VIJAY KUMARversusSTATE OF RAJASTHAN

                        [2014] 1 S.C.R. 1078


A                          VIJAY KUMAR
                                  V.
                     STATE OF RAJASTHAN
                (Criminal Appeal No. 441 of 2009)

                        FEBRUARY 18, 2014
B
             [T.S. THAKUR AND C. NAGAPPAN, JJ.]

        PENAL CODE, 1860:

c       ss. 302 rlw 120-B, 460 and 382 - Circumstantial evidence
  - Conviction by courts below - Held: Witness has made
  material improvements while deposing in court and such
  evidence cannot be safe to rely upon -- Evidence adduced
  by prosecution to prove second and third circumstances does
0 not pass the test of credibility and is liable for rejection - The
  recoveries made indicate that the articles recovered were not
  in exclusive possession of the appellants - Further, none of
  the precaution that ought to have been taken to ensure fair
  identification of the articles recovered was ever taken and no
E weight can be attached to the evidence of identification of
  property -- Both the courts below fell in error in coming to the
  conclusion that prosecution has established its case based
  on circumstantial evidence beyond all reasonable doubt --
  Benefit of doubt given to both the appellants -- Conviction and
  sentences imposed on them by courts below are set aside
F and they are acquitted of the charges - Evidence -
   Circumstantial evidence - Identification - Identification of
   articles.

        The appellants-accused A-1 and A-3 were
G prosecuted for committing offences punishable u/ss
  1208, 302, 460 and 382 IPC. Besides, three other accused
  were tried along with them for offence punishable u/s 411
  l.P .C. The prosecution case was that the deceased, a
  midwife, was residing in the Hospital where A-1, a doctor
H                                1078
      VIJAY KUMAR v. STATE OF RAJASTHAN              1079


and his brother-in-law, A-3, were also residing; that the    A
deceased used to give loan on interest on the mortgage
of gold and silver ornaments; that A-1 and A-3 conspired
and murdered the deceased and stolen the ornaments/
articles possessed by her. However, the case was
registered on the written report forwarded by A-1 about      B
the death of the said midwife. During the investigation A-
1 and A-3 were arrested and on their disclosure, certain
ornaments/articles were said to have been recovered. The
other three accused were also arrested. Since nobody
had witnessed the occurrence and the case was based          c
on circumstantial evidence, the trial court mainly relied
on the following circumstances:

    (i) The deceased died of homicidal violence.

    (ii) A-1 had threatened the deceased of possible         D
income-tax raid and seizure of ornaments possessed by
her and persuaded her to shift her residence from village
to hqspital premise with her belongings.

   (iii) Accused no. 5 used to demand the ornaments for      E
wearing from the deceased; and

     (iv) On the information furnished by A-1 and A-3 upon
their arrest, the ornaments pledged by various persons
with the deceased, got recovered from their possession.
                                                             F
     The trial court found all the accused guilty of the
offences charged. A-1 and A-3 were convicted sentenced
to imprisonment for life and to pay a fine of Rs.5000/-
each u/s 302 read with s. 1208 IPC. Both were further
convicted and sentenced to RI for eight years and to pay     G
a fine of Rs.1000/- each for each of the offences u/s 460
IPC and u/s 382 IPC. Accused nos.2, 4 and 5 were
convicted and sentenced to RI for two years and to pay
a fine of Rs.500 each u/s 411 IPC. On appeal, the High
Court acquitted accused nos. 2, 4 and 5 but, maintained
                                                             H
    1080   SUPREME COURT REPORTS               [2014] 1 S.C.R.


A the conviction and the sentences of the appellants.

       Allowing the appeals, the Court

      HELD: 1.1 In a case based on circumstantial
  evidence, the settled law is that the circumstances from
B which the conclusion of guilt is drawn should be fully
  proved and such circumstances must be conclusive in
  nature. Moreover, all the circumstances should be
  complete and there should be no gap left in the chain of
  evidence. Further the proved circumstances must be
C consistent only with the hypothesis of the guilt of the
  accused and totally inconsistent with his innocence.
  [para 6] [1086-A-B]

       1.2 In the instant case, from the medical evidence, it
0 is clear that death of the deceased was homicidal in
  nature and the circumstance (i) stood established. [para
  8] [1087-D]

       1.3 As regards circumstances (ii) and (iii), PW 10, the
  brother-in-law of the deceased, in his examination-in-chief
E stated that the deceased had kept her ornaments in the
  locker of a bank and A-1 told her that the income-tax
  people could raid the bank and seize her ornaments and,
  therefore, she took the ornaments with her. PW 10 has
  further stated that the deceased used to tell him that
F accused no. 5 demanded ornaments from her for
  wearing and would dance after wearing the same. In the
  cross-examination PW 10 has stated that he did not tell
  these facts to the police during investigation. This
  witness has made material improvement while deposing
G in the court and such evidence cannot be safe to rely
  upon. Thus, the evidence adduced by the prosecution to
  prove circumstances (ii) and (iii) does not pass the test
  of credibility and is liable for rejection. [para 1OJ [1087-F-
  H; 1088-C]
H
       VIJAY KUMAR v. STATE OF RAJASTHAN            .   1081


      Khalil Khan vs. State of M.P. (2003) 11 SCC 19 - relied   A
on.

     1.4 As regards the last circumstance pertaining to the
recoveries made pursuant to the disclosure made by the
appellants, the said recoveries have been made from the         8
respective houses of the accused/appellants where their
families were residing. In fact A-3 obtained the key from
his father for opening the lock. In such circumstances, it
cannot be said that the said articles were in the exclusive
possession of the accused/appellants and they came to           C
be recovered only on the information furnished by them.
[para 11-121 [1088-D; 1089-C-D]

     1.5 The identification proceedings of articles was
conducted by PW 83 Tahsildar in Tehsil and he has
claimed to have prepared 72 identification reports. In the D
cross-examination he has admitted that there were
policemen present at the time of identification and he did
not know the articles brought to him were in sealed
packets or in open condition and he did not remember
whether seal used on the packets was official seal since E
12 years have already passed. Further, none of the
precaution that ought to have been taken to ensure fair
identification was ever taken and no weight can be
attached to the evidence of identification of property.
Though the trial court has observed in the judgmenf F
about the lack of proper identification of the articles, it
erroneously proceeded further to accept the same.
Besides, recovery of weapons namely knife and screw-
driver claimed to have been made on the information
given by A-1 is also doubtful. '[para 14] [1091-8-D, E-F]   G

      Wakkar vs. State of U.P. (2011) 3 sec 306 - relied on.

    State of Vindhya Pradesh vs. Sarua Munni Dhimar and
others AIR 1954 V.P. (Vol.41 CN 15) - referred to.
                                                                H
    1082    SUPREME COURT REPORTS               [2014] 1 S.C.R.


A     1.6 Both the courts below fell in error in coming to
  the conclusion that the prosecution has established its
  case based on circumstantial evidence beyond al!
  reasonable doubt. Benefit of doubt will have to be given
  to both the appellants. Therefore, conviction and
B sentences imposed on the appellants by the courts
  below are set aside and they are acquitted of the charges.
  [para 15-16] [1091-G-H; 1092-A-B]

                        Case Law Reference:

c       (2003) 11 sec 19         relied on              para 10
        AIR 1954 V.P. (Vol.41    referred to            para 12
        CN 15)
        (2011) 3 sec 306         relied on              para 14
D
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 441 of 2009.

       From the Judgment and Order dated 02.05.2007 of the
  High Court of Judicature for Rajasthan at Jaipur Bench in D.B.
E criminal Appeal No. 664 of 2001.

                                  WITH

    Criminal Appeal No. 1363 of 2009.

F         Nitin Bhardwaj, Rajiv Kumar Sinha, Mridula Ray Bhardwaj
    for the Appellant.

        Milind Kumar, Ruchi Kohli for the Respondent.

        The Judgment of the Court was delivered by
G
        C. NAGAPPAN, J. 1. These two appeals are preferred
    against the judgment of the High Court of Judicature of
    Rajasthan at Jaipur Bench in DB Criminal Appeal No.664 of
    2001.
H
      VIJAY KUMAR v. STATE OF RAJASTHAN                   1083
               [C. NAGAPPAN, J.]
      2. The appellant Dr. Atma Ram in Criminal Appeal             A
No.1363 of 2009 is the accused No.1 and the appellant Vijay
Kumar in Criminal Appeal No.441 of 2009 is accused No.3 in
the Sessions Case No.28 of 2001 (38/1986) on the file of
Additional Sessions Judge (Fast Track) Jhunjhunu, Rajasthan
and they were tried for the alleged offences under Section 1208,   8
302, 460 and 382 IPC. Three other accused namely A-2
Kailash Chand, A-4 Gyanchand and A-5 Radha Devi were also
tried in the same case for the alleged offence under Section
411 IPC. The Sessions Court found accused Nos. 1 and 3/
appellants guilty of the charges framed and sentenced them         c
each to suffer imprisonment for life and to pay a fine of
Rs.5000/- each in default to undergo rigorous imprisonment for
six months each for the offence under Section 302 read with
 Section 1208 IPC and further sentenced them each to undergo
 rigorous imprisonment for eight years and to pay a fine of        D
 Rs.1000/- each and in default to undergo rigorous
 imprisonment for six months each for the offence under Section
460 IPC and also sentenced them each to undergo rigorous
 imprisonment for eight years and to pay a fine of Rs.1000/-
each and in default to undergo rigorous imprisonment for six
 months each for the offence under Section 382 IPC and             E
 ordered the sentences to run concurrently. The Sessions Court
 also found accused Nos.2, 4 and 5 guilty of the offence under
 Section 411 IPC and sentenced them each to undergo rigorous
 imprisonment for two years and each to pay a fine of Rs.500
 and in default each to undergo rigorous imprisonment for three    F
 months.

     3. Aggrieved by the conviction and sentence accused
Nos.1 to 5 preferred appeal in Criminal Appeal No.664 of 2001
and the High Court by judgment dated 2.5.2007 dismissed the        G
appeal preferred by the accused No.1 Atma Ram and accused
No.3 Vijay Kumar/appellants herein and at the same time
allowed the appeal pertaining to accused No.2 Kailash Chand,
A-4 Gyan Chand and Accused No.5 Radha Devi and acquitted
them of charge under Section 411 IPC. Challenging their            H
    1084     SUPREME COURT REPORTS                 [2014] 1 S.C.R.


A   conviction and sentence ac~used No.1 Atma Ram and accused
    No.3 Vijay Kumar have preferred the present appeals.

        4. Briefly the case of .the prosecution is as follows:

          Accused No.1 Atma Ram was working as a Doctor in the
B   Government Hospital in village Chhapoli and Keshar Bai was
    posted as a mid-wife in the same hospital and a month prior
    to occurrence she started residing in a room on the ground floor
    under the stair-case of the hospital. She used to give loan on
    interest on the mortgage of gold and silver ornaments. PW 17
C   Sweeper Basanti Lal was also residing in a corner room on
    the ground floor of the hospital. A-1 Atma Ram was residing
    on the first floor of the same hospital. Accused No.3 Vijay
    Kumar was his brother-in-law and he was also residing with him.
    On 11.11.1985 PW 17 Basanti Lal noticed Kesar Bai sitting
D   outside in the hospital and also noticed return of Atma Ram to
    Hospital. Dr.Atma Ram forwarded a written report on November
    12, 1985 through Peon Nand Lal to Udaipurbati Police Station
    (Jhunjhunu) informing about the murder of Keshar Bai. In the
    report A-1 Atma Ram stated that in the preceding night around
E   12.30 a.m. he suddenly woke-up hearing voice of sweeper
    Basanti Lal who was asking to open the door of his room which
    was bolted from outside. Atma Ram then got up and proceeded
    towards the room of Basanti Lal !)ut the door of Atma Ram's
    staircase was also bolted from outside, therefore he could not
F   go out and awoke Vijay Kumar, who was residing with him.
    Vijay Kumar then scaled the roof and unbolted the room of
    Basanti Lal. Thereafter all the three went down through the
    staircase and went towards Nohra. They found the room of
    Keshar Bai open. They called Keshar Bai, but she did not
    respond. Therefore they entered inside the room and saw
G   Keshar Bai lying dead in naked condition in a pool of blood.
    Her mouth was tied with saree. On her legs a box was lying
    open. Based on the report a case under Exh.P.13 First
     Information Report came to be registered under Section 302
    and 460 IPC and the investigation commenced. After some
H
       VIJAY KUMAR v. STATE OF RAJASTHAN ·                 1085
                [C. NAGAPPAN, J.]
time the investigation was transferred to CID (CB) Jaipur. PW       A
85 Investigation Officer Shiv Prasad Sharma arrested A-1
Atma Ram on 9.4.1986 and on inquiry A-1 Atma Ram gave
Exh.P105 information leading to recovery of ornaments under
Exh.P8 list. Pursuant to his further information given under Exh.
P106 one knife and screw driver came to be recovered under          B
Exh.P.30. PW 85 Investigation Officer Shiv Prasad Sharma
arrested A-3 Vijay Kuniar on 26.4.1986 and on.inquiry A-3
Vijay Kumar gave Exh.P.111 information leading to recovery
of ornaments/articles under Exh. PS Memo: The Investigation
Officer arrested the other three accused and during                 c
investigation examined the witnesses and recorded statements.
PW 83 Tahsildar Durga Prasad 'Sharma conducted
identification proceedings of the recovered articles and
prepared 72 identification reports.· After completion of the
investigation the charge-sheet came to be filed against the         D
accused persons. During the trial the prosecution examined 86
witnesses and marked the relevant documents in support of its
 case. A-1 Atma Ram examined himself as a defence witness,
besides 4 other witnesses were examined on the side of
defence. The trial Court found accused guilty of the charges and    E
sentenced them as narrated above, on appeal the conviction
and sentences imposed on A-1 Atma Ram and A-3 Vijay
Kumar were confirmed and the other accused were acquitted.
A-1. Atma Ram and A-3 Vijay. Kumar have challenged the same
in these appeals.           ·      ·
                                                                    F
     5. We heard Mrs: Mridul Aggarwal the learned aniicus
curie appearing on behalf of the appellant Atma Ram and Mr.
Bhagwati Prasad the learned senior counsel appearing for the
appellant Vijay Kumar and also learned Additional Advocate
General appearing for the respondent-State. ·      ·                G
    6. The prosecution case is that the appellants A-1 Atma
Ram and A~3 Vijay Kumar conspired and murdered Keshar Bai
and stolen the ornaments/articles possessed by her. Nobody
has witnessed the occurrence and the case rests on
                                                                    H
    1086          SUPREME COURT REPORTS              [2014] 1 S.C.R.


A circumstantial evidence. 1'1 a case based on circuristant:al
  evidence ::-ie settled law is that the circumstances from which
  the cor.clus;on of guilt is drawn should be fully proved and such
  circumstances must be conclusive :n na~ure. Moreover, a:I the
  circumsta~ces should be complete and there should be no gap
B left in the chain of evidence. Further the proved circumstances
  must be consistent only with the hypothesis of the guilt of the
  accused and totally inconsistent with his innocence.

        7. The prosecution in order to prove its case mainly relied
C on the following circumstances:

           i)       Keshar Bai died of homicidal violence.

           Ii)     A-1 Atma Ram, threatened Keshar Bai of possible
                   :ncome-tax raid and seizure of ornaments
0                  possessed by her and persuaded her to shift her
                   residence from viliage to hospital premise with her
                   belongings.

           iii)     Accused Radha used to demand the ornaments for
                    wearing from Keshar Bai.
E
           iv)      On the information furnished by A-1 Atma Ram and
                    A-3 Vijay Kumar, upon their arrest, the ornaments
                    pledged by var;ous persons with Keshar Bai, got
                    recovered from their possession.
F
        8. PW 14 Dr. Dinesh Singh Choudhary conducted post-
    mortem on the body of Keshar Bai and found the fo!lowing ante
    mortem injuries :

           i)       Incised wound 1"x1" x 1.5" towards right of neck
G                   below jaw till trachea

           ii)      Three Incised wounds on Lt Side neck tiil trachea
                    each measuring as 1%" x 'W' x 1", in the middle 1"
                    x W' x 1 of below Yi" x W' x %"
H
       VIJAY KUMAR v. STATE OF RAJASTHAN                    1087
                [C. NAGAPPAN. J.]
       iii)   Incised wound 2" x Y2'' x %" above Rt. Breast          A

       iv)    Incised wound 2" x %" x %" above Lt. Breast

       v)     Three incised wounds below Right Breast %" x %"
              x %" llnd 1" x %" x %" lllrd %" x %" x %"
                                                                     B
       vi)    Incised wound Lt. hand from behind 1" x %" x Y2''.

       vii)   Incised wound Rt. hand from behind 1" x Y2'' x %"

 According to him the cause of death was hemorrhage due to
 cut of neck vessels. Exh. P24 is the post mortem report issued      C
 by him. From_the medical evidence it is clear that death of
 Keshar Bai was homicidal in nature and the first circumstance
 stood established.

      9. Circumstances No.2 and 3 are taken up for discussion        o
 together. PW? Kishore Singh is a resident of village Chhapoli
 and he has testified that Keshar Bai was a nurse in the hospital
 and was residing as a tenant in his house on rent of Rs.10 per
 month for more than a decade and she used to lend loan on
 interest on mortgage of ornaments and she used to keep the          E
 ornaments in a box in the house and a month prior to the
 occurrence she shifted her residence from his house to the
 hospital with all her belongings.

     : .10. PW 10 Jaswant Singh is the brother-in-law.of Keshar
  Bai and in his examination-in-chief he has stated that Keshar      F
  Bai kept her ornaments in the locker of a bank and A-1 Atma
  Ram told her that the income-tax people could raid the bank
  and, seize her ornaments and hence Keshar Bai took the
  ornaments with her. PW fO has further stated that Keshar Bai
  used to tell him that accused Radha demanded ornaments from        G
  her for wearing and would dance after wearing the same. In the
  cross examination PW 10 Jaswant Singh has stated that he
. did not tell in his statement to the police during investigation
  about the threat made by A 1-Atma Ram to Keshar Bai
  regarding the possibility of an income-tax raid and seizure of     H
    1088     SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A ornaments and also the demand of ornaments made by
  accused Radha to Keshar Bai and her wearing the same. This
  Court has to form its opinion about the credibility of the witness
  and record a finding as to whether his deposition inspires
  confidence. This witness PW 10 Jaswant Singh was admittedly
B examined by Investigation Officer during investigation and in that
  statement he has not stated the facts which he now for the first
  time stated before the Trial Court. This raises a serious doubt
  as to the veracity of the said facts [See Khalil Khan vs. State
  of MP. (2003) 11 SCC 19]. In other words this witness has
C made material improvement while deposing in the Court and
  such evidence cannot be safe to rely upon. Thus the evidence
  adduced by the prosecution to prove the circumstances 2 and
  3 does not pass the test of credibility and is liable for rejection.

        11. The remaining last circumstance pertains to the
D recoveries made pursuant to the disclosure made by the
  appellants. The investigation officer PW 85 Shiv Prasad
  Sharma has claimed that he arrested A-1 Atma Ram on
  9.4.1986 and on inquiry he gave Exh. 105 information which
  led to the recovery of ornaments mentioned in Exh.P8 list in the
E presence of witnesses. PW 5 Santbax Singh and PW6
  Madanlal Bhavaria are the witnesses to the said recovery. Both
  of them have testified that accused No.1 Atma Ram took them
  and the police to his house and entered a room in the court-
  yard and opened an almirah and took out a plastic bag and
F handed it over, which contained ornaments of gold and silver
  and the same was recovered by Memo under Exh. P8 list. The
  further testimony of the investigation officer is that he arrested
  A-3 Vijay Kumar on 26.4.1986 and on inquiry he gave Exh.P
  111 information which led to the recovery of ornaments under
G Exh.PS Memo in the presence of witnesses. PW4 Tota Ram
  is the witness for the said recovery and according to him A-3
  Vijay Kumar took him and the police to his house and produced
  silver and gold articles and they were recovered under Exh.P5
  Memo, which he attested. The relevant portion of Exh.P5 Memo
H reads as follows:
      VIJAY KUMAR v. STATE OF RAJASTHAN                     1089
               [C. NAGAPPAN, J.]
    "Accused Vijay asked for key of lock of Baithak (room)           A
    from father through his brother's wife of Kailash, and
    opened lock and then entered towards right side of
    Baithak. Where in a Almirah a box (old) was found and
    opened it, and found a cloth bag (Potali) which was tied
    up. Accused told that the potali contains ornaments. When        B
    potali was opened found the following ornaments of gold
    and silver and a wrist watch .... "

      12. Both the above said recoveries have been made from
the respective houses of the accused/appellants where their          C
families were residing. In fact A-3 Vijay Kumar obtained the key
from his father for opening the lock. In such circumstances it
cannot be said that the said articles were in the exclusive
possession of the accused/appellants and they came to be
recovered only on the information furnished by them. The
le.arned senior counsel and the amicus curie appearing for the       D
appellants strenuously contended that there was no fair
identification proceedings of property conducted by Tahsildar
and firstly it was conducted belatedly and secondly the
witnesses were already shown the articles and thirdly there is
no proof that those articles were kept with deceased Keshar          E
Bai and the recovery and identification are unreliable shaky and
fake. In this regard reliance was placed on the following decision
in State of Vindhya Pradesh vs. Sarua Munni Dhimar and
others [AIR 1954 V.P. (Vol.41 CN 15)]. The relevant portion
reads thus :                                                         F

     "Further as has been observed in connection with
     identification of accused persons no presumption attaches
     to identification proceedings of property. It is for the
     prosecution to establish affirmatively that every necessary     G
     precaution was taken to ensure fair identification. The most
     essential requirement is that the witnesses should not have
     had an opportunity of seeing the property after its recovery
     and before its identification before the Magistrate. For that
     purpose it is necessary to seal the property as soon as it
                                                                     H
    1090      SUPREME COURT REPORTS                     [2014] 1 S.C.R.


A        is recovered and to keep it in a sealed condition till it is
         produced before the Magistrate. The police officers who
         take the sealed bundles to the thana after recovery and
         who take it to the Magistrate for identification proceedings
         should be examined to prove that the sealed bundles were
B        not tampered with in any way. The sealed bundles should
         be opened in the presence of the Magistrate conducting
         the identification proceedings and he should depose about
         it. The property to be mixed with the property to be
         identified should also be sealed some days before
c        witnesses are called and the bundle containing it should
         also be opened in the presence of the Magistrate who
         should testify about it in court. Further as has been
         observed in the case of identification proceedings of
         persons the result of identification as well as the fact
         whether the property mixed was similar to the property
D
         identified should be entered in the memorandum by the
         Magistrate in his own hand."

         13. In the present case about 131 articles of gold and silver
    were recovered. About 60 witnesses have testified the pledging
E   of their articles with Keshar Bai. The ornaments like 'Gorla',
    'Chain of gold', 'madalia" 'ring', 'Bitti', 'Karia', 'Pahunchi', 'hasli'
    etc. are of same kind lookwise having no special marks on
    them. Learned senior counsel appearing for A-3 Vijay Kumar
    brought to our notice that one Pahunchi as per Exh.PS recovery
F   Memo, which contained 59 Mania (Moti) was recovered along
    with 6 sitver ornaments mentioned therein, whereas in Exh.P.68
    a copy of Malkhana register the six silver articles afone are
    found mentioned and there is no mention of the gold ornament
    'pahunchi' as having kept safely in the Malkhana and it is not
G   known as to where it was kept and produced. On a perusal of
    the said documents, this contention cannot be easily brushed
    aside. It is the further submission of the learned senior counsel
    that as per the prosecution case PW 28 Smt. Raj Kanwar has
     pledged above said 'pahunchi' with Keshar Bai and she has
H   stated in her testimony that her 'pahunchi' was of 40 Mania
        ') VIJAY KUMAR      v.
                          STAlt' OF RAJASTHAN-::             1091
                    [C. NAGAPPAN, J.]
(Moti):lf it is so the recovered 'pahunchi' is not that of PW 28      A
Smt. Raj Kanwar. It is. doubtful ·as to whether this recovery
claimed by the prosecution is established.
   ·~   ~)        ...            .   ~--·.   """.~   ~

    · 14'. ltis also the 6onterition of the learned senior counsel·
                        1


that four'witnesses examined claimed one ornament as theirs.
                                                                      8
The identification proceedings of articles was conducted by PW
83 Tahsildar Durga Prasad Sharma in Tehsil and he has·
claimed to have prepared 72 identification reports. In the cross-
examination he has admitted that there were policemen present
at the time of identification and he did not know the articles
brought to him were in sealed packets or in open condition and
                                                                      c
he did not remember whether seal used on the packets was
official seal since 12 years have already passed. Even he did
not know as to who has arranged for articles having similarity
to the seized articles for the purpose of identification and
identification proceedings were completed in a single day. The        D
Tahsildar even after looking at the Memo was unable to say how
many articles of each kind were mixed up with articles to be
identified and whether similar articles were new or old, used
or unused etc. None of the precaution that ought to have been
taken to ensure fair identification was ever taken and no weight      E
can be attached to the evidence of identification of property.
Though the trial court has observed iri the judgment about the
lack of proper identification of the articles, it erroneously
proceeded further to accept the same. Recovery of weapons
namely knife and screw-driver claimed to have been made on            F
the information given by A-1 Atma Ram is also doubtful. Even
assuming to be true that recovery of certain incriminating articles
were made at the instance of the accused under Section 27 of
the Evidence Act, that by itself cannot form the basis of
conviction [See Wakkar vs. State of UP. (2011) 3 SCC 306].            G

     15. In this background we are of the considered opinion
that both the Courts below fell in error in coming to the
conclusion that the prosecution has established its case based

                                                                      H
    1092    SUPREME COURT REPORTS              [2014] 1 S.C.R.


A on circumstantial evidence beyond all reasonable doubt.
  Benefit of doubt will have to be given to both the appellants.

         16. In the result both the appeals are allowed and the
    conviction and sentence imposed on the appellants by the
    courts below are set aside and they are acquitted of the
8
    charges. They are directed to be released from the custody
    forthwith unless required otherwise.

    R.P.                                      Appeals allowed.