JUDGMENT 1. - This appeal by convicted accused-appellants Hari Shanker and Bakshuram is directed against the judgment dated January 17, 1975 of learned Sessions Judge, Bhilwara, whereby he convicted both the accused and sentenced them as under:- U/s. 452 IPC Four years rigorous imprisonment and a fine of Rs. 51/- each. In default of payment of fine to further suffer 2 months rigorous imprisonment. U/s. 394 IPC Five years rigorous imprisonment and a fine of Rs. 51/- each. In default of payment of fine to further undergo 3 months R.I. U/s. 302/34 IPC Imprisonment for life and a fine of Rs. 101/- each. In default of payment of fine to further suffer six months' rigorous imprisonment. The substantive sentences of imprisonment awarded to the accused-appellants were ordered to run concurrently. Both the accused appellants were acquitted of the offence under Section 458, IPC. 2. The facts giving rise to this appeal are that the accused appellants were in dire necessity of an amount of Rs. 500/-, which they wanted to pay to Shri Bhagwati Lal Jatti, who agreed to teach them the secret of "Tantrick" in consideration of the amount of Rs. 500/. Both the accused decided to obtain this amount from Daulat Ram Mahajan (since deceased). On the fateful day i.e., on December 31, 1973, both the accused went to the shop of Dault Ram (since deceased). Accused Bakshu Ram closed, with his hands; the mouth of Daulat Ram and the other accused appellant Hari Shanker inflicted sword blows on the body of Daulat Ram. Thereafter they removed the cash and ornaments from the shop and took their heels. 3. At the time when Daulat Ram was being murdered by the accused appellants, PW 1 Panna Lal and Shobha Lal Mahajan in the company of other 7-8- persons were warming themselves with fire, lit at a little distance from the scene of the occurrence. Just after the occurrence, Chand Mai, brother of the deceased, happened to come to the shop and, seeing his brother dead, cried in agony, which attracted the villagers on the scene. All of them found Daulat Ram lying dead with multiple injuries on his person. PW 13 Shri Surendra Kumar, SHO, happened to be in the village in connection with a meeting addressed by Shri Chandan Mal Baid, the sitting Minister, to secure votes for the Congress party Surendra Kumar SHO reached the shop. All of them found Daulat Ram lying dead with multiple injuries on his person. PW 13 Shri Surendra Kumar, SHO, happened to be in the village in connection with a meeting addressed by Shri Chandan Mal Baid, the sitting Minister, to secure votes for the Congress party Surendra Kumar SHO reached the shop. He drew up memo Ex. P/26 at 11.45 p.m. and sent the same to the Police Station, Badnore, for registration of the case. Chand Mal, brother of the deceased, submitted a list of the ornaments, alleged to have been taken away by the accused in the course of the same occurrence. The autopsy on the dead body of Daulat Ram was performed by Dr. Shyam Swaroop. The postmortem report is Ex. P/7. Both the accused were arrested on January 13, 1974 vide arrest memo Ex. P/I 2 and Ex. P/13. At the time of the arrest of accused Hari Shanker, some injuries were noticed on his person and as such he was got clinically examined by the Doctor. His injury report is Ex. P/25. In the course of investigation accused Hari Shanker expressed his desire to point out the articles removed by him from the shop of the deceased. That information was reduced into writing and the same marked Ex. P/28. In consequence of the information given by the accused, the articles, belonging to the deceased and wrapped up in a `Pachhewara,' were recovered after removal of the stack of fodder under which they had been concealed. The recovery memo is Ex. P/2. The `Panchhewara' in which they had been wrapped, was found stained with blood and the same was sealed separately from other articles. On January 15. 1974, accused Hari Shanker wanted to show the place where he had washed his hands after the commission of the crime. The information was reduced into writing and the same has been marked Ex. P. 30. In consequence of the above information the blood stained earth was recovered : vide seizure memo Ex. P. 4. Accused Bakshu Ram expressed his desire to get the blood stained sword, hidden by him in his house, recovered. The information memo has been marked as Ex P. 29. On the basis of the above information a sword was recovered from the house of Bakshu Ram and the same was seized and taken into possession by the police : vide Ex P. 1. The information memo has been marked as Ex P. 29. On the basis of the above information a sword was recovered from the house of Bakshu Ram and the same was seized and taken into possession by the police : vide Ex P. 1. Accused Bakshu Ram was produced before the Magistrate, who recorded his statement under Section 164, Cr P.C. His statement has been marked as Ex. P. 9. The opinion regarding the articles, recovered by the police and sent to the Assistant Director, Police Forensic Laboratory, is Ex. P. 33 and the report of the Serologist is Ex. P. 34. The test identification of the articles, belonging to the deceased and recovered at the instance of the accused, was conducted under the supervision of PW 10 Shri Dharmpal Singh. The identification memo is Ex. P. 11. 4. After usual investigation a challan was submitted against both the accused, who after completion of the committal proceedings, were tried by learned Sessions Judge, Bhilwara for offences under Sections 452, 458, 394, 302, I.P.C. and in the alternative under Section 302/34, I.P.C. Both the accused denied their complicity in the crime. The prosecution examined 15 witnesses in support of its case. The statement of Dr. Shyam Swaroop, recorded by the Committing Court, was brought on the record of the trial Court under Section 291, Cr.P.C. and Dr. M.M. Tiwari, Assistant Director, Police Forensic Science Laboratory, Jaipur, was examined as a Court Witness. The identification memo and the statement of accused Bakshu Ram, recorded under Section 154, Cr.P.C, were also placed on the record. Both the accused pleaded innocence. The learned Sessions Judge after perusing the record in the light of arguments, advanced before him, held both the accused-appellants guilty and sentenced them as mentioned above. 5. Both the accused-appellants, feeling aggrieved with the judgment of the trial Court, have come up in appeal to this Court, challenging the conviction and sentences awarded to them. 6. Mr. Gour, learned counsel for the appellants, vehemently urged that the trial Court erred in law and fact in convicting the accused-appellants. He argued that (a) the confessional statement Ex. 5. Both the accused-appellants, feeling aggrieved with the judgment of the trial Court, have come up in appeal to this Court, challenging the conviction and sentences awarded to them. 6. Mr. Gour, learned counsel for the appellants, vehemently urged that the trial Court erred in law and fact in convicting the accused-appellants. He argued that (a) the confessional statement Ex. P/9 relied upon was neither true, nor voluntary; (b) that the accused could not be convicted on his retracted version, even if the same was held to be true and voluntary; (c) that the conviction of the on-accused was based on the seakest type of evidence and could not be of any avail to the prosecution, (d) that the recovery of the article at the instance of the accused-appellants did not connect them with the crime, as there was no cogent and reliable evidence on record to hold that they were kept under lock and key and there was no chance of tampering with the property in between the recovery of the articles and their examination by the Chemical Examiner and the Serologist , (a) that the ornaments were of common pattern and they could be found with any villager and such articles were available in the houses of almost all villagers; and (f) that no specific mark of identification regarding ornaments was given by the identifying witnesses prior to the holding of the identification parade. Simple recovery of the property belonging to the deceased at the instance of the accused was not sufficient to hold accused Hari Shanker guilty of the offence punishable under Section 302 or 302/34, IPC. He could all the most be convicted under Section 411 IPC Learned Public Prosecutor appearing on behalf of the State supported. 7. There is no eye-witness of the occurrence and the conviction of the accused is based on circumstantial evidence. The law regarding circumstantial evidence stands well settled by a catena of cases of the Supreme Court and of this Court. Where a conviction is based upon the conclusion drawn from circumstances, it is well settled that each of the circumstance relied upon must be clearly established and the proved circumstances taken together must be such as reasonably to exclude the probability of innocence and to bring the offences home to the accused beyond reasonable doubt. Where a conviction is based upon the conclusion drawn from circumstances, it is well settled that each of the circumstance relied upon must be clearly established and the proved circumstances taken together must be such as reasonably to exclude the probability of innocence and to bring the offences home to the accused beyond reasonable doubt. In other words, it can be said that when there is no directive-ness and the whole case turns on circumstantial evidence, the circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In this connection reference may usefully be made to the following decisions:- (1) Hangleshwari Prasad v. State of Bihar, AIR 1954 SC 715 . (2) Bhagat Ram v. State of Punjab, AIR 1954 SC 621 . (3) Kedar Nath v. State of West Bengal, AIR 1954 SC 660 . (4) State v. Gulzari Lal., AIR 19749 SC 1382 . 8. It cannot be disputed that the person who inflicted injuries on the person of Daulat Ram intended to cause his death. Daulat Ram sustained four external injuries, out of which two were stab wounds, measuring 7" x 5" x 4" deep, on the left upper side of the abdomen and 7" x 5" x 4" deep, on the posterior side of the mid of neck. The fourth one was an incised wound, measuring 8" x 4" x 4", on the anterior side of the neck. In the opinion of the Doctor the cause of death was shock due to excessive hemorrhage by cutting both arteries. No doubt, the learned Public Prosecutor who conducted the case did not put a relevant question and as a result of which the Doctor did not say in his statement as to which of the injuries was sufficient in the ordinary course of nature to cause death, but the nature of the injuries and the vital part of the body on which they were caused leave no room for doubt that the person inflicting sword injuries on Daulat Ram (since deceased) intended to cause his death. 9. Now, we will deal separately the cases of each of the accused The evidence relied upon against accused Bakshuram was (i) his retracted confession Ex. P. 9; (ii) recovery of blood stained sword; and (iii) recovery of blood stained earth from his house in consequence of the information given by him. 9. Now, we will deal separately the cases of each of the accused The evidence relied upon against accused Bakshuram was (i) his retracted confession Ex. P. 9; (ii) recovery of blood stained sword; and (iii) recovery of blood stained earth from his house in consequence of the information given by him. As regards confession Ex. P. 9 Shri Suresh Chandra Jain, Sub-Divisional Magistrate, Gulabpura, stated that accused Bakshuram was produced before him on January 19, 1974. He explained to the accused that he was a Magistrate and that it was not incumbent for him to make a confessional statement and that if he made the same, that could be used against him. It was also made clear to him that after recording his statement he would not be handed over to the police. Thereafter the accused was sent to judicial custody to think over the matter. The accused was produced from the jail custody on January 22, 1974. The learned Magistrate again questioned the accused. Some further time was given to him for re-thinking. At 4 25 p.m. the accused made confessional statement which was recorded and has been marked as Ex. P. 9. The accused in his statement recorded under Section 313, Cr.P.C., denied to have made any confessional statement and then stated that he had not appended his signatures to Ex. P. 9. Thus, the accused has not taken the plea that the confessional statement made by him was made under duress or threat or due to persuasion. He has simply made a bold denial of making of a confessional statement. Where the accused taken a plea of force or fraud or not, yet it always enjoins on the prosecution to prove that it was voluntary. It is abhorrent recognition of justice and fair play and is also dangerous to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he says may be used against him and any attempt by a person in authority to bully a person into making a confession or any threat or coercion would at once invalidate it if the fear was at all operating on his mind at the time he makes the confession. That is why the recording of a confession is hatched along with so many safeguards and is the reason why a Magistrate ordinarily allows a period for reflection and why an accused person is remanded to jail custody and is put out of the reach of the investigation police before he is asked to make his confession. From the statement of the concerned Magistrate and the record it stands proved that all these precautions were taken in the case on hand. We have gone through the questions put to the accused prior to the recording of his statement and are satisfied that the accused made the statement Ex. P. 9 voluntarily and there was no pressure on his mind, nor was any inducement, threat or promise operated. 10. Now remains the question whether or not the statement made by the accused is true. Accused Bakshu Ram described that he and accused Hari Shanker were in need of money. They, therefore, decided to take money from Daulat Ram (since deceased). Congress election meeting was going on in the village that day. This fact stands corroborated by other witnesses. The details given by the accused regarding commission of the crime also inspire confidence and the trial Court was correct in holding that the statement given by the accused was voluntary, and true. A retracted confession, if believed, to be true and voluntary, can form the basis of confession. The rule of practice and prudence requires that it should be corroborated by independent witnesses, but it should be remembered that the rule of prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the accused person in the crime must be separately and independently corroborated. In establishing as to whether a particular confession is true or not, it is necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities of the case and come to a conclusion as to whether it is true or not. The confession in hand does satisfy the above test and, as already held by us, it is true. The Courts are required to look for the reasons for the making of the confession as well as for its retraction and must weigh the two to determine whether the retraction affects the voluntary nature of confession or not. The confession in hand does satisfy the above test and, as already held by us, it is true. The Courts are required to look for the reasons for the making of the confession as well as for its retraction and must weigh the two to determine whether the retraction affects the voluntary nature of confession or not. If the Court is satisfied that it was retracted because of an after thought or advice, retraction may not weigh with the Court if the general facts proved in the case and the tennor of confession as made and the circumstances of its making and withdrawal warrant its user. In the case on hand the accused has simply denied to have made the confession, which stands falsified by the statement of the concerned Magistrate. 11. The other incriminating circumstance against accused Bakshu Ram is the recovery of blood stained sword Ex. A/14. A perusal of Ex, P/33 and Ex. P/34 shows that the sword recovered at the instance of accused Bakshu Ram was found to be stained with human blood. Prior to the recovery of the sword accused Bakshu Ram gave information which was reduced into writing and the same has been marked as Ex. P/29, wherein the accused admitted that he has concealed the sword in a `Bhakari'. The sword recovered at the instance of the accused was found to be stained with dried blood on it. It was sewen in a cloth and was then sealed and seized. The seizure memo is Ex. P/1. The arrest of the accused and the recovery of the blood stained sword stand proved by the statements of PW J4 Radhey Shyam and PW 3 Kalyan Mai. 12. It was strenuously argued by the learned counsel for the appellants that the prosecution has not been able to prove by cogent and reliable evidence that the sword after its seizure was kept under lock and key and was not tampered with in between the period of its seizure and its reaching the Police Forensic Science Laboratory. We do not find much substance in the above argument. PW 14 Radhey Shyam stated that the sword Ex. A/14 recovered in consequence of the information given by accused-appellant Bakshu Ram was stained with blood. It was sealed and seized. We do not find much substance in the above argument. PW 14 Radhey Shyam stated that the sword Ex. A/14 recovered in consequence of the information given by accused-appellant Bakshu Ram was stained with blood. It was sealed and seized. PW 8 Prem Singh stated that the articles of police case No. 1 of 1974, State v. Bakshu Ram and Hari Shanker were kept in the Police Station in sealed condition and he brought them from Police Station, Badnore in the same condition and delivered the same in the office of the Superintendent of Police, Bhilwara and obtained a receipt of their delivery showing that the articles were delivered in sealed condition. He further stated that one of the articles delivered by him was a sword. PW 7 Man Singh stated that articles relating to the above noted case were delivered to him on February 6, 1974, in sealed condition for being delivered in the office of the Police Forensic Science Laboratory, Jaipur. These articles were not tampered with by him on the way and were delivered in a sealed condition there. He also obtained a receipt of the delivery. Court Witness Dr. M.M. Tiwari, Incharge of the Police Forensic Science Laboratory, Jaipur, stated that in those days he was working as Assistant Director, Police Forensic Science Laboratory. Vide Superintendent of Police, Bhilwara's letter No. 2204 5, dated February 6, 1974, sealed parcels were received through a special messenger in Police Car Viz., F.l.R. No. 1 under Sections 302-460 394 I.P.C. dated January 1, 1974 for the purposes of chemical examination. Picket `Y' contained a sword. PW 14 Radhey Shyam stated that Ex. A/14 sword was the same which was seized by him. Thus, from the statements of the above noted witnesses it stands proved that from the time of the seizure of the sword till the date of examination by Incharge of the Police Forensic Science Laboratory it was kept in a sealed condition and none tampered with it. A persual of Ex. P/33 shows that the parcel received by Incharge of the Police Forensic Science Laboratory relating to F.l R No. 1 of 1974 was received by him and in sealed condition and he detected blood on item No. 9, brought out from the packet, marked 'Y' The blood stained cuttings were also sent to the Serologist. The report of the Serologist and the Chemical Examiner Ex. The report of the Serologist and the Chemical Examiner Ex. P/34 reveals that item No. 9 mentioned in Ex. P/33 appearing at item No. 24, viz. sword, was stained with human blood. These documents are official documents and a presumption under Section 114 of the Indian Evidence Act arises that the official act must have been regularly performed From the above noted evidence it can be safely said that the accused has failed to suggest anything on the basis of which it can be reasonably said that the sword Ex. A/14 recovered at his instance could be tampered with and human blood could be sprinkled upon it prior to its examination by the Incharge of the Police Forensic Science Laboratory. Each and every fanciful or extravagant suggestion made by the accused, without any basis cannot be said to be sufficient to dislodge the prosecution case. The case, State v. Motia, 1953 RLW 640 . relid upon by the learned counsel for the appellants is distinguishable on facts. In the case on hand there is definite evidence regarding keeping of the sword in the sealed condition. Besides, the investigating officer identified the sword in the Court and stated that Ex. A/14 was the same which had been seized and sealed by him Dr. M.M. Tiwari stated that the quantity of blood in the earth was so meagre that it was not thought proper to send it for Serologist's examination and thus the recovery of earth is of no consequence to the prosecution. The confessional statement, Ex. P/9, finds corroboration in material particulars from the statement of Dr. Shyam Swaroop as well as from the recovery of blood stained sword Ex. A/14 The accused has failed to explain in his statement under Section 313, Cr. P.C., as to how he came to possess the sword Ex. A/14 on which human blood was noticed. He simply made a bold denial regarding recovery. For maintaining the conviction of an accused it is rot necessary that every one of the proved facts must in itself be decisive of the complicity of the accused or point conclusively to his guilt. A/14 on which human blood was noticed. He simply made a bold denial regarding recovery. For maintaining the conviction of an accused it is rot necessary that every one of the proved facts must in itself be decisive of the complicity of the accused or point conclusively to his guilt. It may be that a particular fact relied upon by the prosecution may not be decisive in itself, and yet if that fact, along with other facts, which have been proved, tends to strengthen the conclusion of his guilt, it is relevant and has to be considered. In other words, without deciding the question of sufficiency what the Court has to consider is the total cumulative effect of all the proved facts each one of which re-enforces the conclusion of guilt, and if the combined effect of all those facts taken together, is conclusive for establishing the guilt of the accused as the case in hand,the conviction would be justified even though it may be that any one or more of the facts by itself is not decisive. What has to be seen is "general fact of the case": vide R. v. Cooper, 1969 1 All E.R. 32 . The cumulative effect of the above noted evidence is that guilt has been brought home to the accused-appellant Bakshu Ram beyond reasonable doubt We uphold his convictions and sentences awarded to him by the trial Court. 13. Now remains the case of accused-appellant Hari Shanker The evidence relied upon for his conviction is;(i) recovery of stolen articles at his instance; (ii) presence of the injuries on his person; (iii) that retracted confession of co-accused Bakshu Ram, and (iv) recovery of blood stained earth at his instance. 14. As regards the recovery of blood stained earth suffice it to say that the quantity of blood in the earth was so meagre that it was not sent by Dr. M.M. Tiwari to Serologist and as such it cannot be considered to be an incriminating circumstance against the accused. 15. The other circumstance relied upon by the prosecution against this accused is the presence of three injuries on his person. He was clinically examined after nearly 14 days of the occurrence. All the three injuries were simple in nature. M.M. Tiwari to Serologist and as such it cannot be considered to be an incriminating circumstance against the accused. 15. The other circumstance relied upon by the prosecution against this accused is the presence of three injuries on his person. He was clinically examined after nearly 14 days of the occurrence. All the three injuries were simple in nature. The accused is a village-rustic and during the course of his day to day life as villager, he is required to handle axe, sickle for cutting wood and bushes. The presence of such injuries on the hand of the accused after 14 days of the occurrence cannot be availed of to connect him with an offence punishable with imprisonment for life or death. 16. Accused Hari Shanker was arrested on January 13, 1974: vide arrest memo Ex. P/i2. At the time of his arrest there were injuries on his right hand palm, on the middle finger, on the little finger and at the base of the thumb. Accused Hari Shanker after his arrest gave information that the articles taken away by him from the shop of Daulat Ram (since deceased) wrapped in a 'Pachhewara' are lying hidden inside Guwari of Bakshu Ram under the stack of fodder. The information memo is Ex. P/28. In consequence of the above information the accused took out the bundle wrapped in a `Pachhewara' from the stack of fodder. It was found that it contained four Dibbas, soap cakes, in two Dibbas there were change and in one Dibba there were sweet toffees and silver and gold ornaments. The `Pachhewara' Ex. A/15, in which the above noted articles were wrapped, was stained with blood. The ornaments recovered from the Dibba are `Kankti', pair of `Jhalas', `Kadulia', gold ring, pieces of silver `Nath', broken chain of a watch and silver buttons. Learned counsel for the appellants has rightly not challenged the recovery of the above noted articles at the instance of the accused `Jhalas' recovered in consequence of the information of the accused belonged to PW 4 Mst. Gattu. She pledged them with Daulat Ram and as she could not redeem them, they remained with Daulat Ram. This witness identified the Jhalas in the test identification proceeding as well as in the Court. Gattu. She pledged them with Daulat Ram and as she could not redeem them, they remained with Daulat Ram. This witness identified the Jhalas in the test identification proceeding as well as in the Court. The above lady stated that as she was putting on those `Jhalas' for a number of years, she was in a position to identify them. The argument relating to common pattern of articles needs to be mentioned for being rejected. The owner of an ornament, who wears it, can very well identify the same. We believe in her statement and hold that `Jhalas' Ex A/12 belong to her and were taken away from the shop of Daulat Ram (since deceased). PW 5 Dewa identified `Kadulia' Ex. A/6 and stated that this very `Kadulia' had been pledged by him with the deceased. Mst. Rukma, wife of Ram Chandra PW 11, identified the silver`Kanakti', Ex. A/7 Her husband also identified the same article. Shri Dharam Pal Singh PW 10 Magistrate with Third Class powers stated that on January 22, 1974, identification proceedings had been conducted under his supervision. From the statement of the above noted witness it can be safely said that the trial Court was correct in holding that the above noted ornaments recovered at the instance of accused Hari Shanker had been removed from the shop of Daulat Ram, with whom they had been pledged and belonged to the witnesses, who have identified them. Similarly from the statements of PW6 Chand Mal and PW 10 Shri Dharam Pal Singh it can be said that gold ring Ex. A/8 and `Pachhewara'Ex. A/15 were identified by Chand Mal as his and his brother's own property. From the statement of PW 14 Radhey Shaym it is proved that at the instance of accused Hari Shanker the above noted ornaments as well as a `Pachhewara' were recovered from the place of its hiding The`Pachhewara' at the time of its recovery was found stained with blood and as such it was separately sealed. Thus, it stands proved that the ornaments and the 'Pachhewara', Article 15, were recovered at the instance of the accused, which were lying under the stack of fodder in the house of Bakshu Ram (co-accused). The place from which these articles were recovered cannot re termed to be open and accessible to all and sundry. Thus, it stands proved that the ornaments and the 'Pachhewara', Article 15, were recovered at the instance of the accused, which were lying under the stack of fodder in the house of Bakshu Ram (co-accused). The place from which these articles were recovered cannot re termed to be open and accessible to all and sundry. There is nothing on record to show that the bundle in which the ornaments were concealed was visible or lying in open. On the contrary the prosecution evidence goes to prove that accused Hari Shanker brought it out from the stack of fodder, where it was lying concealed. The information memo Ex. P/28 clearly indicates that the articles were removed by him from the shop of Daulat Ram and were wrapped by him in a `Pachhawara' belonging in the deceased and he had concealed them under the stack of fodder in the house of Bakshu Ram. The words 'I have concealed it' are admissible under Section 27 of the Indian Evidence Act. Section 27, Evidence Act, is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true Sir John Beaumsnt in Pulukuri Kottaya v. R., AIR 1947 Privy Council 67 . We have no reason to disbelieve the statement of PW 3 Kalyan Mal and PW 14 Radhey Syam. Inspits of searching cross-examination nothing has appeared in the statements of these witnesses, which would justify holding that they were not speaking the truth. These very witnesses, who identified the articles at the time of the test identification proceedings, identified them at the stage of trial. There is no earthly reason why PW 4 Mst. Gattu, PW 5 Deve and PW II Mst. Rukma, should make false statements regarding their pledging with Daulat Ram (since deceased) and identifying them. The accused has not claimed these ornaments a-his own Thus, from the statements of Chand Mal PW 6, Mst. Gattu PW 4, Deva PW 5 and Mst. Rukrna PW II it stands proved that the ornaments Ex. A/ 2, Ex. A/6, Ex. A/7, Ex. A/8 and `Pachhewara' Ex. A/15 disappeared from the shop of the deceased. From the statements of the investigating officer and other Panchnama witnesses as already noted above it further stands established that they, concealed in fodder, were recovered at the instance of accused appellant Hari Shanker. A/ 2, Ex. A/6, Ex. A/7, Ex. A/8 and `Pachhewara' Ex. A/15 disappeared from the shop of the deceased. From the statements of the investigating officer and other Panchnama witnesses as already noted above it further stands established that they, concealed in fodder, were recovered at the instance of accused appellant Hari Shanker. It is well settled that in case where murder and robbery form integral part of the transaction, unexplained possession of the stolen property would be presumptive evidence on a charge of theft with murder. The real question, therefore, is whether the evidence in the case on hand establishes that appellant murdered Daulat Ram deceased and committed theft in the shop. 17. That apart, the other important circumstance proved against the accused is the recovery of`Pachhewara' Ex. A/15, which was found to be stained with human blood and the Serologist noticed that the blood found on the `Pachhewara' was of `B' group blood. The group of the blood on the towel recovered from the shop of the deceased just after the occurrence was also `B' group blood. PW 13 Surendra Kumar stated that just after the occurrence he reached the shop of Dault Ram and prepared a site plan. There he recovered many other articles and a towel. This witness has not identified the towel in the Court. Wherever it is desired by the prosecution that certain articles which are either recovered at the instance of the accused persons or from the scene of occurrence and are to be identified or to be sent for chemical examination for analysis, it is necessary that the recovering the articles should immediately take steps to seal them and evidence should be produced that the seals were not tampered with till the identification is over or till the articles are sent to the Chemical Examiner for analysis. In the absence of such precaution it would always be open to the accused to say that the police put human blood on the articles in order to implicate the accused. It is, therefore, necessary for the prosecution to produce evidence that steps were taken at once to seal the articles and that from the time the articles came into possession of the police to the time they were sent for identification before the Magistrate or for examination to Chemical Examiner, the seals remained intact. It is, therefore, necessary for the prosecution to produce evidence that steps were taken at once to seal the articles and that from the time the articles came into possession of the police to the time they were sent for identification before the Magistrate or for examination to Chemical Examiner, the seals remained intact. In the case heard, there is evidence regarding seals being put on the `Pachhewara', Ex. A/15, at the time of seizure. It was sent to the Magistrate for identification purpose, but there is no evidence on record as to whether after the identification of the `Pachhewara' it was sealed by the Magistrate or by the Sub-Inspector and the seals so put were found intact by the Incharge of the Police Forensic Science Laboratory. This evidence is missing in this case A Division Bench of this Court in State v. Motia (supra) presided by the then Chief Justice Hon'ble Wanchoo, C.J. in somewhat similar circumstances observed as under:- "It is, of course, not difficult to sprinkle few human blood stains on articles recovered if somebody wants to do so." We do not say that this had been done in the present case. But as no precautions in this direction had been taken, the argument raised on behalf of the accused that this might have been done remained unrefuted. Under these circumstances, we find that we cannot place the same reliance on the discovery of blood stains on these various articles as we would have done, if necessary precautions had been taken. However, on the parity of reasoning it can be said that the recovery of `Pachhewara' cannot be of much consequence to the prosecution to hold that murder and the theft took place during the course of the same transaction. 18. The prosecution in this case has produced no evidence to show that any of the above noted ornaments were in the shop on the night of the occurrence. The list of the missing ornaments filed by PW 6 Chand Mal was held to be hit by Section 162, Cr.P.C., as it was produced after the investigation had started. 18. The prosecution in this case has produced no evidence to show that any of the above noted ornaments were in the shop on the night of the occurrence. The list of the missing ornaments filed by PW 6 Chand Mal was held to be hit by Section 162, Cr.P.C., as it was produced after the investigation had started. Besides, there is nothing to hold as to when the stolen articles recovered at the instance of accused Hari Shanker were seen by any of the prosecution witnesses lying in the shop of the deceased, In the absence of such evidence the possibility that the ornaments may have been stolen earlier cannot be ruled out. The recovery in this case i took place after 14 days of the occurrence and the possibility of these articles to have passed from thief or murder to receiver cannot be ruled out. In Nathu v. State of Uttar Pradesh, AIR 1956 Supreme Court 56 . it has been observed by their Lordships of the Supreme Court that : "Confessions of co-accused are not evidence as defined in S. 3 and no conviction can be founded thereon, but if there was other evidence on which a conviction can be based, they can be referred to as lending assurance to that conclusion and for fortifying it." The recovery of these articles from the possession of accused Hari Shanker would not, in our opinion, necessarily lead to the inference that he must be the person who committed the theft and murder. The confession of the co-accused cannot be used as an independent evidence against accused-appellant Hari Shanker. It can be used for landing support to the prosecution case. 19. In the facts and circumstances of case, we do not consider it safe to uphold the convictions of accused-appellant Hari Shanker under Section 302/34, 394 and 452 I.P C. We acquit him of the aforesaid charges and set aside the sentences awarded to him under those counts. We, however, hold him guilty for offence punishable under Section 411, I.P.C. and sentence him to three years' rigorous imprisonment. There may be a suspicion that accused Hari Shanker did commit the murder of Daulat Ram, but suspicion howsoever strong cannot take the place of proof, particularly when the entire case depends upon circumstantial evidence. 20. We, however, hold him guilty for offence punishable under Section 411, I.P.C. and sentence him to three years' rigorous imprisonment. There may be a suspicion that accused Hari Shanker did commit the murder of Daulat Ram, but suspicion howsoever strong cannot take the place of proof, particularly when the entire case depends upon circumstantial evidence. 20. The net result of the above discussion is that appeal filed by accused-appellant Bakshu Ram fails and is hereby dismissed. The convictions and sentences awarded to him are upheld. The appeal filed by accused-appellant Hari Sharker is partly allowed as indicated above. It is, however, made clear that accused-appellant Hari Shanker shall be entitled to the benefit of Section 428 Cr.P.C. and the period of detention undergone by him during investigation, inquiry or trial shall be set off against the term of imprisonment awarded to him by this Court.Order accordingly. *******