Abdul Razak @ Razak, Siddique and Ibrahim vs State

N. Dhinakar, J.—R.T. No. 1 of 2000 is by way of reference by the learned Sessions Judge, Nilgiris District at Udagamandalam, u/s 366 Cr.P.C. and Crl.A.No.110 of 2000 is by the appellants/accused.

Appellants 1 to 3, who hereinafter will be referred to as the first accused (A1), second accused (A2) and third accused (A3), for the sake of convenience, were tried before the learned Sessions Judge, Nilgiris District at Udagamandalam, in Sessions Case No. 4 of 1999 for committing the murder of Thangachan, who will be hereinafter referred to as the first deceased (D1), and his wife Mini, who will be hereinafter referred as the second deceased (D2), between 9.00 p.m. and 9.30 p.m. on 26.7.1997.

Charge No. 1 was framed against A1 and A2 u/s 302 for causing the death of Thangachan (D1) by cutting him with an axe. M.O.32. Under charge No.2, A3 was charged u/s 302 IPC r/w 34 IPC on an allegation that he shared the common intention of A1 and A2 in causing the death of D1. The third charge framed u/s 302 IPC was against A2 and A3 for causing the death of Mini (D2). Charge No.4 was framed u/s 302 r/w 34 IPC against A1 for sharing the common intention of A2 and A3 in causing the death of D2. A1 to A3 were also charged u/s 392 r/w 397 IPC under charge No.5. The learned Sessions Judge, on the evidence adduced, both oral and documentary, convicted all the three accused and sentenced them to death under charges Nos. 1 to 4. Under charge No.5, all the three accused were convicted and sentenced to suffer rigorous imprisonment for a period of ten years each. After sentencing the accused to death, the learned Sessions Judge has made a reference to this court u/s 366 Cr.P.C.

Shorn of unnecessary details, facts necessary to dispose of the appeal are as follows:

The deceased, Thangachan and Mini, were residents of Karakolli. P.W.6 and Tindu are the twin daughters of D1 and D2. P.W. 1 is the brother-in-law of D1 in that he has married the sister of Dl. P.W.5 has married P.W.4 who is the elder sister of Dl. A1 to A3 were, during the relevant period, residing at Erumadu village and were coolies by profession. They used to cut timber and sell them to the residents of Erumadu. Two days prior to the date of incident. P.W.3 went to the house of D1 and D1 told him that for repaying bank loan, he has Rs. 15.000/- and informed that he needed some more money. He also informed that he also asked the same from his sister P.W.4 P.W.3 also saw the bag in which the money and jewels were kept. P.W.2 is the neighbour of the deceased and on the date of incident at about 7.30 p.m.. D1 went to his house and told him that some persons from Erumadu wanted to purchase trees from him and asked P.W.2"s opinion as to what he should do. P.W.2 advised him not to sell any tree.

P. W.8 was a resident of Erumadu and was ekeing out his livelihood by running a tea-stall. On the date of incident at about 3.00 p.m. A1 to A3 went to his shop and after taking tea started playing carrom. They were found talking among themselves and during the course of conversation, they were heard saying that they have to go to the house of D1 in connection with the purchase of timber. Thereafter, they left the place. P.W. 9 was a tea-shop owner at Karakolli. According to the prosecution, the accused cut some trees belonging to D1 about 15 days prior to the date of incident and on the date of incident. A1 to A3 went to P. W.9s shop by 6.30 p.m. and took tea. P.W.9 asked the accused for the purpose of their visit and they told him that they are going over to the house of D1 for purchasing timber. The accused thereafter left and went to the petty-shop of P.W. 10 where they purchased beedi and cigarettes and also informed him that they were going to the house of D1 for purchase of timber.

At about 6.30 p.m., P.W.5 was in her house and there was power failure. A1 to A3 went to the house of D1 and were informed by P.W.6 that D1 had gone to a shop and will return. After the return of Dl. the three accused were found talking with him by standing outside the house. Thereafter, they left. P.W.5 and her sister went to bed. On the next day morning. P.W.6 woke up to find the body of her mother (D2) in the kitchen and the body of her father (Dl) in front of the hall. She went and informed P.W.2. P.Ws.2 and 6 also found that the steel bureau was open.

Meanwhile, at about 9.00 p.m. or 9.30 p.m. on the night of 26.7.1997. P.W. 13, a van driver, was proceeding towards Karakolli and was signaled by three persons to stop the vehicle. They requested P.W. 13 to give them lift and it was accepted. A2 was found in possession of a white plastic bag and A3 was having a zip plastic bag. P.W. 13 asked them as to wherefrom they are coming, to which A1 replied that they were woodcutters by profession and further told him that they had cut D1 and D2. They threatened P.W. 13 that since he had seen them, he should not divulge the said fact to anyone.

On coming to know about the occurrence. P.W.7 went and informed the said fact to P.W. 1. P.W. 1 proceeded to the house of the deceased and found both D1 and D2 lying dead with bleeding injuries. He also noticed that bangles and chain worn by D2 were missing and that the jewels normally worn by the daughters of the deceased were also missing from the house. P.W. 1 proceeded straight to Cherambadi Police Station and gave a complaint to P.W.26. The Sub-Inspector of Police, and the same stands marked as Ex.P-1 in the case. On the basis of Ex.P-1, P.W.26 registered a case in Crime No. 102 of 1997 by preparing express reports. Ex.P-38 is a copy of the printed First Information Report.

The Circle Inspector of Police, Cherambadi Circle, P.W.27, on receipt of the report, took up investigation in the case at 10.30 a.m. on 27.7.1997 and reached the scene of occurrence at 11.00 a.m. where he drew rough sketches Exs.P-39 to 41. He held inquest over the dead body of D1 between 2.00 p.m. and 3.30 p.m. in the presence of panchayatdars. Ex.P-42 is the inquest report in respect of Dl, Similarly, he conducted inquest over the dead body of D2 between 3.30 p.m. and 4.30 p.m. in the presence of panchayatdars. Ex.P-43 is the inquest report in respect of D2. He seized M.O.1 a lungi and M.O.2 a shirt of Dl. He also seized a skirt, which was seen tied around the neck of D2 and the said material object is M.O.3, and so also the blood-stained cloths. He also took sample blood which was on the floor and had the scene photographed through a photographer. He sent a requisition to the finger print expert, P.W.23, who on reaching the scene at 7.30 p.m., lifted 5 finger prints from the iron bureau and they were marked as R-l to R-5. P.W.26 also took finger prints of both the deceased and their two children, for the purpose of comparison.

P.W.27 continued his investigation and examined the witnesses. He examined P.Ws.2.3.5 and 6 on the same day. Thereafter, both the dead bodies were sent for post-mortem with a requisition. Ex.P-29.

P.W.22, the Chief Medical Officer of Gudalur Government Hospital, on receipt of Ex.P-29, conducted autopsy on the body of Thangachan (Dl) at 10.30 a.m. on 28.7.1997 and found the following external injuries on it:-

A cut injury on the forehead - 1" X 1/4" skin deep.

A cut injury on the route and side of the nose 1" x 1/4" x 1 1/4". Probe goes straight. Surrounding tissue is fractured.

Two cut injuries with contusion on the left cheek just below the left eye.

Two small cut injuries side by side on the left upper lip - 1/4" x 1/4".

Abrasion with contusion of size 1" x 1/2" on the left side of the forehead.

A cut injury on the left side of the scalp behind the left ear - 1" x 1/2" bone-deep.

A contusion measuring 1" x 1/2" on the upper chest below the right collar bone.

He issued Ex.P-30, the post-mortem certificate, with his opinion that D1 would appear to have died of injuries to the vital organ, viz. brain, due to the injury on the route of the nose.

P.W.22 also conducted autopsy on the body of Mini (D2) at 11.35 a.m. on 28.7.1997 and found the following external injuries on it:-

A rope mark around the neck about the level of the Adam apple. Knot mark not seen. Rope mark circular in nature.

A cut injury on the left side of the frontal region of size 1" x l/4" muscle-deep.

Three small cut injuries of size 1/4" x 1/4" on the forehead side by side.

A cut injury on the cheek just below the left eye horizontal of size 1" x l/4" bone-deep.

Two cut injuries just below the right ear 1/2" x 1/4" skin-deep side by side.

Three cut injuries 1" x IT'', 1" x 1/4", 1/4" x 1/4" skin-deep on the back of the scalp side by side.

He issued Ex.P-31, the post-mortem certificate in respect of D2. with his opinion that D2 would appear to have died of asphyxia due to strangulation.

In the meantime, other witnesses in the case were examined by P.W.27 during his investigation. During the course of the investigation, P.W.27 arrested A3 at 5.00 a.m. on 4.8.1997 in the presence of P.W. 12 and another A3 was questioned and he gave a statement, the admissible portion of which is marked as Ex.P-8 In pursuance of the said statement. A3 handed over Rs.15/-. M.O.20 series, which were seized under a mahazar Ex.P-9 attested by P.W. 12 and another. Thereafter, A3 took the police party to his house from where, he took and produced M.O.12, a blue colour zip bag in which 38 Nos. of currencies of the denomination of Rs. 100/- were found and they were seized under a mahazar Ex.P-10. The said bag also contained receipts for payment of fees to a school by D1 as well as an LLC premium receipt evidencing the payment of premium for one A.P. John. A3 took the police party to a bush from where, he took out and produced MO 21, a knife, and M.O.22. a plastic bag which were also seized under a mahazar Ex.P-11 attested by witnesses. Thereafter, A3 took them to a place behind his house and from there, he took and produced MO 23, a bag in which M.Os.24 and 25, a shirt and dhoti respectively, worn by him at the lime of incident, were found, which were then seized under a mahazar Ex.P-12 attested by P.W. 12. A3 took P.W.27 to a lodge at Kalpetta in Kerala State. The cashier of the lodge, P.W.11 was questioned and a register, MO 7 maintained at the lodge was also seized.

A2 was arrested at about 11.00 a.m. on 17.8.1997 by P.W.27 and in pursuance of the admissible portion of the statement. Ex.P-16, given by him in the presence of P.W. 14, he produced a sum of Rs. 1952. MO.26 series, and MO 27, a watch, worn by him which were seized under a mahazar Ex.P. 17. A2 took the police party to a bus-stand and from a comer. He took out and produced an yellow colour plastic bag. M.O.28, which contained M.O.29, a shirt, and M.O.30, a lungi, which were seized under a mahazar Ex.P. 18. Later, the police party were taken to Pananchira and from near a school, he took and produced a plastic bag which contained a knife. M.O.31, and the same was seized under a mahazar Ex.P-19 attested by P.W. 14.

As the matter stood thus. P.W.24. the Sub-Inspector of Police, Mukkam Police Station, Kerala State, arrested A1 at about 5.30 p.m. on 10.2.1998 since he was moving in a suspicious manner. He registered a case u/s 41(l)(a) Cr.P.C. P.W.24. on taking him to the police station, realised that he is an accused wanted in connection with a crime registered in this case since the photo of A1 was found pasted at the police station. A1 was produced before the learned Magistrate, Thamarachcny and P.W.24 informed the said fact to Cherambadi Police Station. P.W.27, on coming to know about the arrest of Al, proceeded to Mukkam Police Station and there, he was informed that A1 was remanded to judicial custody. He filed a petition before the learned Magistrate, Thamaracherry and took the custody of A1 and thereafter, proceeded to Cherambadi Police Station. On 12.2.1998, he filed a petition. Ex.P-44 before the learned Magistrate, Gudalur and obtained police custody and examined A1 at Erumadu Police Station on 13.2.1998. When questioned, A1 gave a statement and the admissible portion of the same is Ex.P-20 in the case In pursuance of the said statement. A1 took the police party on 14.2.1998 to D1"s house and from there to Pananchirapalli. At Pananchirapalli, from behind a school, he took M.O.32. an axe, which was seized under a mahazar Ex.P- 21 in the presence of P.W. 15 and he attested it. P.W. 15 was asked to come on the next day. On 15.2.1999, A1 took the police party to Mukkam and from the bush near a house, took a plastic bag which contained three gold bangles. MO.5 series, which were seized under a mahazar Ex.P-22. On 16.2.1998, A1 took the police party and pointed out P.W. 16 at Mukkam. P.W. 16 was questioned and he produced M.Os.7 and 8 two gold chain and MO. 11 series, three gold rings, sold by A1 to him. They were seized under a mahazar Ex.P-23. A1 took the police party to P.W. 17, who produced M.O.6 series, three gold bangles, and M.O.1 (1. a gold ring, which were sold by A1. They were seized under a mahazar Ex.P-24 attested by P.W. 15. P.W.27 sent the finger prints of A1 for comparison to P.W.23, who on comparison, found them to tally with R-5. A finger print, lifted from the door of the steel bureau.

After completing the investigation, the final report was tiled by P.W.27 against all the accused on 31.3.1998"

When questioned u/s 313 Cr.P.C. on the incriminating circumstances appearing against them, the accused denied their complicity and pleaded innocence.

Before the trial court, to prove the case that Thangachan (D1) and Mini (D2) were done to death with a view to commit robbery, the prosecution relied upon circumstantial evidence since the occurrence was not witnessed by anyone. It is a settled principle of law that in a case where there is no eye-witnesses to the murder and the case against the accused depends entirely on circumstantial evidence, the standard of proof required to convict the accused on such evidence is that the circumstances relied upon must be fully established and the chain of evidence furnished by these circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. It is also true that in a case of circumstantial evidence, not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. Delhi Development Authority Vs. Pushipendra Kumr Jain, . The said view had been reiterated by the Apex Court in its subsequent decisions.

Keeping the above principles of law in mind. We will now analyse the evidence to find out whether the prosecution succeeded in establishing all the links in the chain of circumstances to prove that the accused committed not only robbery but also, in the course of the same transaction, committed murder of two persons. It is not in dispute that A1 to A3 are woodcutters by profession and they were residents of Erumadu Village. It is also not in dispute that the deceased-persons belonged to Karakolli. P.W.9, a tea-stall owner of Karakolli has in his evidence, deposed that A1 to A3 were employed by D1 for cutting trees 15 days prior to the date of occurrence. This evidence is supported by P.W. 10, who is a petty-shop owner having a shop next to the tea-stall of P.W.9. This evidence as brought out through P.Ws.9 and 10 indicates that the accused knew the topography of the house of the deceased and the affluent circumstances under which D1 was living.

The next circumstance is brought out through the evidence of P.W.2, who has in his evidence, stated that at about 7.30 p.m. on 26.7.1997. D1 went to his house and asked for his advise whether he could sell the trees which were grown in his compound. At that time, he also told P.W.2 that he is expecting three persons for cutting the trees. P.W.2 advised him not to allow these persons to cut the trees. This evidence of P.W.2 shows that the deceased was expecting three persons from Erumadu on the date of incident. This evidence of P.W.2 is corroborated by P.W.6. the daughter of the deceased, who has, in her evidence, stated that at about 6.30 p.m. all the three accused went to the house of the deceased and asked for her father, D1. Since D1 was not in the house, they were informed to wait for his arrival. After the arrival of D1, the three persons talked to him and left. The evidence of P.W.2 that D1 was expecting three persons, which is supported by P.W.6 shows that the accused went to the village of D1 on that day and were seen along with the D1. Their evidence is further supported by P.W.9. a tea-stall owner at Karakolli. and P.W. 10, a petty-shop owner, who was having his shop next to the shop of P.W.9. According to them, at about 5.30 p.m. all the three accused went to P.W.9''s shop and after taking tea. purchased beedis and cigarettes from the shop of P.W. 10, and were discussing among themselves about their visit to D1s house. We have no reason to reject the evidence of either P.W.6 or P.Ws.9 and 10. They had no reason to come out with a false version by stating that the accused had gone to the house of the deceased on the evening of the fateful day.

Later, P.W.6 went to bed. She got up on the next day morning only to find D1 and D2 lying dead with bleeding injuries. The relatives, who gathered, had found that the jewels worn by D2 were missing and also that some of the jewels normally worn by the daughters of the deceased, were also missing from the house. A complaint Ex.P-1 was laid with P.W.26 by P.W. 1 in which he has mentioned that all the jewels kept in the house including the chain. MO.9 worn by D2 were found missing. A crime was registered and the investigation was taken up by P.W.27.

During the course of the investigation. PW.27 arrested A3 on 4.8.1998 at Thalur Checkpost. He was questioned and a statement was recorded from him. Ex.P-8 is the admissible portion of the said statement, which led to the recovery of Rs.15/-. M.O.20 series, under a mahazar Ex.P-9. Thereafter, A3, according to the investigating officer, took him to his house at Pananchira from where, he took and produced M.O.12, a bag. The same was identified by P.W.3 as the bag belonging to Dl. From the bag, he took out and produced M.O.13 series. Rs.3800/- (38 Nos. of currencies of the denomination of Rs.100/-), which were seized along with a receipt for payment of L.I.C. premium for one A.P. John and receipts for payment of fees by D1 to a school, under a mahazar Ex.P-10 attested by P.W.12. The recovery of Rs.3800/- as well as a bag, M.O.12. belonging to Dl, is a clinching circumstance against A3. The accused has no explanation to offer as to how he came into possession of Rs.3800/- and the bag. M.O.12. It cannot be forgotten at this stage that he was a woodcutter by profession and a sum of Rs.3800/- is not a small sum for a person like A3. The non-explanation for the possession of money by A3 is itself an additional link in the chain of circumstances as held by the Supreme Court in the judgment cited supra. A3, after producing M.Os. 12 and 13 series, which were seized under a mahazar Ex.P.-10, took the police party to his house from where he took and produced a plastic bag, M.O.22. which contained a knife M.O.21 with human hair, and the same were also seized under a mahazar Ex.P. 11. The said knife was sent to the court by the investigating officer with a request to forward it for analysis and the court, by forwarding it obtained a report, Ex.P-37,from the serologist to the effect that the knife contained human blood of "A" group talking with the blood group of D2 and that the hair found on the knife is human hair. This is another circumstance against A3 for which he had no explanation to offer. A3 also produced MO.23 a plastic bag from which he took out and produced M.Os.24 and 25, a shirt and a dhoti respectively, worn by him at the time of occurrence. M.Os. 24 and 25 which were seized under a mahazar Ex.P-12, were also sent for analysis and the serologist gave a report, Ex.P.37 to the effect that M.O.25 contained human blood of "A" group tallying with the blood group of D2 and M.O.24 contained human blood. It is for the accused to come out with an explanation as to how his cloths came to be bloodstained especially when circumstance against him is that human blood tallying with the blood group of D2 was present on his cloth, but, he had no explanation to offer. After the arrest of A3, the police officer went to a lodge at Kalpetta. The District Headquarders in Kerala State, from where he seized Ex.P.7. A register, maintained there under a mahazar Ex.P-13 attested by P.W.12 evidencing the stay of two persons. There is no doubt that two persons have stayed in the lodge and A1 has given his name and address, which shows that A1 and A2 were together on 27.7.1997. i.e. after the occurrence. This entry in the register is also a place of evidence since the cashier of the lodge. P.W.11 has in his evidence, stated that three persons came to the lodge and one person left leaving the other two. It is the case of the prosecution that A1 and A2 stayed together and the man, who left, was A3.

A2 was arrested at Kalpetta in Kerala State by P.W.27 at about 7.00 a.m. on 17.8.1997 in the presence of P.W.14. His statement was recorded and the admissible portion is Ex.P. 16 in the case. In pursuance of the said statement. A2, from his pocket, took out and produced a gold chain with a cross. M.O.9. which was normally used to be worn by D2 and the same is also mentioned in Ex.P-1. A2 also produced M.O.26 series Rs.1952/-. They were seized under a mahazar Ex.P-17 attested by P. W. 14. M.O.27, a watch, worn by A2 was also seized. It is, of course, time that the prosecution could not and did not establish that M.O.27 belonged to either of the deceased or belonged to any of the family members of the deceased, but. the fact remains that A2 at the time of his arrest was in possession of M.O.9, a gold chain which belonged to D2 and was also in possession of a substantial sum of Rs.1952/-. A2 had no explanation to offer when questioned u/s 313 Cr.P.C. As we stated earlier, non- explanation on the part of the accused is an additional link in the chain of circumstance against the accused. A2, after the recovery of M.O.9 and M.O.26 series by P.W.22 from him. took the police party to a damaged unused shed from where, he produced M.O.28, a plastic bag which contained his shirt. M.O.29 and his lungi, M.O.30 and the same were seized under a mahazar Ex.P-18. The investigating officer sent both M.Os.29 and 30 for analysis and the serologist by sending a report. Ex.P.37, gave his opinion that M.O.30, the lungi of A2 contained human blood of "B" group tallying with the blood group of D1. This is yet another circumstance against A2 to show that he was present at the time of incident and participated in the crime along with the other accused. A2, after producing M.Os. 29 and 30, took the police party to Pananchira at 5.00 p.m. where from behind a school, he took and produced a plastic bag and from it. M.O.31 a knife, was taken out and the same was handed over to P.W.27 which was then seized under a mahazar Ex.P-19 attested by P. W. 14. When M.O.31 was sent for analysis, it was found to contain human blood.

A1 was arrested by P. W24, the Sub-Inspector of Police. Mukkam Police Station in Kerala State, u/s 41(1)(a) Cr.P.C. on suspicion and he realised after taking A1 to the police station that A1 is wanted in connection with the crime in the present case since the photo of Al was found pasted at the police station. He informed P.W.27, about the arrest of A1 and immediately. P.W.27 reached Thamarachery where he obtained the custody of A2 after filing a petition before the Judicial Magistrate First Class-I, Thamarachery. A1 was then taken to the police station at Cherambadi and was questioned on 13.2.1998 in the presence of the witnesses. A1 came out with a statement and the admissible portion of the same is Ex.P.20 in the case. In pursuance of the said statement, he took the police party to Panachira and from near a school, he took and produced M.O.32 an axe and the same was seized under a mahazar Ex.P-21 attested by P.W. 15. It is to be remembered at this stage that the injuries found on D1 could have been caused with an axe like M.O.32. A perusal of the post-mortem certificate issued in respect of DL Ex.P-30 shows that the injuries on D1 could have been caused with a sharp-edged weapon. The evidence of the post-mortem doctor and the recovery of the axe at the instance of A1 show that D1 was cut to death by the accused. After producing M.O.32. A1 look the police party to Mukkam, Kerala State, on 15.2.1998 and in a house where he was staying as a tenant, he dug out earth and took out and produced a plastic bag. He also produced M.O.5 series three gold bangles, stolen from the house of the deceased and they were seized under a mahazar Ex.P-22 attested by P.W.15. A1 thereafter took the investigating officer to P.W. 16. who on being questioned, produced M.Os.7 and 8, a gold chain each, and M.O.11 series, three gold rings, which according to P.W.16 were sold to him by A1 on the earlier occasion after the incident. They were seized under a mahazar Ex.P-23 attested by P.Ws. 15 and 16. A1 also took the police party to P.W. 17, who produced M.O.6 series ,three gold bangles, and M.O.10, a gold ring, the jewels belonging to the family members of the deceased. They were also seized under a mahazar Ex.P24 attested by P.Ws. 15 and 17.

The recovers of all these gold jewels from A1 and A2 and the recovery of a sum of Rs.3800/- as well as the bag M.O.12 belonging to D1 and A3 clearly indicate that the accused have committed robbery in the house of D1 and D2 on the night of 26.7.1997.

The Supreme Court in State of Maharashtra v. Suresh (2000 SCC (Cri) 263) has held that there are three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by him. The Supreme Court observed that one (sic) (possibility) is that he himself would have concealed it. the second it that he would have seen somebody else concealing it and the third is that he would have been told by another person that it was concealed there But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities, the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else, he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by him and such an interpretation is not inconsistent with the principle embodied u/s 27 of the Evidence Act.

When we apply the above principles as enunciated by the Apex Court, it is for the accused to have explained the concealment of the gold jewellery belonging to the deceased, which were recovered by the investigating officer during the course of the investigation. In the absence of any explanation, it is to be presumed that the accused themselves have concealed it.

Now, we have to decide whether robbery and murder formed part of the same transaction for the accused to be convicted under Sections 302 and 392 r/w 397 IPC. It is no doubt true that the articles, earlier stolen from the house of the deceased, have been recovered, which proves charge No.5 framed against the accused u/s 392 r/w 397 IPC. We therefore, hold them guilty and confirm their conviction.

We have to now decide whether the recovery of the gold jewellery belonging to the deceased-family can be taken for consideration to raise a presumption under Illustration (a) of Section 114 of the Evidence Act that robbery and murder formed part of the same transaction. The Supreme Court held in Gulab Chand v. State of MP. (1995 SCC (CRI) 552). that it is true that simply on the recovery'' of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery and culpability for the offences will depend on the facts and circumstances of the case and the nature of the evidence adduced. The Supreme Court also took the view in Baiju Alias Bharosa v. State of Madhya Pradesh (1978 SCC (CRI) 142), that the recent and unexplained possession of the stolen property by the accused justified the presumption that it was he and no one else who had committed the murder and the robbery. The question whether the presumption should be drawn under Illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and circumstances of each case. The nature of the stolen nature of the evidence about its identification, the manner in which it was dealt with by the accused, the place and circumstances of its recovery, the length of the intervening period, the ability or otherwise of the accused to explain his possession, are factors which have to be taken into consideration in arriving at a decision.

When we apply the above principles to the present case, it is to be noted that the accused had no explanation to offer for the recoveries. The accused did not even come out with an explanation that the articles belonged to them. No plausible explanation for lawful possession of the articles was given by the accused in the case when they were questioned u/s 313 Cr.P.C. When we apply the principles as enunciated by the Supreme Court m State of Maharashtra v. Suresh (2000 SCC (CRI) 263), to the facts of the present case as stated earlier, we cannot but drew an irresistible inference against the accused that the accused committed robbery of the gold jewellery of the deceased-family and kept them concealed, and that robbery and murder formed part of the same transaction. We therefore, confirm their conviction for the offence of murder as charged.

For arriving at this conclusion, we make it clear that we have not relied upon the evidence of P.W.13, a van driver, who has in his evidence, stated that the accused, when questioned, came out with a statement implicating themselves with the crime, on the night of 26.7.1997. when they asked for a lift. It is the admitted case of the prosecution that the witness. P.W. 13 was examined on 5.8.1997. i.e. after 9 days of the incident, by the investigating officer, and the said statement reached the court only on 5.8.1998. i.e. after the final report was filed in the case. There is no explanation from the side of the prosecution as to how this witness was traced for the investigating officer to have had knowledge that the accused had made an extra-judicial confession to the witness, for him to go and record a statement from P.W. 13. The said statement recorded belatedly, also reached court after a year, that too after the filing of the final report. We therefore, reject the evidence of P.W 13.

We also reject the evidence of the finger print expert, P.W.23 for the following reasons; P.W.23 has in his evidence, stated that on reaching the scene-place, he lifted 5 finger prints R1 to R5 from the iron bureau and compared them with the fingerprint of Al, though the police officer has stated that he took the finger print of A1 The same was not marked in the court nor the finger print expert slated that the finger print of A1 taken by the officer was received by him and that he compared it with the finger prints lifted by him from the scene-place. In the absence of above link between the evidence of P.W.27 and that of P.W.23. we do not find it safe to place reliance upon the evidence of the finger print expert.

Now we have to decide the question of sentence since the accused have been sentenced to death by the learned Sessions Judge, The learned Additional Public Prosecutor submits that the sentence must be confirmed while the Senior Counsel appealing for the appellants in Criminal Appeal contends that it is not a rarest of rare cases where the accused have to be punished with the extreme penalty of death.

The Supreme Court in Bachan Singh Vs. State of Punjab, has held that

it is quite clear that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not. these two aspects are so intervened that it is difficult to give a separate treatment to each of them. This is so because "style is the man". In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator, that is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal m two separate water-tight compartments. In a sense, to kill is to be cruel and therefore, all murders are cruel. But, such cruelty may van m its degrees of culpability. And it is only when the culpability assumes the proportion of extreme depravity that special reasons" can legitimately be said to exist There are numerous other circumstances justifying the passing of the lighter sentence as there are countervailing circumstances of aggravation. It cannot be over- emphasized that the scope and concept of mitigating factors m the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood-thirsty. Hanging of murderers have never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, in the instant case, show that in the past. Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion is so grave a matter. It is, therefore, imperative to voice the consent that courts, aided by the broad illustrative guidelines indicated, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad" of legislative policy outlined in Section 354(3), viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception.

The Supreme Court, while dealing with the expression " special reasons", reiterated the same view in Rajendra Prasad v. State of Uttar Pradesh (1980 MLJ (CRI) 143), that

special reasons" necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking that other murders and vet the callous criminal, e.g., a lethal economic offender, may be jeopardizing societal existence by his act of murder. Likewise, a hardened murderer or dacoit or armed robber who kills and relishes killing, raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psychotherapy or curative techniques may deserve the terminal sentence. Society survives by security for ordinary life. If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand death penalty dependent on the totality of circumstances. We must always have the brooding though that there is a divinity in every man and that none is beyond redemption. But, death penalty, still on our Code, is the last step in a narrow category where, within a reasonable spell, the murderer is not likely to be cured and tends to murder others, even within the prison or immediately on release, if left alive - a king cobra which by chronic habit, knows only to sting to death unless defanged if possible. The patience of society must be tempered by the prudence of social security and that is the limited justification for deprivation of fundamental rights by extinguishment of the. whole human being. The extreme penalty can be invoked only extreme situations

In Mukund Alias Kundu Mishra And Another v. State of MP. (1997 SCC (CRI) 799). the Supreme Court observed as follows: "From the judgments of the courts below, we notice that in awarding the death sentence, the trial court and in confirming the same, the High Court were considerably moved by the facts that the victims were helpless and innocent and that the appellants committed the gruesome murders for some gain. While there cannot be any manner of doubt that the murders were ghastly and in committing them Mukund betrayed his trust, we did not think this case to be one of the "latest of rare cases" as exemplified in Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab.

When we apply the principles as enunciated by the Apex Court, it is clear that we cannot in this case, award death sentence to the accused and this case cannot be termed as "rarest of rare cases" for awarding death penalty to the accused.

In fact, it is to be remembered that passing of sentence of death must elicit the greatest concern and solicitude of the Judge because this is one sentence which cannot be recalled.

On the discussion made above, we feel that the sentence of death imposed upon the accused should be converted into one of imprisonment for life and we, accordingly, do so. In the result, the conviction of all the accused is confirmed and the death sentence imposed upon them is modified into one of imprisonment for life. The sentences imposed upon them shall run concurrently. The reference made by the learned Sessions Judge is disposed of on the lines indicated above, the appeal is disposed of with the above modification in sentence.