George and Another vs State

Manoharan, J.—Appellants are accused in Sessions Case No. 10 of 1992 of the Court of Session, Thrissur''. They were charged under Sections 364, 394 and 302 read with Section 34 I.P.C. Learned Sessions Judge found them guilty of the offences punishable under Sections 364, 394 and 302 read with Section 34 I.P.C. convicted them and sentenced each to death subject to confirmation by the High Court. In view of the said sentence, no separate sentence was awarded for the other offences. The prosecution case can be summarised as follows :

Accused are friends and associates. On 4-10-1990 at about 1.00 p.m. accused persons went to the telephone booth of PW-39 Vijayan near Sakthan Thampuran bus stand, Thrissur and made a call to Civia Hotel at Amballur, The phone was attended by PW-7 Proprietor of the hotel, The call was to Baby (deceased), brother of PW-1, who was the driver of M.O. 10 tourist taxi No. KEH 9111. The car used to be parked in front of the said hotel. Baby attended the telephone and left driving the said car. The car belonged to PW-1, brother of Baby. He was last seen by PW-7.

At about 7 a.m. on 8-10-1990 PW-2 saw the dead-body of Baby in Karumall river near Mupliyam bridge. He informed PW-3 who in turn conveyed the same to PW-1. PW-1 proceeded to Karumali river, identified the dead-body; he noticed several incised injuries on the dead-body. Then he went to the police station and tendered Ext. P1 F.I. statement before PW-55, Sub Inspector of Police. He registered Ext. P1(a) F.I.R under Sections 302 and 392 I.P.C. PW-56, Circle Inspector of Police took over the investigation. He proceeded to the scene and held Ext. P9 inquest. Under the inquest he seized M.O. 1 shirt, M.O. 2 rope seen twined on the deadbody and M.O. 3 jetty. The deadbody had no dhothi. He also seized M.O. 20 series currency notes from the pocket of M.O. 1 shirt. M.O. 4 wedding ring and M.O. 8(b) wrist watch worn by Baby were found missing.

After the inquest, the deadbody was sent for postmortem. PW-27 conducted autopsy on the deadbody of Baby and issued Ext. P25 postmortem certificate.

According to the prosecution, on getting the telephone call Baby went to Thrissur in the car from where both the accused got into the car and wanted Baby to take them to Nilambur. First accused was residing with PW-53, Sheeba, daughter of his brother at Mombad in Nilambur. On the way they stopped at the shop of PW-9 a watch repairer and the watch of the first accused was got repaired. After closing the shop, PW-9 also got into the car. PW-9 was residing at Chalippadam. When they reached Challppadam, PW-9 was dropped there. Then they proceeded to'' the house of PW-53. On reaching Beevirgal Jetty accused left for PW-53''s house on the other side of the river. Baby waited for them with the car at the jetty. Accused crossed the ferry in the canoe of PW-11, PW11 was asked to wait till they came back and at about 10-30 p.m. they returned. The allegation is M.O. 9 knife with M.O. 9 (a) sheath was taken by the first accused from the house of PW-53 which he handed over to the second accused. From there, they reached a place called Palappilly near Chimmini Dam in M.O. 10 car driven by Baby. On reaching there, second accused inflicted several stab injuries on Baby and caused his death. M.O. 8(b) watch was taken by the first accused and M.O. 4 wedding ring was taken by the second accused from the deadbody. Thereafter they dumped the deadbody in the dickey of the car. Then they proceeded to Mupliyam bridge from where they threw the deadbody into the river after tying it with M.O. 2 rope. On the way to Mupliyam bridge the second accused threw away M.O. 9 knife with M.O. 9(a) sheath at Maravanchery. M.O. 5 dhothi of the deceasd which happened to be in the oar too was thrown at Uzhinjarpadam by the second accused.

On the next day, that is on 5-10-1990 at about 6.00 a.m. they reached the house of PW - 36, Sulaiman, a car broker at Kollengode, Palakkad more than 100 kms. away with M.O. 10 car driven by the accused. First accused told PW - 36 that they wanted to sell the car and solicited his service for effecting the sale. Since the brake of the car was faulty, as suggested by PW - 36, the car was taken to the workshop of PW -34 by the accused persons and the brake was got rectified. The car was washed by PW - 37, Murukan. After that the accused persons came back to the house of PW - 36 from where all of them went to the house of PW - 35. Sasldharan Nair, who wanted to buy the car. PW - 35 and the first accused negotiated for the sale and ultimately PW - 35 agreed to purchase the car for Rs. 1,20,000/- An advance of Rs. 40.000/-was agreed to be paid and an agreement was executed between the is accused and PW-35 attested by the second accused and PW-36, Ext. P37 is the carbon copy of the agreement signed by FW-35 and 1st accused, and attested by second accused and PW-36. PW-35 wanted the car to be checked. Therefore, they took the car to the workshop of PW-38, Hamza at Kalmandapam, Palakkad. On approving the condition of [the car by PW-38, accused 1 and 2 along with PW-36 went to take photo copy of the original registration certificate, Ext P6 is the photo copy. Thereafter, they returned to the workshop and original of Ext. P37 was handed over to the 1st accused and copy of Ext. P37 was given to PW-35. PW-35 then gave Rs. 40,000/- to the 1st accused. The key of M.O. 10 car was also handed over to PW-35. Then PW-36 called PW-5, another car broker and an acquaintance over phone and told him, Car No. KEH 9111 was sold to PW-35 through the first accused and asked him whether there was any problem as regards the same. PW-5 told him that there is no problem as regards the car and that the same used to be plied at Amballur.

After completing the transaction, first accused went to the house of PW-53 from where he proceeded to the house of of PW-54, the husband of PW-53''s mother''s sister. He wanted PW-54 to accompany him on the next day to purchase rubber trees for slaughter tapping But on the next day when PW-54 came to the house of PW-53, the first accused was not there. On the way he saw the second accused. They together went to Nilambur bazaar where they met the first accused. All of them went to a hotel and had a tea. The allegation is that the first accused gave Rs. 3,000/- to the second accused and asked him to meet him at 7.00 p.m. on the same day. Second accused left the place, PW-54 and the first accused went in search of rubber trees for slaughter tapping but it turned futile. On the 7th, first accused along with PW-50, a relative of PW-53 left the house of PW 53 saying that they were going to Mysore. The first wife and children of PW-50 were residing in Coorg. On 10-10-1990 first accused went to the house of PW-51. He was there till 12-10-90. Thereafter, he was missing.

In the meantime second accused left his house at Mppllyam on 4-10-1990 and returned on 6-10-1990. He sent PW-49, his brother-in-law to fetch his wife and children to Thrikkur. PW-18, wife of second accused and children met him at Thrlkkur they brought dress Tot him. On that day second accused repaid a debt of Rs. 2,000/- that he owed PW-19, his father - in - law and also paid Rs. 1,000/- to his wife. During the night he went to his house at Mupllyam and told his parents that he was going to Bangalore. He reterned to Thrikkur, on 7-10-1990 he left Thrikkur.

During the investigation, it was revealed that M.O. 10 car was at Vedavannoor at Palakkad. PW 56-Circle Inspector of police went to Vadavannoor and seized M.O. 10 car from PW-35 under Ext. P-40 attested by PW 41; that was on 9-10-1990. He Intimated the Forensic Science Laboratory to examine the car and to see whether there was any trace of blood. During this period he was hunting for the accused persons. He went to the house of the accused persons; but they were not found. On 22-10-1990 at about 3.00 p.m. he saw the accused persons in the bus stand at Nilambur in front of Kavitha Hotel, and arrested them. First accused was carrying M.O. 12 suit case. He (PW-56) seized the same under Ext. P44 mahazar to which PW-44 is an attestor. M.Os. 13 to 15 17 series and 21 to 26 found in the suit case were seized by PW-56. He also serized M.O. 8(b) Citizen watch kept in M. O. 25 rexin bag found in M.O. 12. M.O. 27 series Rs. 30,459/ - found in M.O. 12 were also seized along with Ext. P41 driving licence of Baby. Ext. P7 diary belonging to Baby, Ext. P4 receipt for payment of insurance and Ext. P5 pass-book of Baby also Were found in M.O. 12. He seized M. O. 30 series Rs. 183/- from the pocket of the second accused for which he prepared Ext. P45 mahazar to which also PW - 44 an attestor. He questioned the accused persons

At the instance of the first accused M.Os. 18 and 19 his shirt and pants respectively were recovered by PW - 56 under Ext. P49 from the house of Pw - 53: PW -47 is the attestor to the same. Ext. P50 mahazar concerning the place where the first accused burned the Registration Certificate and the original of Ext. P37 was prepared by PW-56 at the instance of the first accused. He also prepared Ext. P21 mahazar at the instance of the first accused as to the place from where the deadbody was thrown into the river. At the instance of the second accused M.O. 4 wedding ring of Baby was recovered under Ext. P15(a) M.O. 5 dhothi was recovered under Ext. P19, M. Os. 9 and 9(a) knife and sheath respectively were recovered by PW - 56 under Ext. P48, and M. Os, 32 and 33 kally mundu and shirt respectively of the second accused were recovered under Ext. P16. PW - 56 questioned the witnesses and completed the investigation. PW-57 laid the charge before court.

On the side of the prosecution PWs. 1 to 57 were examined, Exts. P1 to P61-(a) were marked and M. Os 1 to 35 were identified. On the side of the defence Ext. D1 to D20(a) were marked. On closing the prosecution evidence when the accused persons were questioned u/s 313 Cr. P.C. they denied the incriminating circumstances against them. They maintained that they are innocent.

The evidence of PW-27 who conducted the autopsy and Ext. P25 postmortam certificate issued by him would show that the dead body had sustained 22 incisod injuries. According to him the said injuries could be caused with a weapon like M.O. 9. He deposed, injuries 5,6,8,10,11,15,17,19,21 and 22 are sufficient in the ordinary course of nature to cause death. The evidence of PW-27 along with Ext. P25, particularly the nature and seat of the injuries would show that the death was homicide

The next question for consideration is as to the identity of the deadbody. According to the prosecution the occurrence was at bout 3 o''clock in the night of 4-10-1990. The deadbody was found by. PW-2 in the Karumali river at Mupliyam at 7.00 a.m. on 8-10-1990, the same was floating in the river. Inquest and the evidence of PW-27 would show that the deadbody was decomposed. It was urged on behalf of the accused there is no acceptable evidence to show that the deadbody was that of Baby, brother of PW-1. In a case u/s 302I.P.C. the identification of corpus delicti is of paramount importance, where the prosecution case is the deadbody is that deceased in the case. PW-1, brother of deceased PW-42, widow and PWs. 2, 3 and 4, neighbors said that the deadbody found in the Karumali river at Mupliyam was that of Baby. PW-4 is a Panchayat Member and an attestor to Ext. P9 inquest, he too identified the deadbody. The deadbody was wearing M.O. 1 shirt which was identified as that of Baby by PWs. 1 and 42. It was contended by the Learned Counsel for the accused that, the Identification is faulty since whereas PW-1 said, when Baby left, he had clean shave Ext. P25 postmortem certificate states that the deadbody had beard having a length of O. 4 cms. It was also pointed out that, Est. P9 inquest though mentions that the length of the deadbody was 167 cms. Ext. P25 postmortem certificate mentions it as 153 cms. Since Ext. P25 and Ext. P9 relates to the same deadbody it is clear one of the measurements is wrong. Therefore that cannot be relied on to argue that the Identification of the deadbody by the relatives and neighbors is faulty. As regards beard, with due regard to the negligible length that can only be the defect in observation by PW-1 when Baby left on 4-10-1990.

PW-27, the doctor who conducted the autopsy deposed, though the body was decomposed, it cannot be said that body could not be identified. Among the witnesses who identified the deadbody, the evidence of PWs. 1 and 42, elder brother and widow respectively of Baby is of particular importance. This is so in view of the evidende of PW - 27 to the effect that the condition of the deadbody was such that the same could be identified. It is necessary in this context to refer to the decision in Vemireddy Satyanarayan Reddy and Others Vs. The State of Hyderabad, . In that case, the deadbody was putrified, both palms were cut, the left hand was severed completely; there'' was only the left eye in a rotten condition; right eye and right ear were missing. The doctor testified that the face of the corpse could not be identified as the scalp was eaten away by mud. With respect to the identification of the said deadbody, the Supreme Court said:

Two factors are, however, overlooked in this argument. Though the body was in an advanced state of decomposition and many parts of the limbs were missing and even the flesh in the face was gone, it would not have been difficult for close associates of Venkatakrishna Shastry to say that ft was his corpse, from the general features, form, outline, contour build of the body, and the appearance of such of the limbs as were available to see.

With due regard to the fact that the immediate relatives like PW 1 and PW - 42 as well as the'' neighbours could identify the deadbody, there can be no doubt particularly in the context of the evidence of PW - 27 that the deadbody found in the Karumali river was that of Baby.

Now the next question for consideration is whether the accused persons are responsible for the death of Baby. There being no direct evidence as to the occurrence, prosecution relies on circumstantial evidence to bring home the guilt of the accused, The circumstances relied on are: (1) At about 1.00 p.m. on 4-10-1990, Baby left driving K.E.H. 9111 (M.O. 10)(2) His deadbody was seen floating in the Karumali river at 7.00 a.m. on 8-50-1990 (3) Wedding ring (M.O. 4) and M. O. 8 (b) wrist watch worn by Baby were found missing from the deadbody (4) In the evening of 4-10-1990 accused persons reached the watch repairer''s shop (PW-9) at Puthanathani in M. O. 10 car driven by Baby, (5) At about 10 p.m. on 4-10-1990 accused persons came to Beevingal Ferry in M.O. 10 car driven by Baby, (6) on 5-10-1990 at about 6.00 a.m. accused persons came to the house of PW-36 at Kollengode in M. O 10 car driven by the first accused. Then Baby was not seen in the car, (7) The car was sold to PW-35 as per Ext P37 agreement, (8) Accused persons made themselves scarce till 22-10-1990 on which date they were arrested by PW 56 at about 3.00 P.m. from a bus stand at Nilambur and (9) At the instance of the accused persons material objects were recovered.

As regards the conditions to be established when a case rests on circumstantial evidence, the Supreme Court in Padala Veera Reddy v. State of A P. (1991 SCC (Crl.) 407) has laid down the principles. When a case rests on circumstantial evidence, the circumstances must be cogently and firmly established unerringly pointing towards the guilt of the accused, the circumstances cumulatively should form a complete chain so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non-else, circumstantial evidence must be incapable of any hypothesis other than the guilt of the accused, and the said circumstance should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The evidence as regards the circumstance has to be appreciated with due regard to the said principles laid down by the Supreme Court. PW-7 the proprietor of Civia Hotel at Amballur saw Baby leave Amballur with M. O 10 cat at about 1-00 p.m. on 4-10-1990 in response to a telephone call. His dead body was found floating in the Karumali river at Mupliyam by PWs. 1 to 3 in the early morning of 8-10-1990. The car was not seen anywhere near Amballur. It is clear from the evidence of PWs. 1 to 3 that the whereabouts of Baby who left Amballur at 1.00 p.m. on 4-10-1990 driving M O. 10 car was not known till the early morning of 8-10-1990 when PW-2 and thereafter PWs. 1 and 3 saw the deadbody of Baby floating in the Karumala river at Mupliyam. PW1 said he was enquiring for his brother in the meanwhile. As noticed the prosecution case is that it was the accused persons who telephoned to Civia Hotel and hired M.O. 10 and that it was they who murdered Baby and threw his deadbody into the river with the common intention of committing theft of M O. 10 car and also the valuables worn by Baby.

PW-9, watch repairer at Puthanathani has deposed that the first accused along with another person came to his shop and got a watch repaired. He did not identify the second accused. He was declared hostile and cross-examined by the Public Prosecutor. In his cross-examination he admitted to his having stated before the police, the other person with the first accused was the second accused. He said that after closing the shop he also travelled in the car along with the first accused and the other person. His evidence is to the effect that he and the other person sat in the back sett and the first accused and the driver occupied the front seat. His evidence would show that he travelled so for more than an hour. In spite of that he said he could not identify whether the other person was second accused or not. It was then that his case diary statement Ext. P21 was brought to his notice, he admitted the same. It was contended by the Learned Counsel for the accused that inasmuch as he has given inconsistent versions as to the identity of the second accused, it will be unsafe to make reliance on the evidence of PW-9. So far as the identity Of the second accused is concerned a reading of Ms evidence would show that there is a method in his turning hostile, Anyhow, in view of the inconsistencies his evidence so far as the identification of second accused is concerned is infirm.

PW-10 is a resident near Beevingal Ferry. He deposed that he had prior acquaintance with the first accused and that while he was returning after film show at about 10.00 p.m., he saw a car KEH 9111 parked near the river and when he asked the person in the car, he told him that two persons who came in the car have gone to the other side of the river. His evidence is to the effect that the house of PW-53 is situated on the other side of the river. His evidence is to the effect that the house of PW-53 is situated oh the other side of the Beevingal Jetty. This witness was declared hostile and was cross-examined as he did not identify the accusec persons, but his evidence is of importance in as much as he said that M.O. 10 car was seen parked at the Beevingal Jetty. Simply because a witness is declared hostil that does not mean that his whole evidence is banished; the court is free to rely on such portion of the evidence of hostile witness also which inspires confidence to be acted upon.

PW-11 is the ferry man. He too knew the first accused. He said that at about 9 P.M. on 4-10-1990 first accused along with another person came to Beevingal Perry and wanted them to be taken to the other side of the river. Accordingly he took them to the other side of the river and that they returned by 10.10.30 PM and both of them boarded the car and left. Though he stated the other person in the car was the second accused, the halting and hesitant manner in which he identified the second accused would caution the court from acting on the said part of his evidence without corroboration. Relying on the decision in Varkey Joseph Vs. State of Kerala, rep. By the Circle Inspector of Police, it was contended since leading questions were put to PWs. 9 and 10 the trial is vitiated. There is no pattern of putting leading questions to all material witnesses. Of course, answers elecited by putting leading questions have to be eschewed from consideration. On 4-10-1990 accused came to Beevingal Ferry was elecited from PW-9 by a leading question, that answer has to be eschewed when the evidence of the said witness is considered. So far as PW-10 is concerned when he was asked by a leading question, that was objected and objection was sustained. In the circumstance, we are unable to agree with the Learned Counsel that trial is vitiated. The evidence of PWs. 10 and 11 would clearly show that the first accused along with the driver and another reached Beevingal Ferry at about 9 PM on 4-10-1990 and left that place by about 10-10-30 P.M. Then the evidence is to the effect that the first accused along with second accused reached the house of PW-36 at 6 AM on 5-10-1990. The car was then driven by the first accused. The driver of the car then was missing.

In this connection, it has to be mentioned, though the wedding photo of the deceased and the photo of the deadbody were marked in the case, the same were not shown to PWs. 9, 10 or 11 and was asked whether the same was the photograph of the driver. According to the prosecution, after the accused left Beevingal Ferry with the deceased, he was not seen alive thereafter. Thus a valuable piece of evidence to the effect that Baby was last seen in the company of the accused was not secured. But; that need not affect the prosecution case if the other circumstances can bring home the guilt of the accused.

As noticed, according to the prosecution, from Beevingal Ferry accused persons along with Baby reached palappilly near Chimmini Dam at about 3.00 a.m. on 5-10-1990 and that on reaching there the second accused inflicted stab injuries on Baby with M. 0.9 knife. Of course, for this also there is no direct evidence. PW-36 said that there was no house near the scene of occurrence, only few vehicles plied through that road, that too sparingly to Chimmini Dam. According to PW-56, Ext. P20 concerning the scene was prepared at the instance of the first accused. Ext. P20 would show that there are plantations and forest adjacent to the scene of occurrence; and bushes near the road was seen stamped. The features revealed from Ext. P20 is of importance in the context of the case of prosecution that Baby was done away with at that scene. PW-56 also would state that M.Os. 7, 8 and 8(a) were recovered from the scene. PW-42, widow of the deceased indentified M.O. 7 slippers as those belonged to Baby. M.O. 8 and M. 0.8(a) are parts of, the chain of M.O. 8 (b) wrist watch found in M.O. 12 suit case which was seized from the accused by PW-56 at the time of his arrest on 22-10-1990. PW-42 identified M.O. 8, M.O. 8(a) and M.O. 8(b) as those worn by Baby.

As noticed, according to the prosecution, it was the first accused who pointed out the scene of occurrence. It was contended by the Learned Counsel for the appellants that since there is no discovery of any fact within the meaning of Section 27 of the Evidence Act, that part of the confession of the first accused is inadmissible. It was contended by the Additional Director General of Prosecution that at any rate, the conduct of the accused in that regard is admissible u/s 8 of the Evidence Act. Reliance was made on the decision in Himachal Pradesh Administration Vs. Om Prakash, and also decision in Hamza v. State of Kerala (1978 KLT 963). Since pursuant to Ext. P20(a) statement by'' the first accused, no fact was discovered within the meaning of Section 27 of the Evidence Act, the confession is not admissible in Evidence. Independently of the said confession, the testimony of PW-56 as to the nature of the scene of occurrence and the material objects seized from there are admissible in evidence which in the context of the evidence of PW-42, in our view, would unambiguously show that deceased Baby was at that scene, for not only the features at the scene would reveal that there was struggle there, the slippers of the deceased and the broken pieces of the chain of his watch were seized from there. The features obtained at the scene would also indicate that there was struggle at that scene. This is a circumstance which has to be ''reckoned in seeing as to the acceptability of the case of the prosecution.

According to the prosecution, after causing the death of Baby, accused persons loaded the deadbody into the dickey of the car and reached Mupliyam where they were residing and threw the deadbody in the Karumali River. As noticed, the deadbody was found floating in the Karumal Rivet on 8-10-1990. From Palappilly the car was driven by the first accused and on the way from Palappilly to Mupliyam according to the prosecution the second accused threw away M.O. 5 dhothi of the deceased at Uzhinjarpadam and M.0.9 and M.O. 9(a) at Maravancherry. We will deal with the acceptability of the evidence regarding the recoveries later.

The further case of the prosecution is, after throwing the deadbody of Baby in Karumali River, accused persons reached the house of PW-36 a car broker at Kollengode at 6.00 a.m. on 5-10-1990. PW-36 deposed that at about 6.00 a.m. on 5-10-1990 accused persons came to his house at Kollengode in a diesel Ambassador car KEH 9111. He said, it was the first accused who drove the car to his house. He (1st accused) wanted his service to sell the car. First accused told him that the brake of the car is defective, then he went to the workshop of FW - 34 and got the brake mended. PW - 36 said that he took the accused persons along with the car to PW - 35 and after negotiations PW - 35 agreed to purchase the car for Rs. 1,20,000/- Rs. 40,000/- was agreed to be paid as advance. Thereupon agreement was written and was executed. He has deposed in support of the prosecution case as to execution of the agreement, Ext. P37. He said, in Ext. P37 the 1st accused and PW -35 signed, and himself and second accused also signed. The body of Ext. P37 is written with carbon and the executants and attestors signed the same. PW35 deposes, the original of Exts. P37 was handed over to the first accused They went to the workshop of PW-38 a mechanic where he checked the car and approved that the car has no defect. According to PW-36, then he and the accused persons went for taking the photocopy of the registration certificate of the car PW 36 telephoned another car broker (PW-5) whom he knew at Puthukkad and asked his view as to the sale of M.O. 10 car. He said, PW-5 told him that there is no defect and that the same could be purchased. After that they returned to the workshop of PW-38, PW-37 carbon copy along with the photo copy of the R.C. and other documents were given to PW-35 and he gave Rs. 40.000/- to the first accused. The evidence of PW-36 is corroborated by PW-35, PW-38''s evidence also supports the evidence of PWs. 35 and 36 that on 5-10-1990 accused came with M.O. 10 car to Kollengode.

Serious challenge was made by the Learned Counsel for the appellants against the acceptability of the said evidence. It was contended by the Learned Counsel for the appellants that the evidence of these witnesses being inherently defective is not acceptable, that their Identification of accused persons in court cannot be relied on because though PW.56 admitted that a test identification parade was conducted, the report of the same was not proved; neither the Magistrate who conducted the test identification parade was cited nor was he examined. He also contended that Ext. P37 is a concocted document aimed to implicate and involve the accused persons in this offence.

The evidence of Pws. 35 and 36 is particularly important as they identify both the accused; and in Ext. P37 the 1st accused is a party and second accused is an attestor along with PW-36. PWs. 9, 35 and 36 participated in the test identification parade. The report of the Magistrate as regards the same is not proved by examining the Magistrate. The argument by the Learned Counsel for the appellant is that an adverse inference has to be drawn against the prosecution as to the said aspect. Learned Sessions Judge in paragraph 33 of the judgment observed: "But in this case, I find absolutely nothing in evidence to come to a conclusion that the production of such evidence would go against prosecution. There is nothing to show that any of the witnesses made a wrong identification or that persons other than the accused were identified. Any way, in view of the strong submissions made at the bench, I have verified the records and the report of the learned Magistrate regarding identification, invoking Section 165of the Evidence Act but I could not find that the suppression was deliberately made or that the production of the report will go against the prosecution. "Unless there is evidence or material to indicate that if such evidence is produced that would go against the party who suppressed it no adverse inference can be drawn. For appreciating this argument the purpose of the identification parade has to be kept in view. In the decision in Chandran v. State of Kerala (1987 (1) KLT 391 - DB) it is observed that substantive evidence of identification of an accused is the evidence given and identification made by a witness in court and that the result of the test identification parade would furnish to the investigating agency an assurance that the investigation is proceeding on correct lines. The same could furnish corroboration of the evidence given by the witness in court at the trial stage. The decision proceeded to state that successful identification parade renders it safe for the court to act upon the identification made in court, but it cannot be said that absence of test identification parade is fatal in all cases and that assurance could be available from other sources and circumstances. One Important aspect to be noted in this connection is that test identification parade is part of the investigation. In the decision in In re Sangiah (AIR 1148 Mad 116) Rajamannar, J. held :

In my opinion it does not take into account the important fact that an identification parade is a part of the investigation and once the case has reached the stage of an enquiry before the Magistrate the investigation is at an end and all that takes place thereafter should take place in Court and form part of the record of the case.

Section 172 (2) of the Cr. P.C. enables a criminal court to send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Applying the principle in Section 172 (2) the court can look into such a report produced in court to aid the court in the enquiry or trial. The report being among the case records, it cannot be said that the Sessions Judge had no jurisdiction or the Judge was wrong in perusing the said report for the limited purpose of seeing whether any prejudice was caused to the accused by not preving the same. It is necessary in this context to note, that it is net a ease where any record was withheld by the prosecuting agency. The records were in the court but there was failure to get the same proved by siting the witness. In such circumstance, it cannot be said that the evidence of PWs. 35 and 36 is adversely affected by the failure of the prosecution to prove the report of the test Identification parade. The evidence of PWs. 35 and 36 would show that both the accused persons were with them for a considerable time and the negotiation for the sale of M.O. 10 car naturally would have taken some time. Therefore, it was not a case where PWs., 35 and 36 had only a fleeting glimpse of the accused persons. On the other hand, they had occasion and opportunity to be in close proximity with the accused persons for a considerable time. In such circumstance, their identification in court cannot be called in question. As has already seep the test identification parade report has only corroborative function and the substantive evidence as regards the identification is the identification made by the witness in court. In the back ground of the fact that PWs.35 and 36 had acquaintance with the accused persons as indicated above, the identification made by them in court cannot be faulted. The argument of the Learned Counsel in this regard is only to be repelled.

It was also the contention of the Learned Counsel that Ext. P37 is a fabricated document. PWs. 35 and 36 have sworn the execution of Ext. P37 carbon copy. Ext. P37 was made by the same process of making of the original of Ext. P37. The only thing is that carbon copy was made, signatures were affixed on that carbon copy. Ext. P37 was seized by PW-56 from PW-35 at the time when he (PW-56) seixed M O. 10 car. Except for minor discrepancies as to whether the signatures were affixed on the original only and the signatures on Ext. P37 are the carbon copy of the signatures in the original no material contradiction or discrepancy is brought out in the evidence so as to discredit the testimony of PWs. 35 and 36. Whereas the name of the second accused is Paul, he has signed as Sajan. In the context of the evidence of PW 35 and 36, the case of the prosecution that the second accused concealed himself under a false name gains enough force. His presence is undisputably proved as per the said pieces of evidence to which advertance has already been made. It will be seen, the other pieces of evidence also is consistent with the said conclusion. It is contended that the handwriting expert''s evidence is not secured, that by itself need not affect the tesimony of PWs. 35 and 36 as to the execution of Ext P37 which, as indicated was seized by PW 56 from PW-35. The evidence will lead to the Inevitable conclusion that the second accused also was present at the scene of occurrence along with the 1st accused and thereafter. The evidence of PW-11 would show that M.O. 10 car reached Beevingal Ferry at about 9.00 p.m. on 4-10-1990 and left by 10.00-10.30 p.m.; the first accused was in the car. Apart from the driver, there was also another person in the car. PW-11 identified the accused persons but said that he has seen the second accused only once and added that he does not clearly know the 2nd accused though he pointed out him as the person who was with the first accused. Thus the evidence of PW-11 with respect to the identification of the 2nd accused could create doubt. Therefore, unless there is corroboration as regards the said aspect, it may not be possible to hold on the basis of the evidence of PWs. 10 and 11 alone that the second accused was present at Beevingal Ferry. As noticed, the features at the scene and the seizure of M. Os. 7, 8 and 8(a) would show that the scene of occurrence was at Palappilly. According to the prosecution, the occurrence lock place at 3.00 a.m. on 5-10-1990. Ext. P25 postmortem certificate shows that the postmortem started at 9.00 a.m. on 9-10-1990. PW-27, the doctor said, the lime of death would be approximately more than three days and less than five days prior to the commencement of the autopsy. The same is not inconsistent with the case of the prosecution that the occurrence was at 3.00 AM on 5-10-1990. As noticed, from Palappilly they reached Mupliyam, threw the deadbody and proceeded to Kollengode. PW-36 would state that accused persons reached his house at Kollengode in Palghat which is more than 100 kms. away from Mupliyam at about 6.00 a.m. on 5-10-1990. The residence of the accused persons is at Mupliyam with due regard to the time required to reach Kollengode from the scene of occurrence it is clear that the 2nd accused was with the first accused at about 3 Am on'' 5-10-90 else he could hot accompany the first accused to the residence of PW-36 at Kollengode so as to reach there by 6 AM on the same day. When the said aspect is taken into consideration, we have no hesitation to hold that the 2nd accused was with the first accused at the scene of occurrence.

The next circumstance which has got intimate connection with the aforesaid circumstances is the arrest of the accused, and the seizure and recoveries effected by PW-56. PW-56 said that he arrested the first accused on 22-10-1990 at 3 PM from the Bus stand at Nilambur in front of the Kavitba Hotel. Then the first accused was carrying MO-12 suitcase which contained MOs. 13 to 15, 17 series and MOs. 21 to 26, P7. P4 and P41 along with other material objects. Within MO-25 rexin bag kept la MO-12, MO 8(b) and MO 27 series currency notes to the value of Rs. 30,459/- was also found. Of this amount, a bundle of Rs. 100/- rupees currency notes was having the seal of State Batik of India, Thankamani Branch. PW-35 said that of the Rs. 40,000/- he paid on executing Ext. P-37, one bundle of Rs. 100/- currency notes was from the State Bank of India, Thankamani Branch; an indication convincingly showing that the amount found in MO-12 was part of the amount that PW-35 paid on execution of Ext. P37. MO-8(b) wrist watch was identified by Pws. 1 and 42 as the watch that deceased was wearing. The chain MO - 8 and MO - 8(a) pieces of the chain of the watch were found at the scene of occurrence which were seized under Ext. P20. Ext. P4 receipt for payment of insurance by Baby, Ext. P5 pass book of Baby, Ext. P7 diary and Ext. P41 driving licence of Baby were also found in MO-12 suit-case. Those were identified as that of Baby by PW - 1. Thus the seizure of MO -12 along with its contents from the first accused at the time of his arrest is of particular significance Inasmuch as the same show the involvement of the first accused in the transaction and therefore, the same is a highly incriminating circumstance against the first accused. According to PW 56 the second accused also was arrested at the time of arrest of the first accused from the bus stand. PW-44 also swears that the second accused was present at the bus stand. Thus the evidence of PW-44 leads corroboration to the evidence of PW-56 as to the arrest of the accused persons and seizure 0f material objects afore indicated. The presence of the 2nd accused along with the first accused on 22-10-1990 at Nilambur bus stand near Kavitha Hotel is of significance, and becomes an incriminating circumstance against the 2nd accused particularly in the context of the argument of the Learned Counsel for the accused that at any rate the presence of the 2nd accused at the time of execution of Ext. P37 could only be a coincidence and that he cannot be held to have any part in the transaction on account of such presence.

The argument stems from the fact that the 2nd accused has signed Ext. P37 only as an attestor. This argument has to be appreciated in the context of the fact that at 6 AM on 5-10-1990 when they came to the residence of PW-36 at Kollengode the second accused was present along with the first accused. With due regard to the proximity of time of occurrence with the time at which they started from Mupliyam to Kollengode, it is undoubtedly clear that the second accused was present along with the first accused at the time of occurrence. Again if his presence at the time of the execution of Ext. P37 on 5-10-1990 was a mere coincidence, there remains no reasonable explanation for his presence along with the first accused at Nilambur also on 22-10-1990 when they were arrested by PW-56 from Nilambur bus stand. The second accused was following the first accused as a shadow: it is impossible therefore in the cirumstance to hold that the presence of second accused at the time of execution of Ext. P37 was a sheer coincidence.

Now there are also recoveries at the instance of the accused persons. We may advert to the said recoveries. PW-56 said, (pursuant to Ext. P49(a) information received from the first accused, he recovered MO-18 shirt and MO-19 pants of the 1st accused from the sealing of the house of PW-53 under Ext. P-49 mahazar, the same is attested by PW-47 PW-56 also has sworn to the, effect that the place where the original of Ext. P-37 and R.C. Book were burnt was pointed out by the first accused and he prepared Ext. P-50 mahazar. So also, according to PW-56 the scene of occurrence too was pointed cut by the first accused and with respect to the same he prepared Ext. P20 mahazar; PW-21 is an attestor. Ext. P-21 mahazar with respect to the place from where the deadbody was thrown was prepared at the instance of the first accused, PW-23, an attestor to Ext. P-21 turned hostile. Of these recoveries, recoveries with respect to Exts. P-15, P-20 and P-21 and the statements attributed to the first accused concerning the same are not admissible in evidence u/s 27 of the Evidence Act as there was no discovery of fact With respect to the recovery of MOs. 18 and 19 since there was no authorship of concealment, it was contended that the said disclosure statement too is not admissible in evidence. In the decision in Pohalya Motya Valvi Vs. State of Maharashtra, it is held that the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gives information leading to Its discovery was the person who concealed it. But as held id the decision in Prakash Chand Vs. State (Delhi Administration), the conduct of the accused in leading the investigating officer to the place of concealment and pointing out the material objects is a conduct admissible u/s 8 of the Evidence Act. Ext. P-32, report of the chemical analyst would show that Nos. 18 and 19 contained human blohd.

Learned Counsel for the appellant coontended that in the circumstance the conduct could reveal only the knowledge of the accused as to the place of concealment and such knowledge need not imply that he was the person who concealed the same and when two interpretations are possible the one in favour of the accused must be accepted. The conduct of course would show that the first accused knew that the material object is in the place of concealment. In the circumstance when two views are possible the one in favour of the accused can be drawn in the absence of other Incriminating circumstances. Then, the effect of the knowledge- has to be considered in the context of the other incriminating circumstances. When the circumstances already discussed are taken into account, we have no doubt in our mind that since it was the first accused who concealed the same he knew the place of concealment. Learned Counsel for the appellants on the basis of the decisions in Aiyappaa alias Rutty v. State (1960 KLT 510) and Kansa Behera Vs. State of Orissa, contended that the character, nature and number of the bloodstains and the group of the blood since is not mentioned it Ext. P32 and Ext. P-49, the fact that there was bloodstains in MOs. 18 and 19 cannot advance the case of prosecution. On the other hand the learned Additional Director General of Prosecution relying on the decision in Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, contended that in the circumstance of the case the non-mention of the said aspect cannot affect the incriminating nature of the recovery. Referring to the decision in Kansa Behera Vs. State of Orissa, the decision in. Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, it is observed.

this Court, however, did not go so far as to say that such a circumstance does not even provide a link in the chain of circumstances on which the prosecution can place reliance. In the second case also this Court did not consider the evidence regarding the find of human blood on the knife sufficient to convict the appellant in the absence of determination of blood group since the evidence of. PW-2 was found to be uninspiring and there was no other circumstance to connect him with the crime..............The find of human blood on the weapon and the pant of the appellant lends corroboration to the testimony of PW-1 Komal Chand when be states that he had seen the appellant inflicting a knife blow on the deceased. The appellant has not explained the presence of human Wood on these two articles We are, therefore, of the the opinion that the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of the accused is of no consequence.

(Emphasis suppplied).

Though, there is no occurrence witness in this case with due regard to the fact that there are other incriminating circumstances against the first accused the fact that human blood was found in the dress worn by him is an incriminating circumstance particularly when the said dress was recovered at the instance of the first accused.

At the instance of the 2nd accused also recoveries were made. The three important recoveries made at the instance of the 2nd accused are: MO-4 ring, MO-5 dhothi of the deceased and MOs. 32 and 33 kaily and shirt respectively of the second accused.

Scathing attack was made by the Learned Counsel for the appellants against the said recoveries. PW-42 identified MO-4 as the wedding ring which Baby used to wear. PW-56 said that as per the disclosure statement Ext. P-15(a) he preceded along with the 2nd accused to the shop of PW-15 who produced MO 4 saying that the second accused sold the same to him. PW-15 deposed that he knows both the accused and said that first accused came for selling gold ring and he paid Rs. 600/-. After two, days, again accused persons came and sold MO-4. He maintained that the first accused gave it saying that the same belonged to him and he paid Rs. 1,000/- for the same. He also said that when the police came with the accused, he produced MO-4. He was declared hostile and was cross-examined. In the cros-examination be said that it was the second accused who placed the ring on the table and the first accused negotiated. He added that it was the second accused who gave it to him. It was contended by the Learned Counsel that the evidence of PW-45 would create enough doubt as to whether it was the second accused who actually sold the ring. In this connection he relied on Ext. D-18 remand report, copy of which Ext D-17 wherein it is said that MO-4 was recovered as per the statement by the first accused. We find it unsafe to rely on the said evidence as to the recovery of MO-4 in view of the inconsistency in the said evidence.

Then PW-56 said that as per disclosure statement by the 2nd accused and as led by him he reached Maravancherry along with the 2nd accused on 23-10-1990 and second accused took out MOs. 9 and 9(a) from the bush in between the side of the road and the property of one Jayaram which he seized under Ext. P-48.

PW-27 said, the injuries found on the deadbody could be caused with a weapon like MO-9. Ext. P32 Chemical Analyst''s report shows that MOs 9 and 9(a) had human bloodstains. It was contended that, since the contents of Ext. P-32 was not put to the accused persons when they were questioned the same cannot be rolled on. Accused persons were asked with reference to Ext. P-32. Therefore, the said attack cannot be sustained. In view of the evidence of PW-27 a weapon like MO-9 could cause injuries mentioned in Ext. P-25 and also on account of the fact that both MOs. 9 and 9(a) were having human bloodstain, it is clear that MO-9 was involved in the transaction. Though the disclosure statement does not contain the authorship of concealment the conduct of the 2nd accused in leading PW 56 to the place of concealment and his taking out the weapon is admissible in evidence u/s 8 of the Evidence Act. In the context of the other incriminating circumstances to which edvertance has already been made the second accused''s knowledge itself becomes incriminatory and operates as a relevant circumstances to be reckoned in the chain of circumstances

PW- 56 said that as per Ext. P-19(a) disclosure statement of the 2nd accused to the effect that if be is taken he would show the place where he threw the dhothi and as led by the 2nd accused he reached Uzhinjarpadam and PW-20 the attestor fished out MO - 5 from the river which he seized under Ext. P-19. PW-42 identified MO-5 as the dhothi worn by Baby when he left in the morning of 4.10.1990. Learned Counsel for the appellants contended that this recovery is artificial as according to the Learned Counsel whereas MO-9 was recovered on 22-10-1990, MO - 5 was recovered only on 28-10-1990 at about 3.30 PM only 80 meters away from the place from where MO-9 was recovered. According to him there is absolutely no reason for the delay in effecting the recovery of MO-5. PW-56 said that since the second accused was arrested on 22-10-1990, he was produced before court and later he had to get him back for effecting the recovery. In the said evidence of PW-55, ft cannot be said that the said piece of evidence is affected by the delay alleged by the Learned Counsel for the appellant. As noticed, though Ext. P-19(a) does not contain the authorship of concealment the conduct of the second accused in leading PW-56 to the place of concealment is admissible u/s 8 of the Evidence Act and his knowledge as to place of concealment, in view of the other incriminating circumstances is relevant and is a link in the chain of circumstances. According to the prosecution the two accused persons were in the car when the second accused threw MO-9 knife and MO-5 dhothi on their way to Mupliyam after the occurrence. In view of fact that the first accused was driving the vehicle, it highly improbable that the first accused could have thrown MO-9 and MO-5 As noticed, the circumstance are compelling the second accused alone could have thrown MOs. 5 and 9 at the respective places.

The next recovery is that of MOs. 32 and 33 kally and shirt respectively of the second accused. The same was recovered by PW-56 under Ext. P16 mahazar. (PW-56) said that pursuant to Ext. P-16(a) disclosure statement by the 2nd accused and as led by him, he reached the house of the second accused, and the second accused took out MOs. 32 and 33 from the upper part of the wait almirah which he seized under Ext. P-16. In Ext. P-16(a) the 2nd accused said that kaily and shirt are kept in the eastern room of his house and if he is taken there he would produce them, Here also Ext. P-16(a) does not contain authorship of concealment; but the conduct of the 2nd accused is clear from the evidence of PW-56. He took out the articles from the wall almirah in his house.

Learned Counsel for the appellant relying on the decision in Crl. Appeal No.378 of 1990 contended (hat since the same was taken out from an open place, even the conduct is not admissible in evidence It must be noted that the second accused took out MOs. 32 and 33 from a wall almirah not a self. Therefore, it cannot be assumed that the almirah did not have doors. The argument cannot be accepted when the article is kept in an almirah he took out the sams and produced it before PW-56. MOs. 32 and 33 had human bloodstains. The fact that the kaily and shirt belonging to the second accused had human bloodstains and the same were seized from his own house itself is an incriminatory circumstance and has to be taken into account along with other circumstances.

From the above discussion, It is absolutely clear that after murder of Baby, accused persons travelled in the car, the first accused was at the wheel. The second accused is a labourer. As noticed, the circumstances clinchingly show, the 2nd accused accompanied the first accused not as an innocent passenger, he was there as a participant in the transaction. The first accused sold the car to PW-35. A lion portion of the consideration was recovered from him. Second accused figured as the attestor to Ext P-37. As indicated early, his presence at that time was not a coincidence; on the other hand his conduct to which advertance has already been made would show that he was an associate with the first accused. The arrest of the 2nd accused along with the first accused on 22-10-1990 from the bus stand at Nilambur also supports the aforesaid inference. The evidence of PW-56 would show that though he went to the house of the accused persons before their arrest, they were not there. The fact that the accused persons made themselves scarce after the occurrence is another circumstance to be taken into consideration in deciding the common Intention. The circumstances discussed above would show, the second accused shared common intention with the first accused, and there was participation. The possession of M.10 has tq be considered in the said background. So understood, it could be seen that both were in joint possession of MO-10 car, The same was stolen property. The person in possession of the car was; found murdered.

The decision in Mohanan Kanl v. State of Kerala (1992 (2) KLT 839) held that the recent and unexplained possession of the stolen articles would be presumptive proof against the accused of the charge of robbery as also of the charge of murder. This also supports the prosecution case against the accused persons. In view of the above discussion, we have no hesitation to hold that the prosecution is successful in establishing the circumstances cogently and firmly. The said circumstances cumulatively would point to the guilt of the accused persons and (he same is incapable of any hypothesis other than the guile of the accused, They are also inconsistent with the innocence of the accused.

In view of the above, the conviction of the accused persons by the learned Sessions Judge for the offences punishable under Sections 364, 392 and 302 read with Section 34 IPC has only to be confirmed We accordingly confirm the same.

Now the question that arises for consideration is as to the sentence awarded by the learned Sessions Judge. As noticed, accused persons were sentenced to death by the learned Sessions Judge. It was argued by the Learned Counsel for the appellants that the learned Sessions Judge has committed a grave error in awarding maximum penalty. He maintained that this is not a rarest of rare cases so that the death sentence could be imposed. He maintained that the learned Sessions Judge did not view the case fn the context of the change of law as regards this aspeot. He also contended that the learned Sessions Judge has committed procedural irregularity also.

On the other hand, the Additional Director General of prosecution would maintain that the nature of the offence and the attendant circumstances would show that this is one of the rarest of rare cases and therefore the sentence awarded by the learned Sessions Judge has only to be confirmed.

Prior to 1955 Section 367 (5) of the Cr. P.C., 1898 insisted upon the Court to state its reason if the sentence of death was not imposed on finding that the accused is guilty of murder. So in the absence of extenuating circumstances, which are to be stated by the court, the ordinary penalty for murder was death. In 1955, sub-section (5) of Sec. 367 Cr. P.C. 1898 was deleted and that was interpreted to mean that the sentence of life imprisonment was the normal sentence for murder and the sentence of death could be imposed only if there were aggravating circumstances. In the Criminal Procedure Code, 1973, Section 354 (3) provides that when the conviction is for an offence punishable with death, or, in the alternative, with imprisonment for life imprisonment for a term of years, the judgment shall state reason for the sentence awarded, and in the case of sentence of death, the special reasons for such sentence should be stated. Thus the march of law on this aspect has to be kept in view in deciding upon the sentence to be awarded. Undoubtedly, now it is clear that (if death sentence is opted, special reasons must be recorded. In the decision in Machhi Singh and Others Vs. State of Punjab, it is held that the death penalty need not be inflicted except in gravest cases of extreme culpability and that before opting for the death penalty the circumstances of the ''offender'' also require to be taken into consideration along with the circumstances of the ''crime'', This certainly would show that the death penalty cannot be imposed merely looking at the crime alone. It is necessary to take into account the circumstance of the offender also. As is stated in Rajendra Prasad Vs. State of Uttar Pradesh, it is necessary to find out "whether the murderer offers such a traumatic threat to the survival of social order". In Bachan Singh Vs. State of Punjab, quotes aggravating circumstances suggested by Dr. Chitale and paragraph 204 quotes mitigating circumstance of which the third is the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society, and the fourth is the probability that the accused can be reformed and rehabilitated. The Supreme Court in Bachan Singh Vs. State of Punjab, observed; "We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence". In the decision in Malkiat Singh and Others Vs. State of Punjab, as regards this aspect at page 356 the Supreme Court said: "Therefore, sufficient time must be given to the accused or prosecution on the question of sentence, to show grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be." Having noted the position of law as indicated above, it is now necessary to advert to the propriety in awarding (he death sentence in this case. It has to be noted that the judgment does not show that the Public Prosecutor made any submission as regards sentence. In other words, there was no submission by the prosecution for awarding the death sentence to the accused persons Learned Additional Director General of Prosecution maintained that, that need not hinder this Court from confirming the death sentence awarded'' by the learned Sessions Judge. But we consider that'' the said fact cannot be ignored. In the decision in Rajendra Prasad Vs. State of Uttar Pradesh, , the Supreme Court observed:

92.......In fact, this provision should be construed to mean that where the Court has to choose one or the other sentence and if with a view to inflicting a certain sentence, Special reasons are required to be recorded obviously the State which is the prosecutor must be called upon to state to the court which sentence as prosecutor It would consider appropriate in the facts and circumstances of the case.

Where the accused is convicted for an office under S. 302 IPC, the Court should call upon the Public Prosecutor at the stage of S.235 (2) to state to the Court whether the case is One where the accused as a matter of justice should be awarded the extreme penalty of law or the lesser sentence of imprisonment for life. If the Public Prosecutor informs the Court that the State as Prosecutor is of the opinion that the case is not one where extreme penalty is called for and if the Sessions Judge agrees with the submission, the matter should end there

If on the other hand the Public Prosecutor states that the case calls for extreme penalty prescribed bylaw, the Court would be well advised to call upon the Public Prosecutor to state and establish, if necessary, by leading evidence, facts for seeking extreme penalty prescribed by law. Those reasons and the evidence in support of them would provide the special reasons according to the State which impel capital punishment. It would be open to the accused to rebut this evidence either by submissions or if need be, by leading evidence.

One observation by the learned Sessions, Judge is relevant in this connection:

I find no extenuating circumstance to cut down the punishment and I am convinced that the accused reserve extreme punishment in this case. Even though it is not rare to come across with murders for gain and it is also common in the society, the facts and circumstances of this case make this case "rarest of rare cases.

It was argued by the Learned Counsel for the appellants that the laid observation by the learned Sessions Judge that, there is no extenuating circumstance to cut dawn the punishment would imply that the ordinary sentence to be awarded in a case of murder is death sentence. According to the Learned Counsel for the appellant this shows the wrong approach made by the learned Sessions Judge. As already noticed, special reasons for awarding death sentence must be stated. Murder for gain by itself need not invite death sentence. It all depend upon the facts and circumstances of each case. The effect of degree of brutality of the murder has to be considered in the context of criminal also. When so considered, we are of the view that, this case cannot be treated as rarest of rare so that capital punishment can be imposed. In view of the above, when we confirm the conviction by the learned Sessions Judge, we set aside the sentence of death awarded to the accused persons. Learned Sessions Judge did not award any sentence for the offences punishable under Sections 392 and 364 IPC in view of the death sentence. Now that we have found that this is not a case where death sentence can be awarded. In such circumstance both the accused persons are sentenced to undergo rigorous imprisonment for seven years u/s 392 IPC, rigorous imprisonment for five years u/s 364 IPC and imprisonment for life for the offence punishable u/s 302 IPC. The sentences shall run concurrently.

In the result, the appeal is allowed in part as indicated above and the R.T. is answered accordingly.