Judgment

S. M. FAZAL ALI, J.:- This appeal by Special Leave is directed against the judgment of the Punjab and Haryana High Court in which the conviction of the appellant under Section 397 to 7 years R. I., under Section 394/34 to 2 1/2 years R. I. and under Section 323 to 2 months R. I. has been upheld. The prosecution case is detailed in the judgments of the High Court and that of the trial Court. According to the complainant Bhagwant Singh he was robbed by Satbir and Daya Nand (Daya Nand acquitted accused) of a watch and a cycle. It was also alleged that the complainant was assaulted by fists and kicks by Daya Nand and also at a later stage by the appellant. F.I.R. was lodged on September 23, 1973 giving the details of the properties robbed. The appellant was arrested on 29th September 1973 and identification parade was arranged to be held on the 9th October, 1973 but the parade could not take place because the appellant refused to participate in the same on the ground that he had been shown to the witnesses. The defence of the appellant was that he had been falsely implicated and that he had not committed any offence. The High Court came to a clear finding that as P.W. 3 Bhagwan Singh was the only witness to identify the appellant and as no test identification parade could be held, his identification in Court was of no value and such an identification would not be sufficient to found a conviction of the appellant. The High Court, however, based the conviction of the appellant mainly on the recovery of watch made from the accused on the 29th September, 1973 when he was arrested in the course of ambush and presumption under Section 114 of the Evidence Act. There is the evidence of P.W. 7 Dhanpat and some other police officers to prove the recovery of the watch from the possession of the appellant.

2. We have heard counsel for the parties and we find that there are certain intrinsic circumstances which throw con- siderable doubt on the complicity of the complainant in the crime alleged. To begin with it appears that on the 27th of September, 1973, Daya Nand the accused filed an application before the Magistrate alleging clearly that the police had arrested the appellant Satbir in connection with the F.I.R, lodged by Bhagwant Singh (and) was trying to arrest Daya Nand also in order to implicate him falsely and to get him identified. This statement was made at a time when there was no warrant against Daya Nand and he merely apprehended his arrest. This statement clearly shows that there is a possibility of the appellant having been arrested on the 27th September, 1973 or even before that. If there is any truth in this statement which was made at a time when there was no dispute then the evidence of recovery produced by the prosecution becomes extremely suspicious. Mr. Bhagat appearing for the State very vehemently argued that the application filed by Daya Nand was not admissible and could not be taken into consideration in order to dislodge the prosecution case. It is true that the application does not have much evidentiary value but it is undoubtedly relevant under Section 11 (2) of the Evidence Act or at any rate it could be considered as a part of the statement of Daya Nand, accused under Section 342 of the Criminal Procedure Code and therefore could be considered by the Court for whatever worth it is. We do not mean to suggest for a moment that this application is by itself sufficient to discard the prosecution case. But taking in conjunction with other circumstances referred to hereinafter this document throws considerable amount of doubt on the prosecution case of recovery. It is positive case of the complainant Bhagwant Singh that he was given fist blows by Daya Nand and in his evidence in the Court he adds that both the accused namely the appellant Satbir and Daya Nand had given kicks to him. The Doctor who examined Bhagwant Singh found abrasions and opined that the injuries could be caused by a blunt weapon. The Doctor d