Govinda Menon, J. These three appeals arise out of Sessions Case No.62 of 1952 on the file of the Court of Session of the West Tanjore division wherein two accused were tried for an offence under section 302 read with section 34, Indian Penal Code, in that they committed murder by causing the death of one MounaSwami by cutting him with an aruval on the night of the 27th June, 1952, at Chandrasekarapuram village. The learned Sessions Judge found that those arraigned for this offence were guilty under section 460, Indian Penal Code and sentenced each one of them to transportation for life. He also found each one of them guilty under section 380, Indian Penal Code and sentenced each of them to rigorous imprisonment for a period of seven years. The sentences were directed to run concurrently. The result of convicting the accused under section 460, Indian Penal Code, was the acquittal of the accused under section 302 read with section 34, Indian Penal Code and therefore the State has preferred C.A.No.175 of 1953 questioning the correctness of the acquittal of the accused for the offence of murder. Each of the accused has filed an appeal against his convictions and sentences. In the village of Chandrasekarapuram, an ascetic known as Mouna Swami, was residing in a matam adjoining a Subramania temple both of which had an adjacent tank and were situated on the eastern extremity of the village. Towards north runs a road from Valangiman to Papanasam and it is also seen from the plan, Ex. P-26, that there was a fencing on three sides of the compound wherein the matam and- the temple were situated and on the fourth side, viz., the southern side, there was a wall about 5 feet in height. It is not necessary to relate in any detail the habits of this Swami, for it is not disputed that on the night of the 27th of June, 1952, this Swami, as usual, after taking his night refreshment which consisted of a glass of milk, went to sleep in the matam which was a small building surrounded on three sides by walls with an opening to the east closed by a thatti door. It is further in evidence that when he was last seen alive, i.e., at about 9 p.m., on the night of occurrence, he was wearing kashayam robes and had a gold-chain on his neck and some gold-rings on his fingers. The next morning at about 6 a.m., he was found murdered in the matam and the jewels on his person were missing. According to the post-mortem certificate Ex.P-1, this Swami had died of shock and hemorrhage due to the injuries on his person of which the necessarily fatal injury was injury No.5, viz., an incised gaping wound across the middle of the neck 3“x3” cutting the vessels and stomach underneath with a cut on the vertebra below to a depth of i inch. There were also five other injuries but injury No.5 being necessarily fatal, death would have been practically instantaneous. There is therefore no doubt whatever that somebody inflicted the wounds on this unfortunate hermit during the night in question and robbed him of the jewels on his person. According to the prosecution case, the two accused in the Court below were the murderers and thieves. A brief resume of the prosecution evidence can now be given. P.W.1, who was employed as a gardener of the Subramaniaswami temple and who used to sweep and clean the matam as well, deposed that on the 27th June, 1952 at about 6p.m., he left the matam and the temple after finishing his daily work and returned home’ At that time the Swami was alive and was at the matam P.W.2, the poojari attached to the Subramaniaswami temple employed by the Swami, was in the temple till 9p.m., on the 27th June, and it was he who gave the Swami his milk food for the night. On the morning of the 28th when both P.Ws.1 and 2 went to the matam and the temple at about 6am., they found the Swami murdered and the jewels on his person missing. The evidence of P.W.2 which could not be, and has not been, questioned, is that on the previous night, i.e., at 9p.m. on 27th May, 1952, the Swami was wearing the gold-chain on his neck and rings on his fingers as it was customary for him to do. The evidence of P.W.2 which could not be, and has not been, questioned, is that on the previous night, i.e., at 9p.m. on 27th May, 1952, the Swami was wearing the gold-chain on his neck and rings on his fingers as it was customary for him to do. When P.Ws.1 and 2 saw the dead body inside the matam and the articles there thrown pell-mell, information was given to P.W.4, the village headman under whose protection the Swami was and who used to supply the Swami with the necessary wherewithal as well as his food. This information was given to him by P.W.1 at the instance of P.W.2. Immediately P.W.4 informed his opposite house neighbour P.W.5, and both of them proceeded to the matam found the Swami lying murdered in a pool of blood, and the vessels and other utensils lying scattered. The village headman prepared a yadast Ex P-2, to the police and the Sub-Magistrate of Valangiman and sent them immediately. The Sub-Inspector of Police, P.W.20, arrived on the scene at about 2-30A M., and saw the corpse of the Swami lying on a quilt spread on two benches with injuries on his person. The articles were seen lying scattered and the boxes were found open. After holding the inquest the dead body was sent for post-mortem examination to the doctor. At the inquest the Sub-Inspector examined the gardener, the poojari, the village headman and his friend Doraiswami Aiyar. For some-time there was no clue whatever regarding the crime. But strenuous investigation led the police to a clue which, when pursued further, unearthed the mystery. On 19th July, 1952, the second accused was arrested in the village of Chandrasekarapurarn. He made a statement which led to certain discoveries. The admissible portions of the statement are Exs.P-4, P-4(a) and P-4(b). From the backyard of his house the second accused produced a tin box M.O.8, which contained M.Os.1, 2 and 3 which were respectively two gold-rings and a piece of gold-chain The recovery of these articles, as a result of a confession made by the second accused, is proved not only by the Sub-Inspector, P.W.20, but also by the village headman P.W.4, and Doraiswami Aiyar, P.W.5. In pursuance of the statement made by the second accused, the first accused was arrested on 20th July, 1952, at about 12 noon in the village of Avoor. In pursuance of the statement made by the second accused, the first accused was arrested on 20th July, 1952, at about 12 noon in the village of Avoor. The first accused also made a statement which led to some discovery. This statement as is the case with the other, is proved by the Sub-Inspector and also by two respectable individuals of that village P.Ws.7 and 8. The admissible portions of that statement are Exs.P-9 and P-9(a) which are to the following effect: “Exhibit P-9: I have buried and placed the two rings and half the portion of the minor chain (kept in a small piece of cloth) north of Ammi (mortar).” “Exhibit P.9(a): If (anybody) comes with me, I shall take out and produce the two rings and half the portion of the minor chain, which have been buried in my house.” These are M.Os.4, 5 and 6 which are respectively a piece of gold-chain and two rings. M.Os.1, 2, 3, 4, 5 and 6 are identified by P.W.8 as having belonged to the Swami and as in his possession on the night he was murdered. In addition we have the evidence of P.Ws.13 and 14, a wife and husband respectively, who deposed that they got made M.Os.2, 3, 4 and 5 and presented them to the Swami. P.W.15, a clerk in Gopaldas and Company, Kumbakonam, speaks to the fact of P.Ws.13 and 14 having made the chain originally made up of M.Os.3 and 4 and the two rings M.Os.2 and 5. The two rings M.Os.1 and 6 are proved to have been pledged with the Swami by P.W.16 who proves the same. Her husband, P.W.17, corroborates her evidence. The second accused was then produced before the Sub-Magistrate of Nidamangalam before whom he made the confessional statement Ex. P-7, which is proved by the Sub-Magistrate himself as P.W.6. The confession was recorded after all the necessary warnings required under section 164, Criminal Procedure Code and rule 85 of the Criminal Rules of Practice had been given and after all the formalities had been regularly, properly and consistently complied with. The Sub-Magistrate deposes that he satisfied himself that the confession was voluntary before the same was recorded. In this confession the second accused admits that both he and the first accused, after previous discussions and confabulations, decided to raid the matam at night and rob the Swami of the materials. The Sub-Magistrate deposes that he satisfied himself that the confession was voluntary before the same was recorded. In this confession the second accused admits that both he and the first accused, after previous discussions and confabulations, decided to raid the matam at night and rob the Swami of the materials. We do not think it necessary to extract the confession in extenso but shall only give an excerpt to show how the Swami came by his death: “We drew out the hook and entered inside. Singaram told me to focus the light. Swamiar was sleeping soundly. Above his head the bunch of keys was hanging. Singaram took out the bunch of keys. Swamiar at once awoke. Soon after he woke up, he extended the aruval in front of his face. He asked him ‘where have you placed all? Take out’. At once he gets alarmed and got up. At once Singaram delivered a forcible cut in his neck. I was focussing the light above him. He fell out, receiving the single cut. He further dealt with five or six cuts. I got frightened and put out the light. He asked me to switch on the light. I switched on the light. I said, ‘saying that we might rob the jewels and go away, you have brought me, and alas! You have committed a murder like this’. He remarked ‘do not make noise. Be quiet’. At once he broke the box, opened the papers and scrutinised them. I was standing switching on the light. There was a trunk in the bureau. He asked me also to see it. I scrutinised all of the papers with one hand. There was a ring in a packet. I took it out and gave it to him. He took out Rs.30 from a cover. We went near the Swamiar and saw. He lay in his lying posture. He cut the minor chain worn in the Swamiar’s neck by means of the tip of the aruval. After taking it, he removed the three rings worn by the Swamiar in his hand. One ring could not be removed. He cut it a little and drew it. It came out After taking them all he wiped the blood in the aruval in the cloth by the side of the head At once we both came out. After taking it, he removed the three rings worn by the Swamiar in his hand. One ring could not be removed. He cut it a little and drew it. It came out After taking them all he wiped the blood in the aruval in the cloth by the side of the head At once we both came out. We went to the Kamakshiarnman Koil straight.” This confession so far as the murder is concerned is exculpatory of the second accused, but it is clear that both of them had previously conspired to break open into the Swamiar’s sanctuary and rob him of the jewels. The only other witnesses about whom reference has to be made are P.Ws.11 and 12. P.W.11 deposes that while he and the second accused were sleeping in the tea-shop belonging to the second accused which was very near the matam and the temple and adjoining the Papanasam Valangiman Road, the first accused came to the tea-shop at about 12 midnight and he and the second accused were talking together in whispers. Thereafter the first accused who had brought some arrack poured it into two glasses and each one of them took one glass. Then they went out. The next morning P.W.11 learnt that the Mouna Swami had been murdered. The substance of this witness’s deposition is that just before the murder, accused 1 and 2 met together in the tea-shop of accused 2, had a drink and went out together. If this evidence has to be accepted, it shows that both the accused were seen together in the near vicinity of the matam on the night when the Swamiar was attacked and killed. We have been shown no reason why the evidence of P.W.11 who, from cross-examination does not seem to be an interested person at all, should not be believed. P.W.12 speaks to the fact that the second accused told him ten days prior to the occurrence that they should get the cash from the Swamiar and for which purpose he invited the witness to join him. But the witness turned down the idea pointing out that he wanted to earn an honest living and not earn anything by robbery. P.W.12 speaks to the fact that the second accused told him ten days prior to the occurrence that they should get the cash from the Swamiar and for which purpose he invited the witness to join him. But the witness turned down the idea pointing out that he wanted to earn an honest living and not earn anything by robbery. By this evidence, the prosecution attempts to prove that the two accused entered into a conspiracy for the purpose of breaking open into the house of the Swamiar and robbing him of the jewels and that in the course of that robbery, they conjointly committed the murder of the Swamiar. In the Sessions Court the first accused completely denied having anything to do with the robbery or with the murder. The second accused, before the committing Court admitted having made the confession to the Sub-Magistrate but stated that it was not a voluntary statement but was the result of tutoring by the police. As we have already stated, the learned Sessions Judge found the accused guilty under section 460, Indian Penal Code and section 380, Indian Penal Code. In paragraphs 23 and 24 of his judgment, the learned Sessions Judge discusses the effect of the evidence to find out what the offence is. If we accept the evidence outlined above, in our opinion there can be no doubt whatever that both the accused are guilty of murder and that the lower Court was not justified in convicting them of an offence under section 460, Indian Penal Code. This section can be invoked only if, from the evidence, it is clearly possible to conclude that before the commission of the lurking house trespass by night, or house breaking by night, the offenders did not have a common intention of committing anything other than the above-mentioned offences and that therefore, if during the course of the commission of such an offence one of the persons causes death or grievous hurt to any person, then only, every person jointly concerned in committing lurking house trespass by night or housebreaking by night shall be guilty of an offence under section 460, Indian Penal Code. It seems to us that in the present case the invocation of section 460, Indian Penal Code, is irregular. It seems to us that in the present case the invocation of section 460, Indian Penal Code, is irregular. If on the other evidence we are satisfied that the accused are guilty of the acts alleged, then section 460, Indian Penal Code, is out of place. Such being the case, it has to be seen whether the facts and circumstances are such as would impel us to draw the only conclusion that is possible, namely, that both the accused are guilty of an offence under section 302 read with section 34, Indian Penal Code. The following facts cannot be disputed. At 9 p.m., on 27th June, 1952, the deceased was alive and was possessed of M.Os.1 to 6 of which M.Os.2 to 5 were on his person. The next morning he was found murdered having come by his death as a result of the injuries inflicted on him. The jewels on his person were missing. We accept the evidence of P.W.20 that on the information given by accused 2, accused 1 was traced and arrested. As a result of the statement Exhibit P-4 series made by the second accused, M.Os.1 to 3 were discovered. Further, as a result of statements made by the first accused, M.Os.4, 5, and 6 were also discovered. Lastly the other important piece of evidence which cannot be discarded is that at or about the time when the murder took place, the two accused were seen together in a near vicinity of the scene of murder. From these circumstances, is it possible to hold that the accused are the murderers? There has been a line of cases in this Court of which the latest reported one is in Kallam Narayana v. King Emperor1, where a Bench consisting of Beasley, C.J. and Reilly, J., came to the conclusion that if a person is found in possession of property proved to have been in the possession of the murdered person at the time of the murder, or if he is able to point out the place where such property is concealed and admits having concealed it and fails to give any explanation of the possession of the property, which can be reasonably accepted, then an inference can reasonably be drawn under section 114 of the Evidence Act that such person committed the murder or took part in its commission. It was further held that it is not the duty of the Judge or the Jury to find out whether there are reasonable explanations for the possession of the articles belonging to the deceased by the accused. The learned Judges referred to and distinguished an early case of this Court in Sogaimuthu Padayachi v. King Emperor2. The Bombay High Court in Emperor v. Basangouda Yamanappa3, considered the Madras decision and disagreed with the expression of opinion by Reilly, J., that it is not the duty of the Court to suggest a possible explanation as to how the accused came by possession of the articles which belonged to the deceased and were in his possession at or about the time of death. Beaumont, C.J., laid down that the circumstantial evidence must be consistent and consistent only with the guilt of the accused and that if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused is entitled to the benefit. The point on which therefore the two decisions differ is regarding the duty of the accused to suggest the explanation. This divergence of opinion was considered recently by a Bench of this Court in R.T.No.113 of 1952 where Chandra Reddy, J., comes to the following conclusion: “It is seen from all these decisions that the basic principle is that if an accused person is found in the possession of articles which were obtained as a result of robbery and these articles belonged to a person who was murdered and are proved to have been on the body of the murdered person at the time of murder, and there is no explanation for the possession of those properties, an inference could be drawn that either he took part in the murder or he was privy to it. The only divergence of judicial opinion is with regard to the question whether the explanation for possession would be given by the accused himself or whether it is the duty of the Court to see if there can be other rational explanations for the possession consistent with the innocence of the accused as could be gathered from the evidence on record. However in this case the necessity to reconcile the various decisions does not arise. However in this case the necessity to reconcile the various decisions does not arise. It is pertinent to note in this connection that no explanation is offered by any of the appellants for the possession of these jewels.” With due deference to the eminent Judges who took part in Kallam Narayana v. King Emperor1, and Emperor v. Basangouda Yamanappa2, it seems to us that mere possession by an accused person of articles which were on the person or custody of a murdered man without any explanation for such possession cannot lead to an inference that he took part in the murder or that he was privy to it. The presumptions mentioned in the illustration to section 114 of the Evidence Act cannot be stretched to that extent. One can very well imagine a case where a jewel on the person of a murdered individual came to be in the possession of another without any kind of reasonable explanation being offered by that individual. The fact that no rational explanation is possible, or that the explanation offered is unacceptable, should not militate against the innocence of the individual with regard to the offence of murder. Something more is necessary than mere possession of articles. In the present case we have the evidence of P.W.11 which we accept in its entirety that the two accused were in the near vicinity of the matam where the Swamiar was sleeping at or about the time when he came by his death and that is a circumstance which would ordinarily be sufficient to entitle the Court to presume that the accused were parties to the murder or were privies to it. Ordinarily the presumption from the possession of articles belonging to the deceased by accused persons immediately after the murder or robbery should be drawn only where some more evidence is present to show that the accused persons were seen with the deceased immediately before his death or that the deceased was last seen alive in the company of the accused persons. In Queen Empress v. Sami3, the learned Judges observe as follows: “In cases in which murder and robbery have been shown to form parts of one transaction it has been held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder. All the facts which tell against the appellant, especially his conduct indicating a consciousness of guilt, point equally to the conclusion that he was guilty as well of murder as of the robbery committed.........” In that case, the learned Judges, though they expressed themselves in rather wide terms in the passage above quoted, were of opinion that in addition to the circumstance regarding the unexplained possession of the stolen property there were other matters also which showed that the accused was the murderer. The decision in Kallam Narayana v. King Emperor1, seems to lay down that there is some kind of onus on the accused to prove how he came to be in possession of the articles. As laid down by the House of Lords in the Woolmington v. Director of Public Prosecutions4, there can be no onus of proof cast on an accused person in cases of this nature and so it will be. difficult to agree with certain observations contained in Kallam Narayana v. King Emperor1. We are of opinion, as observed by the learned Judges of the Bombay High Court in Emperor v. Basangouda Yamanappa1that the observations in Kallam Narayana v. King Emperor2, go a little too far. We wish to point out that unless some kind of connecting link, however remote it may be, is made out between the movements of the deceased and the accused, at or about the time of murder, even if no reasonable explanation can be suggested or invented by the Court for the possession by the accused of the stolen articles, it would be unsafe to convict the accused person of the offence of murder. Usually some testimony would be forthcoming that the deceased was last seen alive in the company of the accused or that the accused were found somewhere in the vicinity of the scene of murder at a time which has sufficient proximity to the incident. Usually some testimony would be forthcoming that the deceased was last seen alive in the company of the accused or that the accused were found somewhere in the vicinity of the scene of murder at a time which has sufficient proximity to the incident. Unless some such connection can be made out we feel that the inference of murder should not be drawn. In the present case, as we have already stated, the evidence of P.W.11 is sufficient to show the connection mentioned by us above. The second accused in his confession does not in so many terms implicate himself in the act of murder. But he definitely recites the first accused’s part in the murder This confession can under section 30 of the Evidence Act be taken into consideration against the first accused. Even without that confession in our opinion there is ample evidence in the case for the Court to come to the irresistible conclusion that the two accused are the murderers ; and the self-exculpatory statement by the second accused should not in any way detract from the other circumstantial evidence from which the conclusion could be drawn that the second accused is also one of the murderers. The learned Sessions Judge has laboured hard to apply section 460, Indian Penal Code, which in our opinion cannot be invoked, for both the accused can be held guilty under section 302 read with section 34, Indian Penal Code. Where one or more persons with only an intention to commit robbery or theft, after committing lurking house trespass or house breaking by night, inflict an injury on anybody or puts an end to the life of any person, it is only then that section 460, Indian Penal Code, can be invoked. The necessary foundation for the application of section 460, Indian Penal Code, is the absence of any kind of common object or common intention between the delinquents. A person without a common object, or a common intention with another, can be held guilty under section 460, Indian Penal Code, if the circumstances mentioned in that provision of law are complied with. In the present case we are definitely of opinion, in view of the evidence discussed by us above, that the inference is irresistible that both the accused are guilty of an offence under section 302 read with section 34, Indian Penal Code. In the present case we are definitely of opinion, in view of the evidence discussed by us above, that the inference is irresistible that both the accused are guilty of an offence under section 302 read with section 34, Indian Penal Code. Therefore the acquittal of the appellants under section 302 read with section 34, Indian Penal Code, is set aside and they are convicted under those sections. The conviction under section 460, Indian Penal Code, is set aside. The appellants are each sentenced to transportation for life. The sentence of seven years’ rigorous imprisonment imposed on each accused under section 380, Indian Penal Code will also stand. The sentences will run concurrently. R.M. ----- Conviction and sentences varied.