JUDGMENT P. Govinda Menon, J. 1. The appellant Cheeranthodika Moideen, the first accused in Sessions Case 2 of 1964 has been convicted by the learned Sessions Judge of Kozhikode for an offence under S.302, I. P.C., for the murder of his stepmother, Pathumma and has been sentenced to the extreme penalty of law. He has also been convicted under S.201, I. P. C. and sentenced to rigorous imprisonment for 5 years. The appellant has filed the appeal against his conviction. The proceedings under S.374, Cr. P. C., for confirmation of the sentence of death is also before us. 2. Shortly stated, the facts are as follows: The second accused Abdul Kareem who has been acquitted is the direct brother of the appellant, first accused. P. W. 1 is their father. The mother of the accused died about 8 years before the occurrence. A few years after her death, P.W. 1. married the deceased and they were living together in his house in Mundainkara in Edvanna amsom. P. W. 1. had no children by the deceased. By his first wife P.W. 1 had six children and P.W. 1 had divided an item of property belonging to his first wife among the children retaining a small portion for him. The first accused had recently put up a house in the portion of the property allotted to him, but as the construction was not completed, he was staying with his father and stepmother. His wife was living in her own house. The second accused had no separate house and he was also living with his father assisting him in his work of storing water in the mosque. Thus the only residents in P. W. 1's house at the material time were the deceased, P. W. 1 and the two accused. P. W. 1 is a Molla and is a teacher in the Madrassa attached to the local Jummayath mosque. Usually he leaves his house at seven in the morning and returns home by about 1 p. m. from the Madrassa. It is the prosecution case that the relationship between the deceased and the two accused were not very cordial on account of certain petty quarrels between them. P. W. 1 had threatened that he would partition his house property and this information had been conveyed to the first accused. It is the prosecution case that the relationship between the deceased and the two accused were not very cordial on account of certain petty quarrels between them. P. W. 1 had threatened that he would partition his house property and this information had been conveyed to the first accused. The accused were feeling that the deceased was responsible for this attitude of their father. On the evening of Wednesday the day previous to the date of occurrence, the deceased did not cook food for the night. When the first accused returned home after work the deceased and P. W. 1 found fault with him and scolded him for not giving money for purchasing rice. The first accused, thereupon sent the second accused and got rice from P. W. 7's shop and after the rice was brought, P.W. 1 asked the deceased to prepare food and food was prepared and served. 3. The next day morning as usual P. W. 1 took his tea and left for the Madrassa at 7 O' Clock. When he left the house the deceased and the two accused were in the house. When P. W. 1 returned at 1 p. m. the second accused alone was in the house and he informed P. W. 1 that the deceased was missing and was not found in spite of enquiries made in the neighbourhood. On entering inside the house, P. W. 1 found that her box was kept open and her jewels and clothes were found missing. Thinking that the deceased might have gone to her house, he sent the second accused to go to her house and see whether she was there. Shortly thereafter the first accused reached the house and knowing about the absence of the deceased himself, and the neighbours again made a search. In the evening the second accused returned with P. W. 4 the brother of the deceased. After searching in vain till night he returned. 4. The next day P. W. 4 went to the Nilambur police station and gave a written complaint Ext. P. 1 expressing his suspicion about the two accused. P. W. 13 the Station Writer registered a case. As the Sub Inspector was not in the station, P. W. 14 the head constable who was then in charge of the station took up the investigation and proceeded to the scene. P. 1 expressing his suspicion about the two accused. P. W. 13 the Station Writer registered a case. As the Sub Inspector was not in the station, P. W. 14 the head constable who was then in charge of the station took up the investigation and proceeded to the scene. Next day morning search was continued by P. W. 14. The two accused, P. W's 8 and 10 and others were in the search party. While they were searching in the cashew garden, the second accused and P. W. 8 were seen talking something in secret and P. W. 8 passed on the information he got to P. W. 14. P. W. 14 then arrested the first accused and questioned him and recorded his statement. The admissible portion of his statement has been separately marked as Exts. P. 16 to P. 20. In pursuance of the information thus furnished by the accused the dead body was recovered. Intimation was at once sent to the Sub Inspector P. W. 15 and he came to the place. He held the inquest and after the inquest was over the first accused took P. W. 15 and party to the various places mentioned by him and the chopper M. O. 1, his thorthu M. O. No. 19, the jewels worn by the deceased M. Os. 6 to 9 and other jewels kept in the box, the bunch of keys and clothes of the deceased were recovered from the places mentioned by the accused and pointed out by him. P. W. 15 then went to P. W. 1's house and prepared the observation mahazar noting the places where blood marks were noticed. By that time the Circle Inspector also joined and after questioning some more witnesses and completing the investigation, the two accused were charge sheeted. 5. The accused were not questioned in the committing Magistrate's court. When questioned in the Sessions Court, the first accused denied the commission of the offence and stated that there was no enmity between him and the deceased as alleged. He denied that he had taken empty gunny bags from the shopkeeper P. W. 7. He characterised the evidence of P. W. 3 as wholly false. He admitted the recovery of M. Os. 1 and 19 from P. W. 9's house, but denied giving any information leading to the discovery of the dead body or the jewels. He denied that he had taken empty gunny bags from the shopkeeper P. W. 7. He characterised the evidence of P. W. 3 as wholly false. He admitted the recovery of M. Os. 1 and 19 from P. W. 9's house, but denied giving any information leading to the discovery of the dead body or the jewels. He alleged enmity with P. W. 10 and stated that the witnesses were giving false evidence at his instance. 6. That Pathumma died of violence and that her dead body was recovered from the Kavumgumchola Mala is amply proved and is in fact not disputed. P. Ws. 1, 2 and 4 who are the most competent persons who could have identified the dead body have sworn that they could easily identify the dead body as that of Pathumma. P. W. 1 has also identified her Kuppayam M. O. 2 which she was wearing on the morning when she met with her death. Even the first accused has admitted that Pathumma's dead body was found in the gunny bags at Kavumgumchola. 7. P. W. 6 Dr. Cheriyath the medical officer in charge of the Nilambur hospital who conducted the autopsy on the severed parts of the dead body has described the injuries in the Post mortem certificate Ext. P. 5. They were: (1) Incised wound, widely gaping on the front of neck, all the soft tissues including carotid arteries cut through, cervical spine cut through leaving posterior cervical muscle in tact; (2) Incised wound with margins at irregular levels dividing the trunk completely into two parts through the lower part of the abdomen; (3) An incise wound dividing the left thigh into two pieces at the level 2" above the knee joint (4) A similar incised wound dividing the right limb into two pieces; (5) Both external ears are missing, each stump bearing incised wounds. On dissection intestines were seen severed at several places, the bladder was severed, the spine was severed in the cervical and lumbar regions. Bones (femurs) severed at their lower ends and the liver, spleen, kidneys and brain were pale. On dissection intestines were seen severed at several places, the bladder was severed, the spine was severed in the cervical and lumbar regions. Bones (femurs) severed at their lower ends and the liver, spleen, kidneys and brain were pale. The doctor has stated that injury No. 1 was an ante mortem injury basing his opinion on two grounds: (1) that the injury was widely gaping, and (2) the vital organs namely the liver, spleen, kidneys and brain were more pale than in the case of natural death thereby indicating considerable drain of blood before death and it could have occurrence as the carotid artery had been cut through. P.W. 12 Dr. Jacob the Associate Professor of Surgery in the Medical College at Kozhikode who was examined as an expert to check up the findings of P. W. 6, has also concurred in the opinion given by P. W. 6, He has also expressed his opinion that injury No. 1 in the post mortem certificate Ext. P. 5 was an ante mortem injury and he has given his reasons more or less similar to the reasons given by P. W. 6. Both the doctors have stated that injury No. 1 is a necessarily fatal injury and death would have been almost instantaneous, say, within 2 or 3 minutes of the receipt of the injury. On this evidence we can safely come to the conclusion that death was caused by inflicting a necessarily fatal out injury on the neck of the deceased. 8. It is also clear from the evidence that the murder must have been committed in P. W. 1's house itself. The evidence of the investigating officers and of P. W. 10 who was present at the time the house was searched, show that blood stains were found in P. W. 1's house on the northern wall near the kitchen, the wall near the door way leading to the corridor from the kitchen, the frame of that door, on the walls of the eastern room and on P. W. 1's old banian which was lying in the room. The chemical examiner's report Ext. P. 4 shows that it was stained with human blood. The chemical examiner's report Ext. P. 4 shows that it was stained with human blood. It was also noticed that the floor near the kitchen side and near the door way of the eastern room were recently paved with cowdung and charcoal power, which must have been used only to wipe out something from the floor. P. W. 1 has also given evidence that everything was normal when he left for the Madrassa in the morning but when he came back in the afternoon he found that Pathumma was not in the house and her ornaments and clothes which she had kept in her box were missing. From those circumstances there can be no room for doubt that the murder must have taken place inside the house sometime after P. W. 1 left at 7 a. m. and before he returned to his house at 1 p. m. 9. Now the most important question for decision is whether the prosecution has succeeded in proving that it was the first accused and first accused alone who must have committed the murder. There are no eye witnesses to the occurrence and the case depends solely on circumstantial evidence. It is well settled that in a case depending upon circumstantial evidence the circumstances must in the first place be reliably proved, that the facts so proved should be consistent only with the hypothesis of the guilt of the accused and the chain of facts should be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused or in other words it must be such as to show that in all human probability the act must have been done by the accused and accused alone. The prosecution has relied on certain circumstances to prove the case: (1) that the deceased was seen last alive in the company of the first accused; (2) that the relationship between the first accused and the deceased was not cordial and he had a motive to murder her; (3) that between 8.30 and 10 a. m. on that day P. W. 3 had seen the first accused taking two trips to the Kavumgumchola Mala with a loaded gunny bag and returning without the load; (4) that when questioned by the head constable the first accused furnished certain information on the basis of which the gunny bags containing the dead body and jewels belonging to the deceased and ear rings worn by the deceased at the time of her death were recovered from the places where they were secreted. The learned Sessions Judge accepted the above circumstances as properly proved and as the accused was not in a position to give any satisfactory explanation as to how he came by the ornaments worn by the deceased at the time of her death, found him guilty of the offence of murder. The learned Judge held that there was no sufficient evidence to bring home the guilt to the second accused and acquitted him of both the charges. 10. We will take up each of the items of evidence separately and see how far, from these circumstances it could safely be inferred that the appellant was the person who had committed the murder. First we will take up the question of motive. 10. We will take up each of the items of evidence separately and see how far, from these circumstances it could safely be inferred that the appellant was the person who had committed the murder. First we will take up the question of motive. P. W. 1 the father has deposed that the two accused were living with him and the deceased, that there used to be petty quarrels between the first accused and the deceased, because the first accused was very irregular in the matter of paying money for purchasing rice, that he had told the deceased that he would not be able to maintain and feed the accused if they do not contribute for their expenses, that the deceased had conveyed the information to the accused, that a week before the occurrence he had told the deceased that he would partition away his properties, that about three days prior to the incident the first accused asked him whether he had mentioned to the deceased about his intention to partition the properties and his telling the first accused that if he did not work properly and pay money for expenses he would have no other go but to partition the house property. In cross examination however he stated that there was nothing serious and it was only the usual ill feeling that exists between the stepmother and the children by the first wife and in spite of this ill feeling the accused continued to live with them. P. W. 1 has also given evidence as to what had transpired the previous day -- the deceased not cooking food because there was no rice in the house and the first accused sending the second accused and getting the rice and the deceased preparing kanji and serving them. P. W. 9 the sister of the accused has given evidence that accused 1 and 2 had told her that even though there was a cow in the house the deceased used to keep the milk in her box and would not give it to them. Accused 1 and 2 had also told her that the deceased was not behaving properly towards them. Likewise P. W. 4 the brother of the deceased has deposed that he had heard the deceased saying that the accused were not moving well with her. Accused 1 and 2 had also told her that the deceased was not behaving properly towards them. Likewise P. W. 4 the brother of the deceased has deposed that he had heard the deceased saying that the accused were not moving well with her. Whether these circumstances afford a sufficient motive for either of the accused to have taken the extreme step of murdering her, one thing is clear that if the first accused had a motive to do away with the deceased the same circumstances would furnish a motive for the second accused also to kill her. In fact the case of the prosecution was that the murder was committed in furtherance of the common intention of both the accused. 11. Another circumstance referred to by the learned Judge is that the deceased was seen last alive in the company of the first accused. We have carefully gone through the relevant evidence and we do not think that this assumption is correct. P. W. 1 has stated that on that day morning as usual he took tea and left for the Madrassa at 7 a. m. and as he was leaving, both the accused were taking tea. Later he stated that as he actually left the house for the Madrassa the deceased and the second accused were the only persons who were present in the house which would show that the first accused must have left the house prior to P. W. 1 leaving the house. When P. W. 2 came to the house he found the front door shut and when he called out, the second accused came from inside the house and gave him water. He did not see the first accused in the house. P.W. 16 the Imam of the mosque has only stated that as usual at 7 a. m. he had gone to the Madrassa and when he returned to the mosque at 8. 40 a. m. he found the second accused drawing and storing water in the mosque. Apart from the statement of the second accused there is no other evidence when exactly the second accused reached the mosque. It cannot, therefore, be stated that the deceased was seen last alive in the company of the first accused. 12. 40 a. m. he found the second accused drawing and storing water in the mosque. Apart from the statement of the second accused there is no other evidence when exactly the second accused reached the mosque. It cannot, therefore, be stated that the deceased was seen last alive in the company of the first accused. 12. The next circumstance is the recovery of the chopper M. O. 1 from P. W. 9's house which fact is admitted by the accused himself, but that does not advance the prosecution case as P. W. 9 has stated that the first accused used to keep his implements of work in her house on prior occasions also and the two articles recovered from her house M. O.s. 1 and 19 contained no stains of blood. The learned Judge himself has rightly held that no significance need be attached to the circumstance of the recovery of M. Os. 1 and 19 from P. W. 9's house. 13. Then we come to the evidence of P. W. 3. His house is about two furlongs to the west of P. W. 1's house. He owns a paddy flat near Kavumgumchola Mala. He has deposed that on that day morning when he was in his paddy field supervising cultivation at about 8-30 a. m. he saw the first accused going with a gunny bag on his head towards Kavumgumchola Mala and half an hour later returning the same way, but without the gunny bags. Again he found the first accused taking another trip with another loaded gunny bag and going towards the same Mala and returning without the load. It is true that the accused has denied this evidence but nothing has been elicited in the cross examination of the witness to throw any the slightest doubt on the truth of his testimony. Suggestion has been made that the witness bore ill will towards the first accused as a teak tree belonging to the witness had been cut by the first accused, but the suggestion has been denied by P. W. 3. Again suggestion was made that P. W. 3 being an old man of 65 could not have seen properly and identified the accused as the person who was carrying the gunny bags but the learned Judge has observed that he had tested the eye sight of the witness and his vision is quite normal. Again suggestion was made that P. W. 3 being an old man of 65 could not have seen properly and identified the accused as the person who was carrying the gunny bags but the learned Judge has observed that he had tested the eye sight of the witness and his vision is quite normal. Having scrutinised the evidence of P. W. 3 with care we find no reason to distrust his testimony. Therefore it is clearly proved that on the day when the deceased was found missing the first accused had carried two gunny bags towards Kavumgumchola Mala to which place the next day the first accused took the head constable and pointed out the bags which contained Pathumma's dead body. 14. The next item of evidence is the S.27 statement of the first accused and the consequent discoveries. As stated before P. W. 14 arrested the first accused and questioned him, and recorded his statement. The admissible portions of the statement are as follows: (1) I shall point out the parakkettu where I have placed the gunny bags; (ii) I have placed the aruvalkathi under the cot in the southern room of my sister's house and the thorthu on the clothes line in that room; (iii) I have hurried the ear ornaments bundled in a dry plantain leaf under the plantain cluster to the east of the house I am constructing; (iv) I have hurried some other ornaments and bunch of keys in the north eastern corner of the paramba in which my sister lives and (v) I have placed the clothes bundle in the crevice of the rock in the cashew garden. They are marked as Exts. P. 16 to P. 20. The first accused then took the head constable P. W. 14 to Kavumgumchola and in the hollow between the rocks he pointed out three gunny bags, two bags loaded and the third one spread beneath the other covering two human legs. The loaded gunny bags were untied and parts of a human body with both the ears missing were found. A mahazar Ext. P. 6 was prepared and P. W. 10 who was present with others and witnessed the recovery has attested the mahazar. The loaded gunny bags were untied and parts of a human body with both the ears missing were found. A mahazar Ext. P. 6 was prepared and P. W. 10 who was present with others and witnessed the recovery has attested the mahazar. Then the Sub Inspector came and after finishing the inquest the first accused took the Sub Inspector and party towards his newly constructed house and from underneath a plantain cluster about 2 yards northeast of the house he took out and produced M. Os. 6 to 9, identified as the ear ornaments worn by the deceased at the time when she was murdered. After that the accused took the Sub Inspector to the north eastern corner of the same paramba and took out certain other ornaments and a bunch of keys M. Os. 10 to 13 and they were also taken into custody under a list Ext. P. 10 attested by P. W. 10. After that the first accused took the Sub Inspector and party to the cashew garden to the north of P. W. 1's house and took out some clothes and a piece of soap M. O. 14 series from where they were hidden. The attesting witness P. W. 10, P. W. 14 the head constable and P. W. 15 the Sub Inspector have given evidence about all these recoveries. The accused no doubt has denied that he had given any statement resulting in the discovery of the articles but there is no reason to doubt the evidence of the head constable and the statement so made is admissible in evidence under S.27 of the Evidence Act. The truth of these statements are guaranteed by the consequent discoveries of the articles. None of the persons knew where the dead body was inspite of vigorous search for two days and nobody knew where the ornaments were secreted. Nobody was interested in cooking up a false statement or giving false evidence against the appellant. There was some suggestion of enmity against P. W. 10 but having gone through the evidence of P. W. s. 10 and 14 we find no grounds to doubt their evidence. 15. There can be little doubt about the identity of the ornaments. P. W. 1 has identified the ear ornaments and the other ornaments and the clothes as belonging to the deceased. The deceased was wearing the ear ornaments M. Os. 15. There can be little doubt about the identity of the ornaments. P. W. 1 has identified the ear ornaments and the other ornaments and the clothes as belonging to the deceased. The deceased was wearing the ear ornaments M. Os. 6 to 9 but the other ornaments were kept in the box. The ears were found cut off and on chemical analysis the Kathilas M. O. 8 series were found to contain patches of human blood. When questioned on the evidence that M. Os. 6 to 9 were the ear ornaments of the deceased and that she was wearing them on that day morning, the first accused stated that it was a fact that she was wearing the ear ornaments, but he stated that he cannot say whether the material objects in court were the identical ornaments worn by her. 16. The prosecution has thus proved that the deceased was wearing M. Os. 6 to 9 in her ears when she was murdered, that she had certain other ornaments in her box which was also found missing and all these jewels had been traced to the possession of the first accused. The question is whether in the absence of any explanation regarding the possession of these ornaments particularly M. Os. 6 to 9, it could be inferred that the accused must have committed the murder also. Learned Judge relying on two decisions of the Supreme Court Wasim Khan v. State of U.P. AIR 1956 SC 400 and Sundar Lal v. State of M.P. AIR 1954 SC 28 came to the conclusion that from the possession of the articles it could safely be assumed that he was himself the murderer. In the case in AIR 1956 SC 400 (cited supra) the facts were that the deceased a shopkeeper of Jarval who was travelling with his goods had engaged the accused's bullock cart from the railway station to his village. Neither the deceased nor the goods reached the destination. He was not seen alive and later was found murdered. Three days after the body was discovered, the police opened the accused's 'Khoturi' with the key given by him and recovered from there the goods which were identified as those belonging to the deceased. On the appellant's own statement he and the deceased were alone in the cart after the two other persons had got off on the way. Three days after the body was discovered, the police opened the accused's 'Khoturi' with the key given by him and recovered from there the goods which were identified as those belonging to the deceased. On the appellant's own statement he and the deceased were alone in the cart after the two other persons had got off on the way. Thereafter the deceased was never seen alive and was found murdered. It was held that: "recent and unexplained possession of the stolen property while it would be presumptive evidence against a person 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 consciousness of guilt point equally to the conclusion that he was guilty, as well of murder as of robbery." But it must be remembered that in this case the deceased was seen last alive with the accused and the recovery unerringly would point to the conclusion that the accused was responsible for the murder also. In the other case AIR 1954 SC 28 (cited supra) also there was only the accused with the deceased prior to his murder. The deceased was last seen alive with him. Out of the two items of jewellery which were identified as those habitually worn by the deceased one was pledged by the accused on the same day as the murder while the other was sold by him to a goldsmith the next morning. The accused himself took the police to those persons from whom the ornaments were recovered along with documents regarding the pledge and sale by the accused. Under such circumstances their Lordships held: "as the ornaments were established to be the ornaments worn by the deceased and the accused was not in a position to give any satisfactory explanation as to how he came to be in possession of the same on the very same day on which the alleged murder was committed, the circumstantial evidence was sufficient to hold the accused responsible for the murder of the deceased." We might now refer to another case in Sanwat Khan v. State of Rajasthan AIR 1956 SC 54 . In that case a rich mahant of a temple and his servant were found murdered in the temple and some days later jewels were recovered from the two appellants who had burried them. In that case a rich mahant of a temple and his servant were found murdered in the temple and some days later jewels were recovered from the two appellants who had burried them. The following exposition of the law by their Lordships is of great significance: "In our judgment, Beaumont C. J. and Sen J. in Bhikha Gober v. Emperor AIR 1943 Bom. 458 rightly held that the mere fact that an accused produced shortly after the murder, ornaments which were on the murdered person, is not enough to justify the inference that the accused must have committed murder. There must be some further material to connect the accused with the murder in order to hold him guilty of that offence. ......... In our judgment, no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where however the only evidence against an accused person is the recovery of stolen property, and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof." We may also refer to an early case in Singaram v. State AIR 1954 Mad. 152 where after a discussion of the entire case law Govinda Menon and Basheer Ahmed, JJ, observed: "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 S.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. 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 yet another recent decision of the Madras High Court in the case in In Re: Thangaswami AIR 1963 Mad. 476 Ramaswami and Ananthanarayanan, JJ. stated: "The inference or presumption of guilt, upon the main charge of murder can be safely drawn, where the accused is in unexplained possession of jewels or articles of the victim after the crime and where in addition there is some evidence at least, connecting the movements of the accused with those of the victim, either before or after the crime and in some manner or another, establishing a nexus between the accused and the offence. The mere unexplained possession or production of the jewels of the victim by the accused may not constitute a safe basis for a conviction upon a charge of murder, when that is the only bare circumstance proved in evidence." Here what we find is that both accused 1 and 2 had a plausible motive to commit the murder. The deceased was not seen last alive in the company of the first accused. If the evidence of P. W. 1 were to be accepted, the first accused had left the house even prior to his leaving the house and when he left the house the second accused alone was in the house with the deceased. There is no evidence as to when the first accused came back. The murder could, therefore, well have been committed by the second accused and the first accused knowing about the murder and to shield his own brother would have caused the evidence to disappear by depositing the dead body in Kavumgumchola Mala and secreting the jewels and other articles belonging to the deceased. Where such a possibility cannot altogether be ruled out and where the real murderer could have delivered the jewels and the articles to the appellant shortly after the crime, the mere recovery of jewels alone would not be sufficient to bring home the offence of murder. Where such a possibility cannot altogether be ruled out and where the real murderer could have delivered the jewels and the articles to the appellant shortly after the crime, the mere recovery of jewels alone would not be sufficient to bring home the offence of murder. In the absence of any evidence whatever of the circumstances in which the murder took place, it could easily be envisaged that the appellant at some time or other saying that the woman was murdered, removed the jewels or received them from the person who had actually committed the murder and secreted the dead body and the jewels in order to screen the murderer. There is no evidence either direct or circumstantial that the theft or robbery and the murder formed parts of one and the same transaction. The learned Judge has proceeded on the basis that the deceased was seen last alive with the first accused which would have been a strong circumstance against the appellant, but as we have pointed out the assumption is not correct. The rule of circumstantial evidence has inevitably to satisfy the inexorable test that the evidence must be wholly inconsistent with the innocence of the accused and unmistakably point to the guilt of the accused. Suspicion there might be, that the appellant himself would have murdered the woman, but mere suspicion cannot be a substitute for proof. We are therefore, constrained to acquit the appellant of the main offence of murder. It may be that a brutal murder goes unpunished, but it is better to err on the safe side and hold the appellant not guilty of the offence of murder but is guilty only of the offence under S.201, I. P. C. As far as the offence under S.201, I. P. C. is concerned the evidence is clear and convincing and we have no hesitation in confirming the conviction under S.201, I. P. C. In the result we set aside the conviction of the appellant under S.302, I. P. C. and the sentence of death passed on him. His conviction and sentence under S.201, I. P. C., are confirmed. The reference is rejected