Judgment :- 1. The criminal appeal and referred trial arise from the judgment of the learned Sessions Judge of Trichur in S.C. No. 18 of 1955. In that case one Raghavan, son of Mupparath Raman of Karalam Village, at Elampuzha, Mukundapuram Taluk, (hereinafter referred to as the accused) stood charged with the commission of an offence punishable under S.302 of the Indian Penal Code. The case was that at about 9 P.M. in the night of 7th August 1954 (corresponding to 22nd Karkadagam 1129 M.E.) the accused caused the death of one Abdul Kadir, a dealer in textile goods, by cutting him with a chopper while he was proceeding home along the bund by the side of the Kuruvannoor River. The trial was conducted with the aid of three assessors. The learned Sessions Judge agreeing with the unanimous opinion of the assessors found the accused guilty of the offence of murder and sentenced him to death. The accused has preferred the criminal appeal against the conviction and sentence and the referred trial is the reference under S.374 of the Code of Criminal Procedure for confirmation of the death sentence. 2. The prosecution case as put forward before the lower court is as follows: Deceased Abdul Kadir resided at Ettumuna in Karalam Village. He had a textile shop at Karalam. The accused was an employee under him for some time but his services were dispensed with in Meenom 1128 M.E. on account of suspicion about his honesty. The accused who had a family to support found it difficulty to get a job. He had a greivance against Abdul Kadir as he thought that his failure to get a job was due to the adverse opinion given by Abdul Kadir when references were made to him by persons of whom he sought employment. For some time the accused had been to Malabar seeking some work there. He got some temporary jobs only. Hence in Mithunam 1129 M.E. he returned home from one of those trips and resided with his parents. On the date of the occurrence,namely, 7th August 1954, at about 5 P.M. he went to his wife's house to inquire about the ailment of his mother-in-law. At about 6 P.M. he left the house saying that he will procure some medicinal pills to relieve her suffering. He then crossed the Vellani ferry and went to his house. On the date of the occurrence,namely, 7th August 1954, at about 5 P.M. he went to his wife's house to inquire about the ailment of his mother-in-law. At about 6 P.M. he left the house saying that he will procure some medicinal pills to relieve her suffering. He then crossed the Vellani ferry and went to his house. From there he armed himself with a chopper and dressed in a black shirt, went towards the bund by the Karuvannoor River and waited near Arattukadavu. This was the way by which deceased Abdul Kadir used to pass when going home after closing his textile shop at Karalam. On that day also, he came that way at about 9 P.M. Then the accused way laid him and cut him with the chopper he had with him, inflicting fatal injuries. Leaving Abdul Kadir so wounded the accused left the spot, went to his house and from there proceeded to an Ayurvedic Physician and obtaining the medicinal pills returned to his wife's house. Soon after the occurrence, Pws.1 and 2 returning home after their day's work along with the bund found Abdul Kadir lying there with fatal injuries. They procured help and removed him to the Irinjalakuda Hospital where on examination the Doctor found that Abdul Kadir had already passed away. On receipt of information a crime was registered and first information report despatched that night itself by the Head Constable in charge of the Irinjalakuda Police Station. The accused was arrested on 14th August 1954. His confesison was recorded by the 2nd Class Magistrate of Mukundapuram under S.164 of the Criminal Procedure Code and on the information supplied by the accused the clothes worn by him at the time of the occurrence, the chopper used and other articles then in his possession were recovered from the channel a little away from his house. On the basis of the aforesaid evidence he was charge-sheeted and committed to the Sessions. In the enquiry court as well as in the Sessions Court the accused retracted his confession and pleaded innocence. The learned Sessions Judge found him guilty, awarded him the capital sentence and the conviction and sentence are sought to be set aside in the appeal. 3. There is no eye witness of the occurrence. In the enquiry court as well as in the Sessions Court the accused retracted his confession and pleaded innocence. The learned Sessions Judge found him guilty, awarded him the capital sentence and the conviction and sentence are sought to be set aside in the appeal. 3. There is no eye witness of the occurrence. The conviction is based upon circumstantial vidence, the extrajudicial confessions made by the accused to his parents and brother examined as Pws. 22 and 24, and the judicial confession, Ext. P(19), recorded by the 2nd Class Magistrate of Mukundapuram. The question for consideration before us is as to whether the crime has been brought home to the accused. That Abdulkadir died as a result of the injuries sustained by him at about 9 P.M. on the night of 7th August 1954 (corresponding to 22nd Karkadagam 1129 M.E.) while he was proceeding by the bund on the side of the Karuvannoor River near the Arattukadavu is amply borne out by the evidence on record. Pw. 9, a neighbouring shop-keeper, deposes to having seen Abdulkadir close the shop and leave at about 8 P.M. on that day. Pw. 12, another shop-keeper, corroborates it. Other witnesses depose to having met him on the way before reaching the place of occurrence. Pws.1 and 2 are the persons who first found Abdul Kadir lying wounded. Their evidence and that of Pw. 49, the Assistant Surgeon who conducted the autopsy, clearly go to prove that Abdulkadir died of the injuries noted in the post mortem certificate, Ext. P(10) at about 9 o'clock on that night. There were six injuries on the body of the deceased. The second injury which was parallel to an incised wound noted as injury No.1 was a vertifical incised wound over the left temporal region about 5 inches long and one inch wide being deepest at its middle and front part and skin deep towards the anterior end. That injury incised the skull about 2 inches in the middle of the wound, cutting the meninges and cerebrum. Apart from other injuries, according to Pw. 49, this wound by itself was enough to cause the death of the deceased. Thus clearly a brutal murder was committed. That injury incised the skull about 2 inches in the middle of the wound, cutting the meninges and cerebrum. Apart from other injuries, according to Pw. 49, this wound by itself was enough to cause the death of the deceased. Thus clearly a brutal murder was committed. What is urged on behalf of the appellant is that in view of several missing links in the chain of circumstances placed before court by the prosecution the learned Sessions Judge was wrong in holding that the guilt of the accused had been proved. It is urged that no reliance can be placed upon the alleged extra judicial confession to Pws. 22 to 24 and the judicial confession filed as Ext. P(19). 4. First of all, we will consider the evidence regarding the movements of the accused on the date of the occurrence and at the relevant time. It is an admitted case that the accused was residing in his house during that period. The first witness who deposes to seeing the accused on the evening of that day is Pw. 27, the ferry-man. He speaks to taking the accused across the river at about 5 P.M. on his way to his wife's house. Accused's wife examined as Pw. 28 deposes to his going to the house of her parents about that time and leaving it saying that he would procure medicinal pills. The ferry-man says that he took the accused back to the other side and that the accused said that he would be returning late in the night. After that Pw. 25 who is a neighbour of the accused sees him at about 7 PM. leaving the accused's house dressed in a black shirt. An hour later Pws. 20 and 21 being labourers employed in a Tile Factory saw him at Kakkeripadam while returning to their home at Karuvannoor. They also say that the accused was then wearing a black shirt an apart from an unbrella had a bag with him. Then Pw. 36, a fisherman, saw the accused at Moorkanat Bund near the place of occurrence. According to this witness also the shirt worn by the accused was a black one. Coming to the witnesses relied upon by the prosecution to prove the accused's movements after the occurrence, the parents and brother of the accused examined as Pws. Then Pw. 36, a fisherman, saw the accused at Moorkanat Bund near the place of occurrence. According to this witness also the shirt worn by the accused was a black one. Coming to the witnesses relied upon by the prosecution to prove the accused's movements after the occurrence, the parents and brother of the accused examined as Pws. 22, 23 and 24 deposed in the enquiry court that the accused went over to his house at about 10 P.M. or so but denied it in the Sessions Court where they were treated as hostile and the depositions in the Magistrate's Court marked and treated as a part of the evidence under S.288 of the Code of Criminal Procedure. Pw. 31, an Ayurvedic Physician, speaks to the accused having gone to him at about 10 P.M. that day saying that he wanted some medicine for his mother-in-law and that some pills were given. Then there is the evidence of Pw. 27 to the effect that the accused went and called him to ferry him across the river and that he did so somewhere about 10.30 P.M. Pw. 17 residing on the way to the house of the accused's parents-in-law after crossing the ferry states that the accused passed that way at about 10.30 P.M. Then there is the evidence of Pw. 28 to the effect that her husband returned to her house after 10 o'clock in the night with the pills. She is corroborated by Pw. 29, her father. The learned Sessions Judge has believed the evidence of these witnesses and relied upon them as going to prove the movements of the accused on that day. On behalf of the accused it is contended that all the independent witnesses are persons of low status who could easily be procured by the Police. The credibility of a witness does not depend upon his financial position. Nothing has been brought out to show why these persons who all belong to the locality should come and depose in this way when the crime attributed to the accused is of such a serious nature. There is no reason to reject the evidence of Pw. The credibility of a witness does not depend upon his financial position. Nothing has been brought out to show why these persons who all belong to the locality should come and depose in this way when the crime attributed to the accused is of such a serious nature. There is no reason to reject the evidence of Pw. 28 when she says that the accused was absent from her house between 5 P.M. till past 10 P.M. So nothing has been made out to induce us to think that the appreciation of the evidence of these witnesses on the point now under consideration by the learned Sessions Judge is in any way wrong. It is seen that the accused was very near the place of occurrence during the time when the occurrence is proved to have taken place. But as pointed out by the counsel for the accused that by itself is not sufficient to show that the accused was the author of the crime. What the aforesaid evidence goes to make out is that the accused had the opportunity to commit the crime in question. 5. Proceeding to consider other relevant evidence we find that a number of witnesses depose to his being dressed in a black shirt when they saw him that night. Pw. 44 is a textile shop-keeper of Mattannoor in Malabar District. His evidence is to the effect that that accused was employed in his shop from Medom 1129 M.E. till Mithunam of that year and that when he left his services he had a newly made black shirt identified as M.O. VIII. Nothing has been brought out in his cross-examination to question his credibility. Pw. 14, a resident of the same locality, also identifies the shirt as that of the accused. Thus the connection between the accused and the black shirt marked as M.O. VIII is made out. Then we come to one of the most important links in the prosecution case, namely, the recovery of M.O. VIII along with the chopper M.O. IX, bag M.O. XII and the piece of cloth M.O. XIV. Ext. P(5) is the mahazar regarding the recovery. It is stated there that these articles were found buried in the channel at the spot mentioned and were recovered on the basis of the information supplied by the accused. Ext. P(5) is the mahazar regarding the recovery. It is stated there that these articles were found buried in the channel at the spot mentioned and were recovered on the basis of the information supplied by the accused. The recovery was on 14th Augsut 1954 itself, the day on which the accused was arrested and after the recording of his confession. Ext. P(16) is the report submitted to the Magistrate requesting for remand to Police custody for the purpose of recovery after recording of the confession. Pw. 54 deposes to all this. Pws. 37,42 and 43 are persons who took out these articles from the channel bed. Pws. 46 and 50 are witnesses to the recovery. The counsel for the accused contended that there was an artificiality in the recovery and the evidence is not reliable. We are unable to see any reason to discredit these witnesses. The Police Officer might have asked one man to recover all the articles instead of the three but we do not see how his requisition of the services of three persons affect the evidence. Pws. 46 and 50 are obviously respectable persons. Hence the recovery of the black shirt, chopper and other articles is clearly made out. Nothing has been brought out to show that the recovery was not on the basis of information supplied by the accused himself. There is no reason to disbelieve Pw. 54 on that point. When this part of the prosecution evidence is accepted and when that is taken along with the evidence about the accused's movements on that day, we cannot but hold that the prosecution has established accused's connection with the crime in question. Burial of articles like a chopper and shirt can be explained only on the basis of the necessity to suppress the evidence regarding their possession. A guilty mind is clearly indicated in the person responsible for the same. 6. In the present case the learned Sessions Judge has further relied upon the evidence of Pws. 17 and 18 to the effect that the accused told them not to tell anybody about having seen him that night, on the extra judicial confession to Pws. 22, 23 and 24 and the confessional statement, Ext. P(19). Though there is some artificiality in the evidence of Pws. 17 and 18 to the effect that the accused told them not to tell anybody about having seen him that night, on the extra judicial confession to Pws. 22, 23 and 24 and the confessional statement, Ext. P(19). Though there is some artificiality in the evidence of Pws. 17 and 18 to the effect that the accused went to them several times and asked them not to divulge his movements, there is no ground to think that some such attempt was not made by the accused as pointed out by the Sessions Judge. It is not seen why Pw. 17, a sickly person, should otherwise depose so. As regards the evidence regarding the extra judicial confession made to the parents and brother they have denied it in the Sessions Court and we do not want to rely upon the same. Coming to the confession recorded by the Magistrate the reliability of the same is vehemently challenged by the counsel for the accused. First of all, it was contended that as the Magistrate who recorded it was not examined it is vitiated and has to be rejected on that ground itself. There is no force in this argument. With regard to the practice of examining Magistrates in such cases in Kashmira Singh v. State of Madhya Pradesh AIR 1952 SC Reports 536 at page 538 it is observed as follows: "There is one argument about this confession advanced on behalf of the appellant with which we have to deal. The prosecution was criticised for not calling the Magistrate who recorded the confession as a witness. We wish to endorse the remarks of their Lordships of the Privy Council in Nazir Ahmad v. King Emperor (AIR 1936 PC 253) regarding the undesirability of such a practice. In our opinion, the Magistrate was rightly not called and it would have been improper and undesirable for the prosecution to have acted otherwise". So the evidence regarding confession cannot be rejected because of his non-examination. Then it was urged that Ext. P(19) does not satisfy the provisions of S.164 of the Code of Criminal Procedure regarding the recording of a confession and that it was further vitiated on the ground that soon after the recording the accused was remanded back to the custody of the police for the alleged purpose of recovery of incriminating materials. Then it was urged that Ext. P(19) does not satisfy the provisions of S.164 of the Code of Criminal Procedure regarding the recording of a confession and that it was further vitiated on the ground that soon after the recording the accused was remanded back to the custody of the police for the alleged purpose of recovery of incriminating materials. Regarding the form of the confession we are satisfied that it substantially complies with the requirements of law. About sending back the accused again to police custody certainly it is an undesirable practice and cannot but make the court look upon the confesison with suspicion. But apart from lessening the evidentiary value of the confession it does not make it inadmissible. In the present case there is material corroboration regarding the movements of the accused as given by him in his confession and about the burying of the incriminating articles. So we will be perfeclty justified in relying upon the confession as further supporting the conclusions arrived at on the basis of circumstantial evidence. We may also mention that the fact that the accused had reason to have a grudge against the deceased is also proved by the prosecution. In Deo Nandan v. State of Bihar AIR 1955 SC 801, there was only circumstantial evidence to support the prosecution case, there being no recovery of any incriminating article on the basis of information supplied by the accused or any sort of confession by him. In finding the accused guilty, at page 806, it is observed as follows: "It is 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 cases like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant 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". Here the statement of the accused in the Sessions Court is to the effect that during the relevant time on that day he was in his wife's house and nowhere near the place of occurrence. This has been belied by the evidence of witnesses, dear and near to him, his wife and her father. We are therefore of opinion, that this is a case which satisfies the standard requisite for conviction on the basis of circumstantial evidence. 7. In the result, we confirm the conviction for murder and the sentence of death passed therefor by the lower court. The reference is answered accordingly and the accused's appeal is dismissed.