taken my wife away
on the pretext of showing her a girl. But we don't
know where she is. I have searched for her at the
places where I have relatives. My wife was wearing
certain jewelry including a gold ‘Bor’ (an ornaments
worn by married women in Rajasthan over their
forehead), gold ‘Mandliya’ (pieces of gold strung
together in a blanket), a gold ‘Nath’ (nose ring),
gold earrings, silver anklets, silver ‘Aanwale’,
silver Kadas (bracelets). She was also carrying about
Rs.2000-2500 with her, which she had earned by
selling vegetables. I suspect that both the husband
and the wife have abducted my wife and have killed
her. Therefore, I request you to investigate in
detail, and to apprehend these two persons because on
1.3.1998 at about 8.00 P.M., my son Vijay Singh had
seen my wife with Sohan’s wife. Two more boys, who
sell their vegetables near Vijay, namely Mohan S/o.
Kalu Singh Rawat, r/o. Ladpura, and Sookha S/o.
Gaina, r/o. Kanas, have also seen my wife leaving
with Sohan’s wife. We have not been able to locate my
wife so far. We inquired from Sohan and his wife
3also. But they claimed that my wife did not go with
them. I am submitting this report after having
searched for her for many days. Appropriate legal
action should be taken.”
The said report was sent by the Additional
Superintendent of Police, Ajmer to the SHO, Police
Station Clock Tower with a direction to register a
case. On the same day at 5.00 PM, the complainant
submitted the same report before the Police Station
Clock Tower. On the basis of the said report, a
formal FIR (Ex.P.31), namely FIR No. 35/1998 was
chalked out for offence under Section 366 IPC; the
investigation commenced.
During the course of investigation, both Sohan
and his wife, Gaini, were arrested. Upon a statement
(Ex.P.32) given by Sohan under Section 27 of Evidence
Act, the dead body of Roopi Devi, the complainant’s
wife, was recovered from a culvert near Anna Sagar
lake (a lake situated in center of Ajmer). Also
during the course of investigation, the police
arrested the other co-accused, namely Mohan. After
completion of the investigation, the police filed a
charge-sheet against Sohan, his wife, Gaini, and
Mohan. After the case was committed to the Sessions
Court, the accused were charged for offences under
Sections 364, 302, 120B, 384 and 201 IPC. In order to
prove its case, the prosecution examined twenty-four
witnesses, and submitted forty-seven documents. The
4defense examined a single witness, and submitted
three documents. After completing the trial, the
learned trial court convicted and sentenced Sohan and
Mohan, as aforementioned, and acquitted Smt. Gaini of
the charges mentioned above. Hence, both these
appeals by Sohan and Mohan before this court.
Mr. Vinay Pal Yadav, the learned counsel for the
appellants, has raised the following contentions
before this court: firstly, the case is based
entirely on circumstantial evidence. However, none of
the links of the chain of circumstances even remotely
point to the guilt of the appellants. The prosecution
stands on a very weak wicket. They have failed to
prove the case beyond a reasonable doubt against the
appellants.
Secondly, the prosecution has stacked the
following evidence against Sohan @ Sovan: (a) Roopi
Devi’s dead body was recovered at his instance; (b)
during investigation, allegedly, he informed the
police that he had traded the silver bangles and the
anklets worn by Roopi Devi at Lekhraj’s shop. From
Lekhraj (P.W.10) he had bought new silver bracelets
and anklets for his wife, Smt. Giani. Upon this
information, the new silver bracelets and anklets
were recovered from Sohan’s wife, Smt. Gaini; (c) a
gold nose ring and a pair of earrings, worn by Roopi
Devi, were also recovered at his behest; (d) the rope
which was used to tie the gunny bag in which Roop
5Devi’s dead body was tied up, the remaining part of
the said rope was also recovered at the behest of
this accused; (e) the motorcycle which was used to
take away Roopi Devi was also recovered at the
instance of this accused; (f) the place where Roopi
Devi was allegedly killed was also pointed out by
this accused.
However, according to the learned counsel since
the dead body was recovered from an open culvert, it
was recovered from an open place. Therefore, the
specific knowledge that the dead body is lying at an
open place cannot be attributed to the accused.
Further, the recovered gold ornaments, worn by the
deceased, were never subjected to a test
identification parade. Therefore, the recovery of the
nose ring and the gold earrings loses its
significance. Furthermore, the mere recovery of the
motorcycle and the recovery of the remaining part of
the rope are innocuous. For, the motorcycle has not
been identified by the witnesses who claimed to have
last seen Roopi Devi with the accused. Further, since
the rope did not contain any blood, the recovery of a
piece of rope is immaterial. Moreover, there is no
evidence to prove that the discovered piece of rope
belonged to the same rope which was used to tie up
the gunny bag. Lastly, since no incriminating
evidence was recovered from the place where allegedly
Roopi Devi was killed, the pointing out of the said
6place is irrelevant. Therefore, these disjointed
pieces of evidence do not even form a chain of
circumstances pointing towards the guilt of the
accused, Sohan.
Thirdly, as far as Mohan is concerned, the
learned counsel has claimed that the following
evidence were read against him: (a) the accused has
pointed the place where Roopi Devi was allegedly
killed; (b) upon his information given under Section
27, Evidence Act (Ex.P.40), Roopi Devi’s ‘Jooties’
(shoes) were recovered from the possession of the
accused; (c) upon his information given under Section
27, Evidence Act (Ex.P.42), Rs.700/- were recovered
as the amount paid by this accused to Mr. Shankar Lal
(P.W.18) for repairing Sohan’s motorcycle; (d) the
gold ‘Bor’ and the ‘Mandliya’ worn by the deceased
were recovered at the instance of this accused.
However, according to the learned counsel, since
the jewelry pieces and the Jooti, allegedly belonging
to the deceased, were never subjected to a test
identification parade, therefore, the recovery of
these articles was meaningless. Further, merely
pointing out the room where allegedly Roopi Devi was
killed is equally irrelevant. For, no incriminating
evidence was picked-up from the said room by the
investigating agency. Lastly, the recovery of
Rs.700/- looses its significance as Mr. Shankar Lal
(P.W.18) has turned hostile and has claimed that this
7accused never brought a motorcycle to his shop for
repairing. Therefore, mere recovery of Rs.700/- is
immaterial.
On the other hand, Mr. N.S. Dhakar, the learned
Public Prosecutor has vehemently raised the following
pleas: firstly, the prosecution has well established
its case against both the appellants.
Secondly, Durga Singh (PW.11) and Mr. Vijay
Singh (P.W.7) have categorically stated that they saw
Roopi Devi going with Sohan and his wife on a
motorcycle. Sohan has not offered any explanation
about the whereabouts of Roopi Devi after she was
last seen with him and his wife.
Thirdly, as far as Sohan is concerned, Roopi
Devi’s dead body was recovered at his instance; the
place where she was allegedly killed was pointed out
by him; he has offered an explanation with regard to
the silver jewelry worn by his wife which was also
recovered from his wife, Smt. Gaini. Roopi Devi’s
gold nose ring and the earrings were also recovered
from the possession of Mr. Lekhraj (P.W.10) to whom
this accused had pawned the jewelry. Lastly, the
motorcycle which was used for taking away Roopi Devi
was also recovered at the instance of this accused.
All these pieces of evidence when fused together
positively point to the guilt of this accused.
Fourthly, as far as Mohan is concerned, like
Sohan he too pointed out the place where Roopi Devi
8was allegedly killed; at his instance the jewelry
belonging to the deceased was recovered by recovery
memo (Ex.P.11). Thus, the prosecution has also
succeeded in establishing its case against this
accused. Therefore, the learned Public Prosecutor has
supported the impugned judgment.
Heard the learned counsel for the parties,
perused the record and examined the impugned
judgment.
Needless to say, the entire case is based on
circumstantial evidence. The rule governing
appreciation of evidence in case based on
circumstantial evidence is not only well known, but
has also been recently reiterated by the Apex Court
in the case of Balkar Singh v State of Haryana [2014
(13) SCALE 63]. The Hon’ble Supreme Court has
observed as under:-
(1)….Certainly, it is a primary principle
that the accused must be and not merely may
be guilty before a court can convict and the
mental distance between 'may be' and 'must
be' is long and divides vague conjectures
from sure conclusions.
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is
guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
9ground for the conclusion consistent with
the innocence of the accused and must show
that in all human probability the act must
have been done by the accused.
Therefore, these principles would have to be
kept in mind while appreciating the evidence in the
present case.
It is, indeed, trite to state that One of the
settled principles of criminal jurisprudence is that
there is a vast distance between “may be true” and
“must be true”. The prosecution has to cover the said
distance. The prosecution is required to prove its
case beyond a reasonable doubt. The case must be
proven by cogent and convincing evidence. Therefore,
no matter how strong the suspicion may be, but it
cannot take the place of proof. [Ref. to Mohammad
Faizan Ahmad @ Kalu v. State of Bihar, (2013) 2 SCC
131, Rajkumar Singh v. State of Rajasthan, (2013) 5
SCC 722, Sujit Biswas v. State of Assam, 2013
Cr.L.J. 3140 (SC)].
As far as Sohan is concerned, the first piece of
evidence against him is the evidence of last seen.
However, this evidence is extremely weak evidence
against him. For, in his examination-in-chief, Vijay
Singh (P.W.6) informs the court that “Sohan’s wife,
Gaini, came to my mother around 2.00-2.30 P.M. Gaini
told my mother and told her that she has come to take
her to Makadwali for the purpose of showing a girl
for my uncle’s (Mama’s) son. Around 8.00 P.M., after
10closing the vegetable stall, my mother came to me at
my handcart. My mother told me that she is going with
Gaini Byanji to Makadwali for the purpose of seeing a
girl. She also told me that Gaini’s husband, Sohan,
has a motorcycle, and that he is waiting for us at
the Clock Tower (Ghanta Ghar). She is going with them
and will be back either tonight, or tomorrow
morning”. This testimony clearly proves that Vijay
Singh saw his mother leaving only with Gaini, but not
with Sohan. Therefore, on the last occasion he had
seen his mother leaving only with Gaini and not with
Sohan.
Similarly, Mohan Singh (P.W.4) informs the court
that he saw Roopi leave with Gaini. Therefore, even
according to this witness, Roopi was not seen going
with Sohan.
Although, Durga Singh (P.W.11) claims to have
seen Roopi Devi leave with Sohan and Gaini, and a
child, but even the trial court has not believed him.
For, according to the learned trial court, Durga
Singh seems to be narrating the incident of 19.2.1998
and not of the incident of 1.3.1998. Moreover, Durga
Singh claims that “when Roopi was leaving, even her
husband, Hari Singh, was present there who left his
daughter to look after the vegetable stall run by
Roopi Devi.” However, this part of Durga Singh’s
testimony has not been corroborated by Vijay Singh
(P.W.6). Therefore, considering the testimonies of
11these three witnesses, it cannot be said that they
had seen Roopi Devi for the last time in the company
of Sohan. Therefore, the evidence of ‘last seen’
cannot be read against Sohan.
Even if the theory of last seen were to be
accepted theoretically, the difference between the
time when Roopi Devi was last seen and the time when
her body was discovered is too great. Allegedly, she
was last seen on 1.3.1998 with Gaini, and her body
was discovered on 5.3.1998, i.e. after a delay of
four days. The investigating agency has failed to
discover if Gaini had, indeed, taken Roopi Devi to
Makadwali, or not? Or if from Makadwali Roopi Devi
had returned in the company of Gaini and Sohan or
not? Moreover, there is no evidence to show that the
place where Roopi Devi’s body was eventually
discovered is near about the place where she was last
seen in Gaini’s company. The difference in ‘distance
and time’ has snapped the linking evidence of last
seen. Most importantly, the evidence of last seen is
too weak an evidence for convicting the accused,
especially in the present case when the said evidence
is not very cogent and convincing. Hence, it is a
folly to read the evidence of last seen against
Sohan.
The prosecution has stressed on the fact that
from Sohan the gold nose ring and a pair of earrings
were discovered at his instance by recovery memo
12(Ex.P.6). According to Madho Singh (P.W.24), on
7.3.1998, Sohan gave an information under Section 27,
Evidence Act (Ex.P.34) wherein he claimed that he had
pawned a gold nose ring and two earrings belonging to
Roopi Devi to a Jeweler, Lekhraj (P.W.10) and he
could take the police to Lekhraj’s shop.
Consequently, Sohan took the police to a place called
‘Golpyau’ and pointed to a shop belonging to Lekhraj
(P.W.10). He informed the police that the person
standing there is Lekhraj (P.W.10) to whom he had
pawned the articles. Consequently, by recovery memo
(Ex.P.6), the police recovered both the articles.
However, Lekhraj (P.W.10) has turned hostile, as he
has refused to identify the person who had pawned the
gold nose ring (Article-1). Moreover, he has claimed
that the person had pawned only a nose ring (Article-
1) and not the earrings (Article-2).
Most importantly, the nose ring and the two
earrings allegedly recovered upon Sohan’s information
were never subjected to a test identification parade.
Madho Singh (P.W.24), the investigating officer,
explains in his cross-examination that the reason why
he did not subject the recovered jewelry to a test
identification parade is “because at the time of
recovery, Hari Singh, the complainant, was with him.
When jewelry items were recovered, Hari Singh
immediately identified the jewelry items as belonging
to Roopi Devi.” However, such an explanation is
13clearly unacceptable. For, Rule 7.32 of the Rajasthan
Police Rules, 1965, (‘the Police Rules’, for short)
prescribes complete procedure for conducting a test
identification parade of recovered property.
Rule-7.32 of the Rajasthan Police Rules is as
under:-
“7.32 Identification of property.-
(i) It is of utmost importance that the articles
of property seized by the investigating agency
shall be properly scaled on the spot and it
should be ensured that the seals are intact.
(ii) The number of articles to be mixed up with
the articles of property required to be put to
identification test should rest with the
Magistrate before whom the proceedings are to be
carried on.
(iii) The articles of property to be mixed up to
with the articles of property put for the
purpose of identification should also be
contained in scaled bundles.
(iv) The seals must be all along intact and can
only be opened before the Magistrate conducting
the identification proceedings.
(v) As in the identification parade of suspects,
witnesses are to be called one by one and no
succeeding witness should communicate in any
manner with the preceding one.
(vi) It is also important to note that the
articles to be mixed up should be similar in
appearance to those for identification.
(vii) The prosecuting inspector or the
prosecuting sub-inspector may be present at the
time of identification proceedings.
(viii) The articles to be mixed up should be
arranged for production according to the
instructions of the Government which they may
issue in this behalf. However, there should be
given no chance, whatsoever for an objection
that the articles brought for being mixed up
were exposed to the identifying witness before
identification proceedings took place. The
14arranging of such articles to all intents and
purposes should be by an agency other than the
police.
(ix) Proceedings of the identification of
property shall be recorded in Form 7.32(ix).”
According to this provision, a Magistrate is
supposed to ensure that similar looking articles are
mixed with the recovered articles. The witnesses are
supposed to identify the recovered articles while
they are mixed with other similar looking articles.
However, the said procedure has not been followed in
the present case.
Moreover, according to Madho Singh (P.W.24)
since Hari Singh had expired, he could not subject
the recovered articles to a test identification
parade. But even this explanation is a mere excuse
and not a valid justification. For, even after the
expiry of Hari Singh, his son, Vijay Singh (P.W.6)
was readily available to the investigating agency.
Vijay Singh, being Roopi Devi’s son, could have
readily identified his mother’s jewelry.
In catena of cases, the Hon’ble Supreme Court
has clearly observed that in case a recovered article
is not subjected to test identification parade, the
recovery loses its significance. Since the gold
jewelry recovered both at the instance of Sohan and
at the instance of Mohan have never been subjected to
a test identification parade, the recoveries from
both the appellants are irrelevant.
15Similar reasoning can also be applied to the
alleged recovery of the Jooties (shoes) made at the
instance of Mohan. For, even the said Jooties was not
put up for a test identification parade. Therefore,
whether the actual Jooties belonging to the deceased
were recovered at Mohan Singh’s instance, is a fact
which is unknown. Therefore, the alleged recovery of
the Jooties made at Mohan’s instance is immaterial.
The prosecution has also stressed on the fact
that at Sohan’s instance, the remaining part of the
rope which was used to tie-up a gunny bag in which
Roopi’s body was recovered from his room. However,
there is no evidence to establish the fact that the
recovered rope at Sohan’s instance was, indeed, “the
remaining part of the rope used to tie-up the gunny
bag.” For, there is no FSL report which establishes
the fact that the fibers of the rope are similar in
their texture, design or direction. In the absence of
this evidence, an inference cannot be drawn that the
recovered piece of rope belonged to the rope used for
tying up the gunny bag. Further, ropes are not
unusual articles which cannot be found in a person’s
house. Thus, the alleged recovery does not connect
Sohan to the alleged crimes.
Both Sohan and Mohan had allegedly identified
the room where allegedly Roopi Devi was killed.
However, as no incriminating evidence was recovered
from the said room, therefore the mere identification
16of the room is irrelevant. Moreover, since Sohan had
already identified the said room, the identification
by Mohan loses its significance.
Another piece of evidence said to be against
Sohan is the fact that during the police custody he
informed the investigating agency that he had given
the silver bracelet and anklets belonging to Roopi
Devi to Hemendra (P.W.8) for buying new bracelet and
anklet for his wife, Gaini. Upon this information,
the police had the new silver bangles and the
anklets, worn by Gaini, photographed (Ex.P.44 and
Ex.P.45). The new silver bangles and anklets were
also recovered by recovery memo (Ex.P.5).
But in his examination-in-chief, Hemendra
(P.W.8) tells the court that “About four or four and
a half years ago, I was called by the police. I had
gone to the police station Clock Tower. They asked me
about the silver bangles and the silver anklets that
I had made. A woman named Gaini and a man with her
had brought old silver to my shop. Since its long
time ago, therefore, I cannot recognize them. The man
and woman were thin. But I cannot recognize them
today. I could recognize the bangles and the anklets,
which I had made, and which were worn by this woman
at the police station. I charged them Rs.255 to 250
for labor. While the bangles were about 225 gms., the
anklets were about 450 gms. in weight. The jewelry I
had recognized was left at the Police Station. I
17cannot remember if the police had the jewelry weighed
or not. The police was conducting its investigation,
but what it was doing I do not remember. I don’t
remember as to when the police asked me to sign
Exhibit-P.5”. At this stage, the Additional Public
Prosecutor declared this witness as hostile.
 In further examination by the Additional Public
Prosecutor this witness stated that “It is true that
the police had asked me to cut the bangles and the
anklets, which I did. But I do not remember whether
police had sealed these articles in a piece of cloth.
It is true that Exhibit-P.5 was prepared before me
and bears my signature”.
In his cross-examination by the defense counsel,
this witness stated that “He was called at the police
station in the afternoon. When he signed the paper,
Lekhraj was also there. The police kept me in the
police station till the evening. What is written in
Exhibit-P.5, I do not remember. I cannot tell for
what reasons Exhibit-P.5 bears three different seals.
I was not asked to identify these articles before a
Magistrate. I do not maintain any accounts of my
shop. I make new jewelry from old silver. It is
incorrect to say that a woman by the name of Gaini
did not bring old silver to me and that I did not
make new anklets for her. I have no knowledge about
What the police was writing,”.
18A bare perusal of this testimony clearly reveals
that the witness does not claim that Gaini and a man
with her had brought with them silver bangles and
silver anklets. He merely claims that “old silver”
was brought to him. What was the nature and form of
“the older silver” has not been revealed by this
witness. Therefore, it cannot be inferred that Gaini
and the man with her had given this witness a pair of
old silver bangles and a pair of old silver anklets.
Moreover, this witness does not give any description
of the jewelry allegedly given by Gaini and the man
with her. Even these new silver bangles and new
anklets have not been subjected to a test
identification parade. For, the witness clearly
stated that these new silver bangles and anklets were
not identified by him before a Magistrate. Further,
this witness does not reveal the basis for his
identifying the new silver bangles and new silver
anklet as having been manufactured by him. Most
importantly, he does not identify Sohan and Gaini, in
the court, as the persons who had brought “old
silver” to his shop. Thus, the statement given by
Sohan that he had given the old silver bangles and
old silver anklets belonging to Roopi Devi to this
witness cannot be read against him. For, the said
statement was given by him during his police custody.
Hence, the recovery of the new set of silver bangles
and silver anklet cannot be read against Sohan.
19The last piece of evidence against Sohan is the
alleged recovery of the motorcycle. However, even
this recovery is innocuous. For, no incriminating
evidence has been procured from the said motorcycle.
Moreover, no one has identified the motorcycle as the
one used by Sohan for driving away Roopi Devi with
his wife. Therefore, the recovery of the motorcycle
does not connect Sohan to the alleged offence.
As far as the recovery of the jewelry items is
concerned from Mohan, since the prosecution has
failed to prove that the items so recovered actually
belonged to Roopi Devi, the learned Judge is
unjustified in concluding that Mohan had received, or
kept stolen property. Hence, his conviction for
offence under Section 411 IPC is clearly unjustified.
The recovery of Rs.700/- at the instance of
Mohan has not been believed by the trial court
itself. Therefore, we need not comment about the said
recovery.
The prosecution case is like a jigsaw of puzzle
with many pieces of the jigsaw of missing. Instead of
illuminating the mysteries of this case, the
prosecution evidence leaves the court groping in the
dark. Thus, the prosecution has failed to cover the
long distance between ‘may be true’ and ‘must be
true’. Since the prosecution has failed to prove its
case through cogent and convincing evidence, it
merely leaves a sense of suspicion in the mind of the
20court. But suspicion, no matter how strong, cannot
take the place of proof. Therefore, this court has no
other option, but to give benefit of doubt to both
the appellants.
For the reasons stated above, both the appeals
are hereby allowed; the impugned judgment dated
25.2.2004 is set aside. Both the appellants are
acquitted of the charges framed against them. Since
Sohan @ Sovan is languishing in Jail, he shall be set
at liberty forthwith if not wanted in any other
criminal case. Mohan’s bail bonds stand duly
discharged.
Keeping, however, in view the provisions of
Section 437-A Cr.P.C, the appellants, namely Sohan @
Sovan and Mohan Singh, are directed to forthwith
furnish a personal bond in the sum of Rs. 20,000/-
each and a surety bond each in the like amount,
before the trial court. The bonds so furnished shall
be effective for a period of six months. The bonds
shall contain an undertaking that in the event of
filing of Special Leave Petition against the judgment
or on grant of leave, the appellants, on receipt of
notice thereof, shall appear before the Hon'ble Apex
Court.

(Kanwaljit Singh Ahluwalia) J. (R.S. Chauhan) J

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