AHMED ALI KHAN, J. ( 1 ) THE appellants and another Mansa Mera (accused 1 to 3) were prosecuted before the Sessions Judge, South Kanara, for the murder of Krishna rai, his wife Laxmi, and their son Gangadhara, for voluntarily causing hurt in committing robbery, abetment in the commission of the offences of robbery and murder, and for dishonestly receiving stolen property. These offences were committed on the night between 4 and 5 November, 1963, in the village of Nelliyadi, Puttur Taluk, South Kanara. Charges 1, 2 and 3 spoke of the murder of Krishna Rai, Laxmi and Gangadhara respectively by accused 1 and 2 in furtherence of the common intention, punishable under S. 302 read with S. 34 of the Penal Code. Charge No. 4 was against Accused Nos. 1 and 2 for voluntarily causing hurt in committing robbery, punishable under S. 394. Charge No. 5 spoke of abetment in voluntarily causing hurt in committing robbery by accused 1 and 2 (appellants) under S. 394 read with S. 109. The sixth charge related to the offence under S. 302 read with S. 109, IPC. , and it was for the abetment of the murders of Krishna Rai, Laxmi and Gangadharan by accused 1 aad 2. The seventh charge was for the offence under S. 411, IPC. , for dishonestly receiving stolen property knowing them to be stolen. The fifth, sixth and seventh charges were against accused No. 3. The Sessions judge convicted accused 1 and 2 for the murder of Krishna Rai, Laxmi and gangadhar and sentenced each of them to death under S. 302 read with s. 34 of the Penal Code, subject to confirmation by this Court. They were also convicted for the offence of voluntarily causing hurt in committing robbery, under charge No. 4, and were each sentenced to five years R. I. On the remaining charges, namely, charges 5, 6 and 7 which were against accused 3 the Sessions Judge recorded acquittal under all those charges. ( 2 ) THE facts of this case are within a short compass. One Krishna Rai was a resident of Nelliyadi Village in Puttur Taluk. He was living in a locality called Nadugudde in the said village, with his wife Laxmi and their three children, Gangadhara who was aged seven was their eldest son the second son was aged three years and their last child was six months old. One Krishna Rai was a resident of Nelliyadi Village in Puttur Taluk. He was living in a locality called Nadugudde in the said village, with his wife Laxmi and their three children, Gangadhara who was aged seven was their eldest son the second son was aged three years and their last child was six months old. It was said that Krishna Rai was in affluent circumstances. Accused 1 and 2 were also residents of the same locality. Accused no. 1 was running a coffee hotel situated about one and half furlongs from the house of Krishna Rai. It was said that accused 1 and Krishna Rai were friends and that their friendship had developed into an intimacy. Whenever Krishna Rai had to be away from his house, he used to ask accused no. 1 to sleep in his house till his return, obviously to look after his family. Accused No. 1, although he was running a hotel, was not above want. It was said that he often used to borrow small loans from Krishna rai. It is in the evidence that Krishna Rai had married late in life. His marriage with Laxmi had taken place in the year 1956 and he had three children all of them sons. ( 3 ) IT was the prosecution case that about fifteen days prior to the incident the deceased Krishna Rai had to be away from his house on account of some work and he, as usual, requested accused No. 1 to sleep in his house till his return. Accused No. l accordingly went to the house of Krishna rai and slept. During the night when everybody in the household was asleep, it appears, a devil got into the head of accused No. l and he tried to molest Laxmi. Laxmi, not only took objection and resented the behaviour of accused No. 1 but turned him out of the house immediately. ( 4 ) AFTER the return of Krishna Rai, Laxmi apprised her husband about the attempt made by accused No. 1. Naturally the behaviour of accused No. 1 was not liked by Krishna Rai and he thought out a plan of revenge. He invited accused No. 1 one day to his house and asked to go to the kitchen and have coffee. Naturally the behaviour of accused No. 1 was not liked by Krishna Rai and he thought out a plan of revenge. He invited accused No. 1 one day to his house and asked to go to the kitchen and have coffee. Accused No. 1, unsuspectingly, entered the kitchen, and there he was met by Laxmi with a broom-stick in her hand who smote accustd No. 1 with it saying 'this is the coffee, take it'. Accused No. 1 then came out and Krishna Rai who was waiting for him with a chappal in his hand, beat him saying that that was the reward for his faithlessness. It was the prosecution case that accused No. 1 was very much vexed with this insult and he took it to his heart and became bent on a revenge. He therefore thought out a plan for doing away with Krishna Rai and laxmi and also of robbing their valuables. In order to accomplish his object, he sought the assistance of accused No. 2 who used to go to his hotel frequently to take coffee. It was said that accused No. 2 was also a needy man who used to borrow money frequently from accused No. 1 and others. Accused No. 1 approached accused No. 2 and told him what he had in mind, and both of them decided to visit the house of Krisha Rai and Laxmi during night time while they were asleep, do away with them, and take away the cash and jewellery which they possessed. It was said that accused no. 2 approved of the plan suggested by accused No. 1. ( 5 ) IT was further the case of the prosecution that thereafter accused No. 1 procured a 'bala Katti' (MOJ) which is referred to as a butcher's knife. On the appointed night, namely, on the night intervening November 4 and 5, 1963, accused 1. accompanied by accused 2, who was armed with a big pen knife, proceeded to the house of Krishna Rai. While going there, they met Mansa Mera (accused No 3) on the way and they took him also along with them. ( 6 ) WHEN they reached the house of the deceased, it was dead of night. Accused 1 and 2 made accused No. 3 stand near the compound gate on guard and accused Nos. 1 and 2 entered the house of Krishna Rai. ( 6 ) WHEN they reached the house of the deceased, it was dead of night. Accused 1 and 2 made accused No. 3 stand near the compound gate on guard and accused Nos. 1 and 2 entered the house of Krishna Rai. It is said that they killed Krishna Rai who was sleeping in the verandah of the house and then they killed Laxmi who had come to rescue her husband. Thereafter they opened an almirah with the keys which they had taken from the deceased Krishna Rai, burgled the ornaments and cash and were going out when they heard the cry of Ganradhara Then a thought flashed in their mind that it was not safe to leave the boy alive, because he knew the identity of accused No. 1 and he would leak out the information of the unlawful acts So both accused 1 and 2 went back and they found gangadhara sitting on a plank. They took the boy inside a room and slaughtered him there. Thereafter all the three accused decamped with the loot. ( 7 ) ON this, the suspicion of the police turned against accused No. 1 and it was strengthened when the police found him absconding. The police searched the house of accused No. 1 on the night of November 7 itself and recovered a torch MO. 41 from the house of accused No. 1 which had blood stains on its switch button. It was seized in the presence of Pannchayatdars under a mahazar. ( 8 ) ON the morning of November 8, 1963, on the information of one abdulla Beri a trunk was recovered from a bamboo cluster in the forest at a distance of seventy five yards from Balya Road on the eastern direction and it was seized under a mahazar (Ex. P-47 ). But the recovery of this article is not material in this case. ( 9 ) ON November 9, 1963. at about 3-40 p. m. , PW. 46, police constable, produced accused No. 1 before the Circle inspector, whom he arrested at 4 p. m. and his person was searched A blood stained lungi, MO. 61 which was on the person of accused 1 was seized by the Circle Inspector under a mahazar in the presence of panchayatadars. at about 3-40 p. m. , PW. 46, police constable, produced accused No. 1 before the Circle inspector, whom he arrested at 4 p. m. and his person was searched A blood stained lungi, MO. 61 which was on the person of accused 1 was seized by the Circle Inspector under a mahazar in the presence of panchayatadars. During the search of accused No. 1 the Circle Inspector also found that he had a cut injury on his right hand palm. ( 10 ) ACCUSED No. 1 volunteered to point out the articles hidden by him. The statement of accused No 1 was recorded bv the Circle Inspector in the presence of Panchayatdars which was marked as Ext. P-28. He led the police and the Panchayatdars to a place called Volachilu belonging to one ismail Beri and recovered a bundle which was wrapped with a calendar sheet, from s bush, which was about one and a quarter furlongs from the hotel of accused No. 1. The bundle recovered consisted of articles of jewellery (MOs. 3 to 8 ). These articles were seized by the Circle Inspector under a mahazar before the Panchayatadars. ( 11 ) AFTER recovery of the above articles, accused No. 1 led the Panchayatadars and the police to a field about a furlong awav from Nadugadda and recovered a Balnkathi (MO. 1) from a Mundevu bush where it had been concealed It had blood stains on it and its point was missing. MO. 1 was also seized under a Mahazar by the police in the presence of Panchayatadars. From November 9, events moved fast. After the arrest of accused no. 1, through him the police came to know of the complicity of accused numbers 2 and 3 in the crime. After eliciting this information from accused no. 1 the police, on the same night, at about 9-30 p. m. searched the house of accused No. 2. During the search a trunk was found which was locked. It was opened and its contents were seized by the police in the presence of Panchayatadars, under a mahazar. ( 12 ) ON the basis of the information which they obtained from accused no. 1, the police began their hunt for accused Nos. 2 and 3. On November 12, 1963. police constable PW. It was opened and its contents were seized by the police in the presence of Panchayatadars, under a mahazar. ( 12 ) ON the basis of the information which they obtained from accused no. 1, the police began their hunt for accused Nos. 2 and 3. On November 12, 1963. police constable PW. 45 produced accused No. 3 before the Circle inspector of Police at Nadugadde at 5-30 p. m. whom he had traced at kakkemajalu in Ballya village. A khaki trouser and banian which he was wearing were seized under a mahazar (Ext. P-49 ). appelaccused No. 3 volunteered a statement after which he led the police and the Panch'ayatadars to a place called Ulithottu and pointed out some records and clothes which were kept there by him and all those articles, were seized by the police. ( 13 ) IN spite of the efforts of the police accused No. 2 could not be traced till November 25, 1963. The Circle Inspector of Police got information that accused No. 2 was hiding at his father-in-law's place in a neighbour's house. The Circle Inspector surprised him when he was sleeping in the house of one Karga Gowda at Rekhya (a neighbour of accused 2's father-in-law) at about 4 a. m. on November 25, 1963, and arrested him. ( 14 ) AFTER his arrest, the person of accused No. 2 was searched in the presence of Panchayatadars. A knife (MO. 21) was found in his shirt pocket and in the pocket of his underwear a leather purse (MO. 10) was found hich contained a gold chain (MO. 11) and a pair of gold ear rings with blue stones studded in the middle (MO. 12 ). Blood stains were found on the purse MO. 10. Those articles were seized under a mahazar in the presence of Panchayatdars. The Circle Inspector also found a cut injury on the chest of accused No. 2. On the same day at about 5 p. m. on the information furnished by accused No. 2 a pair of gold Vonti was recovered from p. W. 32 Duggappa Gowda a resident of Kerehalli with whom he had pledged the same through PW. 31, in the presence of Panchayatdars, which was seized under mahazar. ( 15 ) AS accused Nos. On the same day at about 5 p. m. on the information furnished by accused No. 2 a pair of gold Vonti was recovered from p. W. 32 Duggappa Gowda a resident of Kerehalli with whom he had pledged the same through PW. 31, in the presence of Panchayatdars, which was seized under mahazar. ( 15 ) AS accused Nos. 1 and 2 offered to make a confession, the confessional statement of accused No. 1 was recorded on November 27, 1963 by the Munsiff magistrate, Bantwal, PW. 26, and of accused No. 2 on December 10, 1963, by the III Addl District Munsiff Magistrate, Mangalore (PW. 27 ). After completing the investigation the Circle Inspector placed a charge sheet against all the three accused on February 12, 1964 before the Sub-Divisional magistrate, Puttur. After the committal enquiry, the Magistrate committed all the three accused for trial to the Court of Session, South kanara, Mangalore. ( 16 ) AFTER committal to his Court, the Sessions Judge framed charges against the accused as mentioned above, namely charges 1, 2 and 3, for the murder of Krishna Rai, Laxmi and Gangadhara respectively in furtherence of the common intention punishable under S. 302 read with S 34 of the Penal Code, and the fourth charge for the offence of voluntarily causing hurt in committing robbery punishable under S. 394 IPC. Charges 1 to 4 were against the appellants (accused 1 and 2 ). The remaining charges, namely, charges 5, 6 and 7, were against accused No. 3. The Sessions judge has recorded an acquittal under charges 5, 6 and 7 framed against accused No. 3 and hence we are not concerned with the same in this appeal on consideration of the entire evidence adduced in the case the Sessions judge came to the conclusion that the prosecution had established a clear case against the appellants under charges 1 to 4, and as mentioned above he recorded an acquittal under all the three charges that were framed against accused No. 3. It is against the conviction and sentences passed against them that the present appeal has been filed by the appellants (accused 1 and 2 ). The Sessions Judge has also submitted the proceedings of the case for the confirmation of the death sentences passed against the appellants under S. 374, Crl. P. C. Mr. It is against the conviction and sentences passed against them that the present appeal has been filed by the appellants (accused 1 and 2 ). The Sessions Judge has also submitted the proceedings of the case for the confirmation of the death sentences passed against the appellants under S. 374, Crl. P. C. Mr. Gopalakrishna Shetty appeared on behalf of accused No. 1, while mr. Devaraju appeared for accused No. 2. ( 17 ) THUS from the number and nature of the iniuries, it could be seen that two weapons were used in the infliction of the injuries. The two weapons could not have been wielded bv one person only and there must have been more than one person to wield the two weapons. So many injuries and three murders could not have been the work of a single person. Two or more than two persons must have participated in the commission of the crime. It is, therefore, clear from the evidence adduced by the prosecution that some persons entered the house of Krishna Rai on the night of November 4, 1963, with weapons like the Ealakathi MO. 1 and the knife MO. 2 and caused the death of Krishna Rai, Laxmi and the bov Gangadhara by inflicting iniuries on them. There is no direct evidence of any eye witness. The prosecution depended upon circumstantial evidence. In addition to the circumstantial evidence the prosecution also relied upon the confession statement made by accused No. 1. The material question for determination, therefore, is whether the offences charged are established bevond reasonable doubt against the appellants and they are the real culprits. ( 18 ) LAW requires that before the circumstances appearing against the accused could be accepted as conclusive, the circumstances relied on must be satisfactorily established and the proved circumstances must establish, the guilt of the accused bevond reasonable doubt. In other words, as observed bv their Lordships of the Supreme Court in Nina Stree v. State of Orissa, AIR 1954 SC 279 , that if cases depended upon circumstantial evidence, the only question is whether the evidence on the record is consistent only with the guilt of the accused or is consistent with any other rational explanation. Against accused No. 1 the prosecution depended upon the following circumstances. Against accused No. 1 the prosecution depended upon the following circumstances. ( 19 ) IT is, therefore, clearly established by the prosecution that accused No. 1 was on intimate terms with the deceased Krishna Rai. The next circumstance against accused No. 1 on which the prosecution depended was the incident which is alleged to have taken place about six or seven days prior to the occurrence when accused No. 1 was insulted by laxmi and Krishna Rai following the incident of the attempted molestation by accused No. 1 of Laxmi. ( 20 ) THE evidence of this witness by itself is insufficient to prove the alleged incident. But the prosecution relied upon the same to corroborate the confessional statement of accused No. 1 to which we wil allude presently. The other circumstance relied upon by the prosecution was the recovery of blood stained torch MO. 41 from the house of accused No. 1 on november 7, 1963 in the presence of Panchayatdars under a mahazar. The report of the Chemical Examiner (Ext. P-18) is that the blood on the torch was mammalian blood. ( 21 ) THE recovery of MO. 41 is satisfactorily established by the evidence of PWs. 39 and 50. But the submission of Mr. Shetty was that the ownership of MO. 41 is not established by the prosecution and therefore the recovery of MO. 41 cannot have any incriminating effect against accused no. 1. It is true that the ownership of this article is not proved. M. O. 41 was not shown either to PW. 3 or PW. 5 who were the nearest relations of the deceased Krishna Rai and Laxmi, nor it has been identified by any other prosecution witness. But the fact remains that it was recovered from the house of accused No. 1 and the report of the Chemical Examiner is that the blood on MO. 41 was mammalian blood. Accused No. 1 does not claim its ownership nor has given any satisfactory explanation with regard to mo. 41. The submission made by Mr. Shetty that the recovery of MO. 41 from the house of accused No. 1 cannot be an incriminating circumstance against him has therefore no substance in it. The next circumstance on which the prosecution depended was the recovery of a blood stained Mundu MO. 61 after the arrest of accused 1, from his person. 41. The submission made by Mr. Shetty that the recovery of MO. 41 from the house of accused No. 1 cannot be an incriminating circumstance against him has therefore no substance in it. The next circumstance on which the prosecution depended was the recovery of a blood stained Mundu MO. 61 after the arrest of accused 1, from his person. ( 22 ) IT was submitted by Mr. Shetty that three Dhoties were sent to the experts and it is not clear which one out of these three contained human blood. Therefore the recovery of MO. 61 cannot be of much materiality. We find substance in his submission. It is borne by the record that three dhoties were sent to the Chemical Examiner. It is difficult to ascertain either irom the report of the Chemical Examiner of the Serologist which one out of the three dhoties contained human blood. Mr. Kamachandra Rao, the learned Government Pleader also had to admit it. Therefore the recovery of MO. 61 cannot be of much assistance to the prosecution. The other circumstance on which the prosecution relied is that after his arrest when the person of accused No. 1 was searched, a cut injury was found on his right palm. ( 23 ) ACCUSED No. 1 was examined by the Medical Officer, Puttur, on november 10, 1963, at 12-30 a. m. He found on accused No. 1 five more injuries besides the cut wound on his right hand palm. Those five wounds were: (1) one healing crescent nail mark on the left side of upper lip, (2) one healing incised wound on the palmer aspect of distel of left forefinger, (3) one healing incised wound on the palmer aspect of distel of left ring finger, (4) one healing incised wound on the palmer aspect towards the inner aspect of the right middle finger and (5) one healing incised wound on the palmer aspect towards the ulnar aspect of the right ring finger. Ext. P-9 is the certificate issued by the Medical Officer after examining accused No. 1. The opinion of the Doctor was that the age of the injuries found on the person of accused No. 1 could approximately be fixed as four days and that they could have been sustained while wielding MO. 1 indiscriminately. Ext. P-9 is the certificate issued by the Medical Officer after examining accused No. 1. The opinion of the Doctor was that the age of the injuries found on the person of accused No. 1 could approximately be fixed as four days and that they could have been sustained while wielding MO. 1 indiscriminately. ( 24 ) IT is therefore satisfactorily established by the evidence let in by the prosecution that when accused No. 1 was arrested, wounds were found on his person and that the wound on the right palm and the injuries numbers 2 to 5 could be caused by the Balakathi MO. 1 and injury No. 1 on the upper lip was caused by the pressure Of a nail. The next and the most important piece of circumstantial evidence relied upon by the prosecution to establish the complicity of accused No. 1 in the crime is the recovery of the articles of jewellary that belonged to the deceased on the information furnished by accused No. 1. ( 25 ) ACCORDING to the Chemical Examiner the blood found on MO. 1 was mammalian blood, but the serologist was, however, unable to give his opinion and his report Ext. P-21 is to the effect that the blood stains on mo. 1 had disintegrated and therefore he could not give any opinion. Accused No. 1 denied the recovery of MO. 1 but he has not given any reasons as to why the evidence of the prosecution witnesses relating to the recovery and identification of the Balakathi MO. 1 should be rejected. Nothing has been elicited in the cross-examination of these witnesses to discredit their version. In the absence of any explanation it can be reasonably concluded that the Balakathi MO. 1 had been recovered on the information furnished by accused No. 1 and it belongs to him. The recovery of an instrument said td have been used in the commission of a crime on the information suppied by the accused is by itself important. ( 26 ) THE next submission made by Mr. Gopalakrishna Shetty was that all the articles recovered were articles of common use and therefore no reliance can be placed on the testimony of the identifying witnesses. There is no force in this contention. Further the gold ring MO. 6 had the letters 'kl' engraved on it. ( 26 ) THE next submission made by Mr. Gopalakrishna Shetty was that all the articles recovered were articles of common use and therefore no reliance can be placed on the testimony of the identifying witnesses. There is no force in this contention. Further the gold ring MO. 6 had the letters 'kl' engraved on it. The following observations of Ramaswami J. in public Prosecutor v. I. C. Lingiah, AIR. 1954 Mad. 433 make it clear that there is no substance in such a contention:"the only point of criticism advanced by the learned Magistrate is that these articles are articles of common use and bear no particular marks and consequently no reliance can be placed on the testimony of these identifying witnesses. But in advancing this criticism it is forgotten that small and even nice points of difference distinguishing one thing from others of the same kind may merely by the frequent sight of them and without any special attention td them make an impression on the mind. They are component parts of the thing and go to make the whole of which the mind receives an impression. In this case the impression is the general appearance of the thing. This sort of impression is exceedingly common, a workman has it of his tools and most people have it of their dress, jewellery and other things they are frequently seeing, handling or using. It occurs every day that by remembrance of their general appearence a carpenter, mason or other workman recognises his tools; and dress jewellery or other property is known by its owner. Undoubtedly animals and things may be identified by those familiar with them. Observation teaches that such identification may be safely relied upon. But at the same time a witness would not be able to formulate his reasons for the identification since it is based upon general untransferable impressions of the mind. I may readily recognise my veshti, my cow, my wife's addigai or my friend's handwriting in the midst of a multitude of other things in most respects like them. But if questioned I would not be able to formulate any cogent of intelligent reason for the identification. It would be fatuous to discredit such identification on the ground that reasons are not being formulated for them. But if questioned I would not be able to formulate any cogent of intelligent reason for the identification. It would be fatuous to discredit such identification on the ground that reasons are not being formulated for them. " ( 27 ) AS a matter of fact, as already observed above, in the instant case no attempt has been made to challenge the correctness of the identification. The articles were identified by PWs. 3 and 5 who are the nearest relations of the deceasd Krishna Rai and Laxmi respectively and they were familiar with those articles. Most of them had been got prepared by pw. 5. Similarly PW. 9 who is the gold-smith who had prepared some of the ornaments and PW7 who was a maid servant in deceased Krishna rai's house, had the opportunity of seeing some of the ornaments on the person of Laxmi, have identified the same. Regarding the identification of the watch MO. 8, PW. 38 Subrayan Pothi has stated that he had sold mo. 8 to the deceased Krishna Rai and that he used to see it being worn by Krishna Rai during his annual visits to Nelliyadi. No question was put to him in his cross-examination. We have no hesitation in accepting his evidence. Therefore we find no substance in the argument of Mr. Gopalakrishna shetty that the evidence of the identifying witnesses is artificial and should be rejected. The next circumstance against accused No. 1 depended upon by the prosecution is his abscondence. ( 28 ) IT is thus satisfactorily established by the prosecution that after the incident till 9-11-1963 accused No. 1 was not in Nelliyadi Village. But this, undoubtedly, is a small circumstance and that by itself would not be of much assistance to the prosecution, but, taken along with the other facts and circumstances of the case, it assumes importance. The list which was prepared on the morning of November 6, 1963, on the statement made by PW. 3 Narayana Rai and PW. 5 Thimmanna Rai, was another circumstance against accused 1 depended by the prosecution. ( 29 ) THE other incriminating circumstance relied upon by the prosecution against accused 1 is that the Balakathi MO. The list which was prepared on the morning of November 6, 1963, on the statement made by PW. 3 Narayana Rai and PW. 5 Thimmanna Rai, was another circumstance against accused 1 depended by the prosecution. ( 29 ) THE other incriminating circumstance relied upon by the prosecution against accused 1 is that the Balakathi MO. 1 belonging to him was traced on information furnished by accused No. 1, and that the medical evidence is to the effect that the injuries on the bodies of the dead persons could be caused by MO. 1. The evidence of the Medical Officer PW. 25 is that out of the thirty six injuries found on the dead body of Krishna Rai, injuries numbers 1, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19 and 29 could be caused by a weapon like the Balakathi MO. 1. It was also the evidence of the medicial Officer that injuries numbers 14,17,18,19, 23, 25 and 26 to 29 out of the twenty nine injuries found on the dead body of Laxmi could be caused by the Balakathi MO. 1. He was further of opinion that all the injuries found on the dead body of the boy Gangadhara could be caused by the Balakathi MO. 1. This circumstance also establishes the complicity of accused No. 1 in the crime. ( 30 ) THE murder of the boy Gangadhara affords basis for a reasonable inference that the person who committed the murder was not a stranger to the household of the deceased Krishna Rai because the murder of the boy does not fit in either with the case of robbery ot vengeance. It fits in only with the circumstance that the boy was done away with because the murderers or one of them was known to him and was identified by him on that night. It is in the evidence that accused No. 1 was intimately known to the household of deceased Krishna Rai. Accused No. 1 has also admitted in his statement in the trial Court that he was ' on friendly terms with Krishna rai and that he was visiting his house very often'. Hence there was a fear in the mind of the murderers that if the boy was left alive, he would give evidence against him. ( 31 ) ONE more circumstance relied upon by the prosecution against accused no. Hence there was a fear in the mind of the murderers that if the boy was left alive, he would give evidence against him. ( 31 ) ONE more circumstance relied upon by the prosecution against accused no. 1 is that it is in the evidence of Podia PW. 23 who was tending the cattle in the house of the deceased Krishna Rai that there were two dogs in the house of the deceased which were very ferocious and that they were kept on chain during the day time and were let off only in the night. PW. 23 has also deposed that he had seen the do'gs in the house of the deceased a day previous to the murders. This has been elicited from him in the cross-examination by accused 1. These dogs being there in the night of the murders we do not think it would have been possible for any stranger to enter into the house of the deceased Krishna Rai. There is no evidence on record to show that they had been doped. Since there is no evidence that the dogs had been doped it can be validly inferred that one or more of the persons who' entered the house of the deceased Krishna Rai on the night of the murders were not strangers to the household of the deceased krishna Rai. These two circumstances point to the conclusion that the murderers or some of them were not merely known to Krishna Rai but were also very familiar to him. ( 32 ) IT is clear from the above review of the evidence that the articles of jewellery belonging to the deceased persons which were either on the person of the deceased or had been kept in the house were recovered on the information furnished by accused I. It is also satisfactorily established that the Balakathi MO. 1 belonging to the accused 1 was traced on the information given by him. These proved circumstances clearly implicate accused 1 in the crime and they by themselves are sufficient to base a conviction against him. ( 33 ) THE prosecution in addition relied on the confessional statement of accused 1, which has been recorded on November 23, 1963 by the IV Additional district Munsiff Magistrate, Bantwal, PW. 26, which has been marked as Ext. P-11 in the case. ( 33 ) THE prosecution in addition relied on the confessional statement of accused 1, which has been recorded on November 23, 1963 by the IV Additional district Munsiff Magistrate, Bantwal, PW. 26, which has been marked as Ext. P-11 in the case. As observed above, even apart from the confessional statement, the prosecution has produced satisfactory evidence on which the conviction of accused 1 can be based. Therefore, even if the confessional statement of accused 1 is not acted upon, there is sufficient evidence in the case which connects the guilt with accused 1 beyond any reasonable doubt. With this observation we now proceed to consider the confessional statement made by accused 1. ( 34 ) BEFORE any reliance can be placed on it, the prosecution must prove that it was voluntarily made and the Court must be satisfied that the facts stated therein are true. Accused 1 was produced before the Circle inspector PW. 50 bv PC. PW. 46 on November 9, 1963, and PW. 50 arrested him on the same day at 4 p. m. It appears from the evidence of PW. 50 that accused 1 was kept in police custody till November 21, 1963. Then he was sent to judicial custody at the sub-jail, at Puttur with a requisition for recording his confessional statement. From Puttur accused 1 was transferred to Bantwal Sub-Jail and he was produced before the Bantwal District munsiff Magistrate on November 23, 1963 for confessional statement the Judicial Magistrate, PW. 26 Mr. Chandasakhara Hegde, after putting the necessary preliminary questions to accused 1 gave him time till november 25, 1963 for reflection. As 25th of November 1963 was declared a Holiday, accused 1 was produced before him again on 26th of November, 1963 and his confessional statement was recorded by the Magistrate on that day. PW. 26 has stated that he had given accused 1 the necessary warning and that he was satisfied that he made his statement voluntarily. He is a responsible officer. The record maintained by him shows that he had not discharged his duties in a mechanical manner but scrupulously and honestly. He had clearly told accused No. 1 that he was not required to make a statement and any statement that he may choose td make was likely to be used against him. He is a responsible officer. The record maintained by him shows that he had not discharged his duties in a mechanical manner but scrupulously and honestly. He had clearly told accused No. 1 that he was not required to make a statement and any statement that he may choose td make was likely to be used against him. By questioning him, he had satisfied himself that the desire of accused 1 to make a statement was not prompted or compelled by others. PW. 26 appears to have complied with all the requirements of the law. We are not shown any material or circumstance, excepting the bare statement of accused 1 to the effect that the confessional statement was extracted from him by the police by holding out threats and inducements (to which we will allude at the proper stage), from which we could reasonably conclude that the statement was not voluntarily made. ( 35 ) WE shall first consider the criticism levelled by Mr. Gopalakrishna shetty against the confessional statement of accused 1. He took strong exception to the delay in producing the accused before the Magistrate for recording his statement. According to him accused 1 had expressed his desire to make a statement soon after his arrest. He contended that once an accused expresses a desire to make a confession before a Magistrate, the police are duty bound to produce him immediately before a Magistrate for recording his confessional statement under S. 164 of the Crl. P. C. In support of his contention he relied on the decision in Savlimiya Bhai v. Emperor, AIR. 1944 Bom. 338 wherein the Bombay High Court observed : "under S. 164 when an accused person desires to make a confession, he should be brought before the Magistrate and the confession should be taken by him after taking care that no policeman was present in court. Although the section does not say anything as to when the accused can be brought before the Magistrate after he shows his willingness to confess there is no doubt on general principles that the accused must be sent to Magisterial custody as soon as he expresses such willingness. Although the section does not say anything as to when the accused can be brought before the Magistrate after he shows his willingness to confess there is no doubt on general principles that the accused must be sent to Magisterial custody as soon as he expresses such willingness. It may be that the police might not have at that time started any investigation or that the investigation might be incomplete, but there is no justifiable reason why the police should keep an accused person in their custody for several days after they know that he wanted to' confess merely on the ground that his presence was necessary for further investigation. In all cases where the investigation by the police is either conducted, or continued after the accused expresses his desire to confess and if ultimately after the investigation is over the accused does make a confession there would be a reasonable ground for apprehension that the confession was made to fit in with the result of investigation so that it may be regarded as having been corroborated. For that reason it is necessary that the accused should be sent to the Magistrate as soon as he expresses his desire to confess and the Magistrate, at the time of recording the confession, should ascertain when the accused first expressed his willingness to confess and to record it in the confession. " ( 36 ) IT is true that the Circle Inspector PW. 50 has deposed that soon after his arrest, accused 1 had expressed his desire to make a statement, and that he delayed getting his statement recorded as he had to make further recoveries of stolen properties. But, we do not think that this omission in any manner vitiates the confession given if the same is proved to have been voluntarily made. ( 37 ) IN the Bombay case referred to above the learned Judges pointed out a circular issued by the Bombay High Court under which an accused could be returned to the police custody even after he had given a confessional statement. No similar circular so issued by this Court has been brought to our notice. Hence the reasoning adopted by the learned Judges in the above case is not of any assistance in this case. No similar circular so issued by this Court has been brought to our notice. Hence the reasoning adopted by the learned Judges in the above case is not of any assistance in this case. Moreover in the said case the learned Judges even after noticing the delay and other defects in the confessional statement given by the first accused therein, still made use of the same in confirming his conviction. ( 38 ) WHETHER a confessional statement was voluntarily made or not is essentially a question of fact. In ascertaining the voluntary nature of the statement, different tests will have to be applied to different sets of facts. The tests are evolved by constant process of judicial thinking. But in the very nature of things, there can be no' rigidity about them. What test is best applicable to a given set of facts is for the Judge of facts to decide. It may be noted that in this case no contravention of either S. 164, crl. P. C. , or any rule framed or any circular issued is alleged. Accused 1 however in his statement under S. 342 of the Crl. P. C. stated in the trial court, that the confession was extracted from him by threat and by holding out inducement. ( 39 ) THEREFORE, there is no evidence whatsoever on record to support the allegation made by accused No. 1 this takes us to the question whether the facts stated in Ex. P-11 are true. The story therein appears to be full and complete. There is a ring of truth in the version given. It is full of details as to what all happened on the day of the occurrence. Those details could not have been imagined or woven out by imaginative minds and thereafter tutored to accused No. 1. Prima facie the facts stated in Ex. P-11 appear to be true. Accused No. 1 has retracted from his confession and stated before the committal Magistrate and also in the trial court that it was made by him due to threat and inducement by the police. Being a retracted confession, it requires to be corroborated. The corroboration required is not only of material particulars but must be useful in connecting the accused with the crime. It is not the law that the confession should be corroborated in every respect. Otherwise the confession becomes superfluous. Being a retracted confession, it requires to be corroborated. The corroboration required is not only of material particulars but must be useful in connecting the accused with the crime. It is not the law that the confession should be corroborated in every respect. Otherwise the confession becomes superfluous. Nor it is necessary that the corroborating facts or circumstances should have been ascertained subsequent to the confession (vide Kushal Rao v. State of Bombay, AIR. 1958 SC. 22 bearing in mind these requirements, we shall examine the corroboration available in this case. ( 40 ) WE therefore find no impediment whatsoever in accepting the confessional statement of accused No. 1. The evidence of the Doctor and the evidence of the witnesses referred to above are enough to corroborate the confession made by Accused No. 1 which establishes the complicity of the accused in the crime. The confessional statement bv itself is sufficient to base a conviction against accused No. 1. Even otherwise as alreadv observed there is independent satisfactory evidence in the case which clearly establishes the complicity of accused No 1 in the crime. Now accused No. 2 was arrested on November 25, 1963, at 4 a. m. while he was sleeping in the house of one Nadu Bail Koragappa Gowda a neighbour of his father-in-law, at Rekhya village. The circle Inspector p. W. 50 effected his arrest in the presence of the Panch witness Narayana gowda P. W. 34. ( 41 ) AFTER his arrest, when his person was searched a blood stained folding knife MO. 2 was recovered from his shirt pocket. A bood stained purse, m. O. 10, was found in the pocket of his under-wear which contained in it besides cash and bus ticket, a gold pettige chain M. O. 11 and a pair of sudershan ear-rings with blue stones in the middle (M. O. 12 ). The circle inspector P. W. 50 seized these articles under the mahazar Ex. P-26. The next important piece of circumstantial evidence relied upon by the prosecution to establish the complicity of accused No. 2 in the crime is the recovery of a pair of Vonti M. O. 29, under the mahazar, Ex. P-25, in the presence of Panchas, on information furnished by accused No. 2. ( 42 ) THE recovery of M. Os. P-26. The next important piece of circumstantial evidence relied upon by the prosecution to establish the complicity of accused No. 2 in the crime is the recovery of a pair of Vonti M. O. 29, under the mahazar, Ex. P-25, in the presence of Panchas, on information furnished by accused No. 2. ( 42 ) THE recovery of M. Os. 42, 51 and 52 belonging to deceased Krishna rai from the house of accused No. 2, is an incriminating circumstance which connects the guilt with accused No. 2. The other circumstance relied upon bv the prosecution against accused 2 was that a cut injury was found on his chest when he was arrested these injuries found on the person of accused No. 2 when he was arrested a few days after the murders, also lend some support to the prosecute on case. But we may add here that this circumstance by itself is not of much importance. It however assumes importance when considered along with other circumstances proved against accused No. 2. The other circumstance depended upon by the prosecution was that accused No. 2 was available in his house on the night of the murders. ( 43 ) IT is thus satisfactorily established by the evidence of these witnesses that near about the period of the murders, accused No. 2 was available in his house. The last circumstance relied on behalf of the prosecution against accused No. 2 was that he was a needy man. It is established satisfactorily from the evidence of these witnesses that accused No. 2 was a needy man not in affluent circumstances and that he used to borrow money frequently from others. The circumstances proved in this case by the prosecution against accused No. 2 clearly connect him with the crime. ( 44 ) THE prosecution did not rely on the confessional statement made by accused No. 2 and we think rightlv. As pointed out by the Sessions Judge, the confession made by accused No. 2 was exculpative in nature. Therefore, it is not of any assistance to the prosecution. But the submission is made bv Mr. ( 44 ) THE prosecution did not rely on the confessional statement made by accused No. 2 and we think rightlv. As pointed out by the Sessions Judge, the confession made by accused No. 2 was exculpative in nature. Therefore, it is not of any assistance to the prosecution. But the submission is made bv Mr. Ramachandra Rao, the learned Government Pleader, relying on a decision of the Supreme Court in Haricharan Kumari v. State of behar, AIR 1964 SC 1184 that the confessional statement of accused No. 1 may be used in order to1 rereive assurance to the conclusion reached by the Court of the guilt of accused No. 2 on the basis of other evidence. We have in this case as observed above, other independent and trustworthy evidence against accused No. 2 implicating him in the crime. We have further observed while considering the confessional statement of accused No. 1 that it (confession) implicates accused No. 2 also in the crime. In the decision relied upon by the prosecution, their Lordships of the Supreme Court observe,"as a result of the provisions contained in S. 30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus though confession may be regarded as evidence in that generic serse because of the provisions of S 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person the Court cannot start with the confession of a co-accused person; it must begin with the other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. " ( 45 ) THEREFORE, the confession of accused No. 1 may be used to receive assurance to the contusion reached by the Court of the guilt of the accused No. 2 on the basis of other evidence. " ( 45 ) THEREFORE, the confession of accused No. 1 may be used to receive assurance to the contusion reached by the Court of the guilt of the accused No. 2 on the basis of other evidence. Even otherwise, there is independent reliable evidence establishing- the complicity of accused No. 2 in the crime, beyond reasonable doubt which by itself is sufficient to base conviction against him. It was next submitted by Mr. Gopalakrishna Shetty and by Mr. Devaraju that it is stated in the panchanama Ex. P-47 that linger print marks of blood were found in the corner at the lower portion on the right side of the trunk in its front side and the finger print expert, Bangalore has examined the same on the spot itself for the purpose of further proceedings and the same is kept separate for the purpose of further enquiry by the finger print expert, it is also borne by the panchanama" Ex. P-48 that two door planks of the wall almirah and also some other records contained blood finger prints and the finger print expert has examined the said articles. It is further stated therein that those articles were seized by the police tor the purpose of further proceedings. The letter of the Circle inspector of Police, Puttur, dated November 14, 1963 to the Deputy superintendent of Police, Puttur Sub Division, and the requisition of the uperintendent of Police to the finger Print Expert which has been marked as Ex. P-24 go to show that the tiunk M. O. 30 and the cover containing sample finger prints of the accused persons and also of suspected persons, were sent to the Finger Print Expert for his report after necessary examination of the finger prints. The Sub Inspector, District Intelligence bureau, P. W. 42 gave evidence that when he inspected the scene of offence on November 6, 1963, he found faint blood stained finger prints on three pieces of paper and that some blood stained prints were found on the cup-board shutters. He preserved them and handed them over to the Finger print Expert on his arrival on November 8, 1963 and the Circle Inspector, p. W. 50 has deposed that blood stains with faint finger print impressions were found on some of the papers and he preserved them for finger prini test. He preserved them and handed them over to the Finger print Expert on his arrival on November 8, 1963 and the Circle Inspector, p. W. 50 has deposed that blood stains with faint finger print impressions were found on some of the papers and he preserved them for finger prini test. He has further deposed that he found an envelope near the almirah but he did not touch the envelope and the records that were lying scattered in the verandah as he wanted to preserve them for the finger print expert. On the basis of this material Mr. Shetty and Mr. Devaraju argued that it is clear that the articles containing finger prints were sent to the finger print expert, but the prosecution has not produced any report of the expert. It was urged that the report of the finger print expert was an important piece of evidence and on the failure to produce the same, we should draw an adverse inference against the prosecution. ( 46 ) IT is true that it appears from Exts. P-24, P-47 and P-48 and also from the evidence of P. W. 42 and the Circle Inspector P. W. 50 that blood stained finger prints were found on some articles which were preserved by the police and sent to the finger print expert. The prosecution has not produced the report of the Finger Print Expert nor the non-production of the same is satisfactorily explained by the prosecution. The ordinary rule of evidence as indicated in S. 114 illustration (g) of the Evidence Act is that if the best evidence is not produced though available, the consequential presumption is that the evidence which could be produced and is not, would not be favourable to the party who withholds it. Therefore, we have no doubt of the propriety of the application of the presumption. But, as already observed, we have clear and independent evidence in this case which connects the guilt beyond reasonable doubt with the accused persons (appellants ). In this situation of the case, the presumption indicated in illustration (g) to Sec. 114 of the Evidence Act cannot displace the contrary inference supported by adequate evidence. This was the principle laid down by the Privy Council in Ramachendrudu v. Janakiramana, AIR. 1920 PC. In this situation of the case, the presumption indicated in illustration (g) to Sec. 114 of the Evidence Act cannot displace the contrary inference supported by adequate evidence. This was the principle laid down by the Privy Council in Ramachendrudu v. Janakiramana, AIR. 1920 PC. 84, sir Lawrence Jenkins who spoke for the Board observed at page 86 of the report,"the argument proceeds that the 1st defendant has failed to produce the books of account under his control, which should show how he dealt with this interest, and so, it is contended there arises against him the presumption indicated in illustration (g) to Section 114 of the evidence Act. Their Lordships recognise the value of the presumption, and most certainly would throw no doubt on the propriety of its application where it fits the facts; but it cannot displace a contrary inference suppoted by adequate evidence, and here there is such evidence. " ( 47 ) IT was next submitted by Mr. Gopalakrishna Shetty and also by Mr. Devaraju that Kurubarakeri Mera Soma, Thimmappa Rai, Mutt Tukrappa rai and Hosavokkalu Sundara Shetty, whose names are mentioned in Ext. P-1, have not been examined by the prosecution. It was further argued in this connection that Mera Soma though called was not examined by the prosecution. It was submitted that the non-examination of these persona raised an adverse presumption against the prosecution. ( 48 ) WE think that this contention is devoid of force. None of them is an eye witness. Nor the learned Counsel were able to presuade us, that any one of these persons was in a position to give useful evidence in the case. There is no rule that every witness ought to be called by the prosecution whether he knows anything about the case or not and even if the prosecution knows that the witness is not likely to give any useful information either to help the accused or the prosecution. There is no rule that every witness ought to be called by the prosecution whether he knows anything about the case or not and even if the prosecution knows that the witness is not likely to give any useful information either to help the accused or the prosecution. ( 49 ) ON a careful review of the entire evidence adduced in the case, we entertain no doubt hi our mind that the conclusion arrived at by the sessions Judge that the circumstances relied by the prosecution had been satisfactorily established by clear evidence and that those circumstances are inconsistent with the innocence of the accused and lead to the irresistible conclusion that it is the appellants (accused 1 and 2) alone that committed the several offences alleged against them, is perfectly justified. We do not see any ground to differ from the Sessions Judge. The several circumstances proved against the appellants are clearly telltale circumstances and establish beyond doubt that accused 1 and 2 entered the house of deceased Krishna Rai on the night of November 4, 1963, with the common intention of committing murders and theft, and murdered the inmates of the house. The nature of the weapons used and the enormity cf the injuries inflicted on the portion of the bodies over which they were inflicted clearly show that the common intention of the appellants was to bring about the death of the victims and to commit theft. No other inference is possible in the circumstances of the case. The fact that a number of valuable articles belonging to the deceased were traced and recovered from the appellants either from their person or from their possession, and the fact that they offered no explanation, establish beyond all reasonable doubt that the appellants are the persons who committed the offences charged. The offences under charges 1 to 4 therefore are clearly established against them beyond any reasonable doubt by the prosecution evidence and the conviction of the appellants (accused 1 and 2) of the said charges by the sessions Judge is confirmed. ( 50 ) AS regards the sentence, it was submitted by Mr. Gopalakrishna shetty and Mr. The offences under charges 1 to 4 therefore are clearly established against them beyond any reasonable doubt by the prosecution evidence and the conviction of the appellants (accused 1 and 2) of the said charges by the sessions Judge is confirmed. ( 50 ) AS regards the sentence, it was submitted by Mr. Gopalakrishna shetty and Mr. Devaraju who argued for accused numbers 1 and 2 respectively, that if this Court is inclined to act upon the circumstantial evidence adduced in the case and the confessional statement of accused 1 and hold that the appellants committed the offences alleged against them, and decide to record conviction for murder as against the appellants, this court should not impose the extreme penalty of law and in the state of the record the lesser of the two punishments provided under S. 302 of the ipc. , namely, imprisonment for life should be deemed to meet the ends of justice. They submitted that both the accused are young persons and therefore the lesser of the two sentences provided by law would meet the ends of justice. ( 51 ) THE mere fact that the accused are young, cannot be an extenuating circumstance. As observed by their Lordships of the Supreme Court in vadivelu Thevar v. State of Madras, AIR 1957 SC 614 the question of sentence has to be determined not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution in support of the case but with reference to the fact whether there are any extenuating circumstances to mitigate the enormity of the crime. Their Lordships observed as follows :"if the Court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law. . . . . . . . . . The question as to what punishment should be imposed is for the Court to decide in all the circumstances of the case with particular reference to any extenuating circumstances. But the nature of proof, as we have indicated, has nothing to do with the question of punishment. " ( 52 ) IN the instant case, there are no extenuating circumstances which could be legitimately urged in support of the view that the lesser penalty under S. 302, IPC. would meet the ends of justice. But the nature of proof, as we have indicated, has nothing to do with the question of punishment. " ( 52 ) IN the instant case, there are no extenuating circumstances which could be legitimately urged in support of the view that the lesser penalty under S. 302, IPC. would meet the ends of justice. It is clear from the evidence adduced in the case that the appellants have acted brutally inasmuch as they have killed three innocent persons including a child of 7 while they were asleep in the house. The appellants had gone prepared with MOs. 1 and 2 to commit murders of the inmates of the house and did as a matter of fact commit the murders of 3 persons and also committed theft of valuable articles like jewellery, cash, etc. The murders, apart from being pre-planned, are dastardly and we do not think that any sentence other than death would be appropriate in the circumstances disclosed in the case so far as the charges under S. 302 of the IPC. are concerned. As regards the offence under the fourth charge i. e. , robbery, we feel that the sentence awarded against the appellants, does hot call for any interference. ( 53 ) BEFORE concluding this judgment we express our appreciation for the assistance rendered by Mr. Gopalakrishna Shetty and Mr. Devaraju who ably argued the case with full preparation of the record. In the result, therefore, for the reasons stated above, these appeals are dismissed. The reference made by the Sessions Judge under S. 374 of the crl. P. C. is accepted and the sentences of death passed against the appellants (accused 1 and 2) are confirmed. --- *** --- .