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7. Referring to recovery of part of jewellery items and cash from appellants Shekhar and Sunil @ Pandit it was argued by Mr. Soni that all the recoveries of incriminating articles from the appellants were witnessed by the police officials only and in the absence of any independent witness to such recoveries particularly in case of appellants Shekhar and Sunil @ Pandit, these recoveries could not have been held proved. It was contended that the incriminating items allegedly recovered from respective appellants were packed and sealed in different parcels using the same seal on different dates and as the seal continued to be retained by the Investigating Officer himself althrough, there was every likelihood of the articles of jewelery and cash allegedly recovered at the instance of respective appellants being shown to PW Rohtas before the same were put to identification by him before the Metropolitan Magistrate concerned. It was further argued that neither at the time of registration of the FIR nor thereafter any list of robbed articles was furnished to the police by PW Rohtas and in the circumstances it is not proved that the cash and jewelery items allegedly recovered from the appellants were actually part of the robbed items. Mr. Soni also contended that the claim of the police of solving a blind case of robbery and murder by virtue of apprehension of appellant Sanjay @ Moni in the course of their patrolling falls flat in view of no DD entries being proved on record to establish that the police officials concerned were actually present in the area at the relevant time in connection with their night patrolling duty.

9. Ms. Fizani Hussain, learned Addl. P.P. representing the State canvassed, to sustain the impugned conviction and sentence, on the strength of apprehension of appellant Sanjay @ Moni shortly after the commission of murder and robbery and recovery of jewelery and cash amount forming part of looted property, besides recovery of blood stained T-shirt which he was found wearing and the blood stains on his T-shirt being found matching with blood group of deceased Raju. Ms. Fizani further submitted that the recovery of incriminating articles effected from respective houses of appellants Shekhar and Sunil @ Pandit pursuant to their disclosure, coupled with evidence with respect to their finger prints being found at the scene of crime conclusively establish their complicity in commission of the crimes. She contended that the deficiencies in the evidence pointed out by learned Counsel for the appellants do not materially affect the final outcome of appellants being held guilty of the offences as recorded by the learned trial court. Ms. Fizani Hussain sought to rely upon a Supreme Court decision in Praveen Kumar v. State of Karnataka to supplement her contention that in view of recovery of robbed jewellery and cash from the respective appellants, an inference could be drawn that they must have robbed the same and in the process committed the murder as well.

(ii) recovery of two gold bangles and a sum of Rs. 1507/- from his person being part of robbed property;

(iii) the police being led by appellant Sanjay @ Moni to the house of PW Rohtas where the robbery and murder had been committed;

(iv) blood stains on the T-shirt which appellant Sanjay @ Moni was found wearing at the time of his apprehension by the police and which on Chemical examination were found to match the blood group of the deceased ;

(v) arrest of appellants Shekhar and Sunil @ Pandit on 16th May, 2001 and 24th May, 2001 respectively pursuant to their names being disclosed by appellant Sanjay @ Moni as his accomplices and recovery of part of robbed property from their respective houses at their instance apart from recovery of an iron rod from the house of appellant Shekhar; and

20. Co-appellant Shekhar and Sunil @ Pandit were held guilty and convicted for robbery and murder as also under Section 411 IPC on the basis of two incriminating circumstances, namely, recovery of part of jewelery items and some cash amount at their instance as also in view of their finger prints being found at the scene of crime. Appellant Shekhar was arrested on 16th May, 2001 and he allegedly led to recovery of a pair of ear tops and an iron rod from his house in the presence of SI Vikram Singh, PW-15 and Head Constable Ajay Pal, PW-3 vide Ex. P3/G. Similarly, his co-appellant Sunil @ Pandit on his arrest on 24th May, 2001 got a golden chain and a cash of Rs. 2000/- recovered from his house in the presence of SI Vikram Singh, PW15 vide Ex. P-15/D. The pair of ear tops Ex. P-4/1-2 and the chain Ex. P-14 as well as cash amount of Rs. 2000/- Ex. P-13/1-20 were identified as part of robbed property, by Rohtas PW-2. Interestingly, either at the time of lodging the FIR or at any point of time thereafter, no list of jewelery and cash which had been robbed was ever furnished to the police. Though Inspector S.K. Saxena, PW-16 in the course of his cross examination stated that he was provided a list of such property by Rohtas PW-2 but no such list has been proved on record. It was only in the course of his deposition that Rohtas, PW-2 for the first time furnished details of jewellery items which were robbed from his house. Not only that no list of jewellery items was ever furnished to the police, even the amount of cash, which had been robbed with the jewellery items, was also not mentioned. In a situation where no list of robbed items was made available to the police it is rendered difficult to find that the pair of ear tops and the chain with cash amount of Rs. 2,000/- claimed to have been recovered at the instance of appellants Shekhar and Sunil @ Pandit were actually part of property robbed from the house of Rohtas PW-2. Further, these items according to the witnesses of recovery, were packed and sealed by Inspector S.K. Saxena, PW-16 with his seal. That seal continued to be retained by Inspector S.K. Saxena, PW-16 himself all the time. In such a situation the apprehension expressed by learned Counsel for the appellants that the recovered items could have been shown to Rohtas, PW-2 before the same were put to test identification before the Metropolitan Magistrate concerned cannot be brushed aside as unfounded. Viewed in this context, the identification of the items recovered at the instance of the two appellants, by Rohtas, PW-2 cannot be of much avail.