JUDGMENT 1. - The accused-appellant Babuda was convicted by the learned Sessions Judge, Jalore for the offences under sections 302, 307, 380 and 460, I.P.C. by this judgment dated June 30, 1981. He was sentenced to death under section 302, I.P.C. under section 307, I.P.C. he was sentenced to 10 years' rigorous imprisonment and to a fine of Rs. 2000/- in default of payment of fine to undergo 3 years rigorous imprisonment, under section 380, I.P.C., he was sentenced to 5 years rigorous imprisonment and to a fine of Rs. 1000/-, in default of payment of fine to undergo 2 year rigorous imprisonment and under section 460, I.P.C. he was sentenced to 10 years rigorous imprisonment and to a fine of Rs, 2000/-, in default of payment of fine to undergo 3 years rigorous imprisonment. The sentences other than death were ordered to run concurrently. He made a reference to this Court for confirmation of sentence of death and the accused-appellant has also preferred an appeal against his convictions and sentences through jail. 2. The prosecution case, in brief, is that on the night intervening 13th and 14 July, 1980, the deceased Manshaji and his wife Smt. Gangadevi P.W. 2 were sleeping in the chowk of their house. P.W. 18. Pukhraj, son of the deceased Manshaji and his wife Smt. Phau P.W. 1 were sleeping up stairs, At about 1 a.m. in the night, the deceased raised an alarm "Chor Chor". Thereupon, Smt. Gangadevi P.W. 2 got up and saw her husband and the thief grappling with each other. The thief was armed with a sword. He inflicted sword blows on the head and other parts of her husband. When she, went near to the thief, she was also inflicted blows with sword. Her husband fell down and became unconscious. Her son Pukhraj P.W. 18 and his wife, on hearing the alarm, came down from upstairs. The thief had already ran away before Pukhraj came down. Pukhraj opened the door of the house and tried to chase the thief. He saw the thief from his back, while he was running. But the thief made good his escape and out of fear, he returned back. The villagers then were attracted to the scene of occurrence. It was found that the thief had stolen the three pairs of silver karas, which were in a bag hung on a nail. He saw the thief from his back, while he was running. But the thief made good his escape and out of fear, he returned back. The villagers then were attracted to the scene of occurrence. It was found that the thief had stolen the three pairs of silver karas, which were in a bag hung on a nail. It was found that a Gyali of a plough was lying by the side of the wall by the support of which, the thief scaled the wall. Pukhraj then went to the police out-post, Ramsin and lodged a written report Ex.P/18 at 2.30 a.m., which was received by the Station House Officer, Tejraj, P.W. 30 and he forwarded the same through the foot Constable Bhanwarsingh, P.W. 25 for registration of the case to the police station, Modhra. The Head-constable, then incharge of the police station, registered the case. The S.H.O. then recorded the statement of Pukhraj and proceeded to the spot in the night. He found Manshaji and his wife lying in an injured condition and the blood was lying at various places. He also found on the spot one black scabbard and one red chundari turban. A piece of towal was stitched to the lower portion of the scabbard. The injured were sent to the Jalore Hospital. Police was deputed to guard the site in the night and in the morning, the S.H.O. prepared the site-plan Ex.P/4. He conducted the spot investigation. He seized the red chundari turban (Art. 10), scabbard (Art. 31) and a piece of towel (Art. 32). He also recovered some blood-stained containers, pillow cover, and cover of cushion and gyali of plough. He was informed by Mahipal Master that one bag is lying in the bara of Onkar near to the house of the deceased. Thereupon, he visited the bara and recovered the bag, which contained a pair of shoes and a piece of towel, two bundies and one underwear vide memo Ex.P/16. All the clothes were put into the bag and the bag was packed and scaled. Manshaji died on the way. Thereupon, an offence under section 302, I.P.C. was added. From the investigation, it was revealed that one Babuda used to move about tying red chundari turban with a sword having a black sheath and a piece of towel was tied to that sheath. Manshaji died on the way. Thereupon, an offence under section 302, I.P.C. was added. From the investigation, it was revealed that one Babuda used to move about tying red chundari turban with a sword having a black sheath and a piece of towel was tied to that sheath. On investigation, he also found that on 15-7-80 Babuda boarded the tractor of one Mansiggh and was seen with a naked sword with a cloth wrapped over it. His investigation also revealed that there was one case against him in the court of Bhinmal on 14-7-80 & on that date,the accused-appellant Babuda didnot attend the court As Babuda had remained under trial,so he made investigation from jail officials regarding the clothes, which he used to wear in jail. Then he got the identification of clothes recovered nearby the spot, conducted. As Babuda was a history-sheeter of Bhinmal police station and as he was habituated to indulge in such sort of criminal activity, so the S.H.O. Tejraj sent the Tehrirs to all the police stations for his arrest. He also learnt that one Sattar r/o Bakli had deposited one sword at the police station, Sumerpur. So, he visited the police station, Sumerpur and recovered one sword having red velvet sheeth. He also brought the seizure memo of the sword Ex.P/10 prepared by the S.H.O., Sumerpur.The sword is alleged to have blood-stains. He received an information regarding the arrest of the accused appellant Babuda from the police station, Barlot and he was told that the accused Babude will be produced before the Magistrate at Sirohi. Thereupon, he moved an application to the Munsif Magistrate, Sirohi for affecting his arrest. Babuda was, then, arrested on -9-80 vide memo Ex P/8. On 3-9-80, while he in police custody, the accused Bahude gave information that he had sold the silver karas to Sheshmal Sunar of Sheoganj. Pursuant to that information, the accused got the silver karas recovered from Sheshmal Sunor vide recovery memo Ex. P/17. When the accused was arrested by the police station, Sarlot, a sword with a black sheath was also recovered from him, which was sent by Barlot police station to the S.H.O Modhra. The identification of the silver karas Articles 1, 2, 3 and 4 was got conducted. On completion of the investigation, charge-sheet was presented against the accused and the accused was committed for trial to the court of Sessions Judge, Jalore. The identification of the silver karas Articles 1, 2, 3 and 4 was got conducted. On completion of the investigation, charge-sheet was presented against the accused and the accused was committed for trial to the court of Sessions Judge, Jalore. 3. The learned Sessions Judge, Jalore charged the accused-appellant for the offences under sections 302, 307, 380 and 460, I.P.C. The accused, however, pleaded not guilty to the charges and claimed to be tried. 4. In order to prove its case, the prosecution examined in all 32 witnesses, namely; P.W.l Mst.Phan (wife of Pukhraj Sunar and daughter-in -law of the deceased), P.W.2 Mst. Gangadevi (wife of the deceased), P.W.3 Pithmal (brother of Pukhraj and maker of silver karas), P.W.4 Mansingh Rajput r/o Mohabbatnagar, P.W.5 Chhogalal (neighbour of the deceased and a witness of spot investigation), P.W.6 Dungarsingh r/o Moodtara (the witness of spot investigation of `bara' of Onkar), P.W.7 Sachra, P.W.8 Bhuraram, P.W.9 Pradeep Kumar Shah (Munsif & Judicial Magistrate, Bhinmal, who conducted the identification parade of silver karas), P.W 10 Sattar r/o Bakli, P.W. 11 Mukan Singh (Head Warder, Sub-jail, Bhinmal), P.W.12 Ram Kumar (Assistant Jailor, Bhinmal), P.W. 13 Muradkhan (Constable, Subjail Bhinmal), P.W. 14 Amritlal, P.W. 15 Sheshmal Sunar r/o Sheoganj, P.W. 16 Tejaram r/o Sheoganj (seller of valvet sheath), P.W.17 Kaloo, P.W.18 Pukhraj (informant), P.W. 19 Dr R.P.Purohit, P.W.20 Dr.Rameshwarlal Bishnoi, P.W 20 Pyarelal (seller of the sword, Act.28), P.W.22 Ganpat r/o Sheoganj (maker of the patta over valvet sheath), P.W.23 Gangasingh r/o Goyali (who is said to have seen the accused with a naked sword and a cloth wrapped over it), P.W.24 Himmatsingh r/o Kerab (who is said to have slept on the `Dera' of Lochhusingh having a naked sword with a cloth wrapped over it), P.W.25 Bhanwarsingh r/o Chaurau Tehsil Jalore (S.H.O. Barlot), P.W. 26 Amruddin (S.H.D. Police Station, Sumerpur', P.W.27 Motilal (Motbir of recovery of karas), P.W.28 Poonama r/o Komta (who is said to have come to his bara on the night of occurrence and slept there and was seen wearing a red chunderi turban and a sword having a black sheath and a cloth wrapped over it), P W.29 Sajjansingh (Constable, Police Station, Modhra), P.W.30 Tejsingh Raj (S.H.D. Modhra', P.W.31 Prithvi Singh, Circle Officer, Bhinmal (to whom, information regarding the four silver karas Ex.P/30 was given), and P.W.32 Bhimsingh (Assistant Sub-Inspector, Police Station, Jalore). 5. 5. The statement of the accused-appellant was recorded under section 313, Cr.P.C. in which, he denied the entire prosecution case. However, he admitted that he was in Bhinmal Jail from February 1980 to June, 1980. He also admitted that he was brought by Shri Tejraj, S.H.O. P.W.30 of police station, Modhra from Munsif Court, Sirohi, after making his arrest. He further stated that he had made a complaint against the S.H.O. Tejraj of police station, Modhra and the Circle officer to the Inspector General of Police. He was arrested by Barlot police on 16.8.80. But, his arrest was not shown and was produced before the Magistrate, Sirohi on 20.8.80 and he made complaint to the Magistrate that he was kept under arrest for a period of 2 months' and an attempt was made to foist the murder of the Gram Sewak of Moodtara on him, but the police could not involve him as at that time he was in jail. After that, he has been falsely involved in this case. He stated that he does not know the witness Sattar and that the witness Man-singh, had given false evidence against him in the Sub-Divisional Officer's Court, Sirohi, in which, he was discharged. He pleaded.innocence. 6. The learned Sessions Judge, after hearing the arguments, convicted and sentenced the accused-appellant Babuda m aforesaid. The learned Sessions Judge in para 15 of the judgment found the accused guilty of the offences with which he was charged on the basis of the following circumstances:- (1) The accused was found wearing red Chundari turban with a sword having black sheath near to the place of occurrence. (2) The accused left his turban and black sheath on the spot. (3) The accused committed theft of the four silver karas of Mst. Phau P.W.l, which he had sold to Sheshmal Sunar of Sheoganj. (4) The clothes of the accused were recovered on the next morning from near the place of occurrence which were identified by the jail officials on 24.7.80 to be that of the accused. (5) The accused was seen with a naked sword which was handed over to Sattar. & P.W. 10 in a red valvet sheath which was sold by P.W.21 Pyarelal and the patta of which was prepared by Ganpat P.W.22. 7. (5) The accused was seen with a naked sword which was handed over to Sattar. & P.W. 10 in a red valvet sheath which was sold by P.W.21 Pyarelal and the patta of which was prepared by Ganpat P.W.22. 7. As a result of the conviction and death sentence of the accused, reference has come up for confirmation and an appeal has been filed by the accused-appellant Babuda through jail. 8. We have heard Mr. A.K. Mathur, learned counsel for the accused-appellant and Mr. M.D. Purohit, learned Public Prosecutor for the State and perused the record of the case carefully. 9. At the very out set, we may state that there is no ocular evidence in the case as the witnesses to the scene of occurrence have not identified the burgler. It is not in dispute and it cannot be disputed that in the night intervening 13th and 14th July, 1980, an un-identified man entered into the house of the deceased, inflicted sword blows both on the person of Manshaji and his wife Mst. Gangadevi, as a result of which, Manshaji died and Mst. Gangadevi sustained grievous injury on her person and that burglar took to his heels after committing theft of the four silver karas belonging to Mst Phau, which were lying in a bag hanging over the nail. 10. The sole question, in the present case, is regarding the identity of that person. It is to be seen as to whether the prosecution has been successful in connecting the offence to the accused and for that, the prosecution relies on the circumstantial evidence. What circumstances are proved in the present case and whether those proved circumstance bring home the guilt to the accused beyond reasonable doubt is a further question to be seen in this case. 11. Before dealing with the circumstantial evidence, it would be proper to take notice of the injuries caused to the deceased and Mst. Gangadevi. Dr. Rameshwarlal Bishnoi P.W. 20 conducted the autopsy on the dead-body of Manshaji and he found the following injuries on his person : 1. Incised wound 2/6/8" x 1" depth-half thickness of bone A chip of bone is cut off 1" x 1/2" present in the wound. Oblique from superomodial to inferolateral-on fore-head 1/2" above left eye brow and 1/2" left to mid-line. 2. Irregularly curved-Incised wound 7" long bone deep-whole flap hange down and contained the pinna-Lt. Incised wound 2/6/8" x 1" depth-half thickness of bone A chip of bone is cut off 1" x 1/2" present in the wound. Oblique from superomodial to inferolateral-on fore-head 1/2" above left eye brow and 1/2" left to mid-line. 2. Irregularly curved-Incised wound 7" long bone deep-whole flap hange down and contained the pinna-Lt. ear is cut off and is present with the hanging skin flap. Wound anteriorly 11/2' from the left eye upto back of neck. Upto 1/2" short to mid-line. On left side no bone fracture or cut. All superficial vessels are cut. 3. Incised wound 4" x 2" x 2" deep-antero-posterior-on left side of root of neck-posteriorly extending upto 1/2" right to midline. Left Trapozine muscle is cut across-spine of 7th verterae is felt in the posterior part of wound. 4. Incised wound 31/2" x 6/8" x bone deep oblique from postero superior to infra-lateral; overlying left 9th, 10th and 11th ribs posteriorly-2" left to mid-line. 5. Incised wound 4" x 2" on interior aspect of left log 3" above ankle joint line. Direction superomedial to inferoleteral, crossing the mid-line. Depth - Anterior tibial vessel are torn Tibia is cut upto its half thickness and rest is fractured. Fibula is fractured food and lower portion of log hanging with posterior muscle group with a 4" wide skin flap. 6. Incised wound 41/2" x 2" skin thickness deep on ulner border of left forearm, vertical 2" above wrist joint line. 7. Incised wound starting web space of left hand and separating the 3rd and 4th metacarpals upto 21/2". Inter digital ligaments between heads of 3rd and 4th mate-carpels bones is out. He was of the opinion that the injuries on the person of the deceased could be caused by weapon like sword and according to him, the cause of death was syncope, as a result of hemorrhage due to the injuries. Comulatively, the injuries were sufficient in the ordinary course of nature to cause death. 12. He found the following injuries on the person of Mst. Gangadevi. The injuries on her person also could be caused by sword:- 1. Incised wound 4" x 1" x 1 2/8" deep on left side of root of antero-posterior neck. Anterior and ovalis-sterno mastoid, muscle 3" below mastoid Left Bracheal pluous is cut across. Facial vain and superficial vessels are severed. Corotid artrary and jugular vain are intact. 2. Gangadevi. The injuries on her person also could be caused by sword:- 1. Incised wound 4" x 1" x 1 2/8" deep on left side of root of antero-posterior neck. Anterior and ovalis-sterno mastoid, muscle 3" below mastoid Left Bracheal pluous is cut across. Facial vain and superficial vessels are severed. Corotid artrary and jugular vain are intact. 2. Incised wound 5" encircling left wrist and palm-wrist joint is intact. Intercorpal joints dis-located (between proximal 4 distal series of carpal bones) scaphoid bone is fractured, Radial artrary and the tendone of all the long flexor muscle are cut across. Depth-hand is hanging only with tandoue of long extens or muscles and 3" posterior flap of skin. 13. She was also examined by Dr. R P. Purohit, Medical Jurist. According to him, there was a complete loss of muscle power of the left arm. Mst. Gangadevi had complete loss of power of muscle at left shoulder joint, elbow joint, wrist joint and finger. There was total paralysis of left upper limb because of injury No. 1 of injury report No. 154/80 issued on July 14, 1980 by Dr. R.L Bishnoi. Injury No. 1 was. therefore, grievous. 14. The most material connecting evidence in the present case is the recovery evidence of silver karas Articles 1 to 4 and their identification. The accused-appellant Babuda was arrested on 1-9-80 and on 3-9-80, he gave an information regarding the silver karas Ex.P/30 that he had disposed of the four silver karas to Sheshmal Sunar of Sheoganj. The information was given to Prithvisingh, Circle Officer, Bhinmal P.W. 31. He has proved the information memo Ex.P/30. The accused was brought to Bhinmal by the S.H.O Tejraj and during investigation, the accused gave the information to him,. The information was got recorded by P.W. 31 Prithvisingh from Tejraj. S.H O. Thereafter, the accused took them to Sheshmal Sunar of Sheoganj and got the four silver karas recovered. The four silver karas were lying in the show-case of Sheshmal Sunar. The information memo Ex P/30 is also proved by the S.H.O. Tejraj P.W. 30, who also proved the recovery of the silver karas at the instance of the accused through recovery memo Ex. P/17. The recovery further stands proved by the testimony of Sheshmal Sunar of Sheoganj P.W. 15 and Motilal P.W- 27. Motilal is a motbir witness of Sheoganj. The information memo Ex P/30 is also proved by the S.H.O. Tejraj P.W. 30, who also proved the recovery of the silver karas at the instance of the accused through recovery memo Ex. P/17. The recovery further stands proved by the testimony of Sheshmal Sunar of Sheoganj P.W. 15 and Motilal P.W- 27. Motilal is a motbir witness of Sheoganj. He was taken as a motbir by the police. According to him, the accused took them to the shop of Sheshmal Sunar and got the silver karas recovered from him. After the recovery, the silver karas were packed and sealed in the presence of motbirs. P.W. 27 Motilal identified those karas, which were shown to him in the court. Besides proving the recovery, P.W. 15 Sheshmal Sunar also produced an entry in his books of account relating to the transaction of purchase of the silver karas. According to him. the silver karas weighted 190 grams and he purchashed them on 16-7-80 at about 10 to 12 a.m. at the rate of Rs. 16/-per gram and paid the price of Rs. 300/- to the accused. He proved the rokar entry Ex.P/16. He gave the copy of the Rokar, Ex.P/16A to the police. He also identified the silver karas, which were recovered from his possession. Thus, from this evidence, it is amply proved that on the information and at the instance of the accused, the four silver karas were recovered from Sheshmal Sunar of Sheoganj. 15. Besides that there is the evidence relating to the identification of the silver karas. Mst. Phau PW 1 has stated that her silver karas were prepared by her jeth. She identified the four silver karas in Bhinmal court. The prosecution has also examined Pith Mai, the jeth of Mst. Phau, who prepared the silver karas in question. He stated that he himself had prepared the four silver karas for the wife of Pukhraj. He proved his signatures on the identification memo Ex. P/3. The four silver karas were of two different designs. The witness has been very categorical when he stated that the karas were prepared by him, so he can identify them, even if, they are mixed in hundreds of such karas According to him, Articles 1 and 2 are of one design and Article 3 and 4 are of other design. PW. The witness has been very categorical when he stated that the karas were prepared by him, so he can identify them, even if, they are mixed in hundreds of such karas According to him, Articles 1 and 2 are of one design and Article 3 and 4 are of other design. PW. 9 Pradeep Kumar Shah, Munsif and Judicial Magistrate conducted the identification proceedings of the silver karas on 9-9-80. He has proved the identification memo Ex P/3. According to him, slight similar karas were mixed and both Pithmal and Mst. Phau identified them. He stated that the sealed packet of the silver karas brought by the S.H O. Shri Tejraj, was opened by him. A un-successful attempt has been made by Mr. Mathur, learned counsel for the accused-appellant, to discredit the entire recovery and identification-evidence. We find that the evidence of recovery and of identification of silver karas is credible and inspires confidence. Sheshmal and Motilal are independent witnesses. The transaction of sale of karas to Sheshmal further finds corroboration from the Rokar entry Ex P/16. It records the name of the accused as the seller of the silver karas and Sheshmal put them in the show-case and so that the same can be disposed of. Sheshmal could only be spotted on the basis of the information given by the accused. The recovery of silver karas from Sheshmal lends credibility to the information given by the accused to the police. Thus, it is only, in consequence of the information that recovery of the karas could be effected. Further the evidence of identification of the silver karas by Mst. Phau and Pithmal is unassailable. Pithmal was the maker and Mst Phau is the user of the silver karas. It was natural for them to have identified the silver karas. Thus, it is amply proved from the evidence on record that after the arrest of the accused, in pursuance of the information given by the accused and at his instance the silver karas were recovered from Sheshmal and recovered karas were correctly identified and that the silver karas belonged to Mst Phau. 16. Another circumstances, which we find incriminating against the accused and which is very material and assume great significance, is that the accused-appellant was required to appear in the court of Munsif and Judicial Magistrate, Bhinmal on 14-7-80. 16. Another circumstances, which we find incriminating against the accused and which is very material and assume great significance, is that the accused-appellant was required to appear in the court of Munsif and Judicial Magistrate, Bhinmal on 14-7-80. But on that date, he absented at the risk of forfeiture of the bail-bonds The absence assumed significance, in view of the fact that the occurrence took place on the previous night and it was this circumstance that gave rise to great suspicion in the mind of the investigating officer Tejraj S.H.O. has stated that 14-7 1980 was fixed in the case in the court of Munsif Magistrate, Bhinmal and on that date, the accused did not appear in the court A question, in this regard was put to the accused in his statement, but the accused gave no explanation and in answer to question Not. 5, he simply stated that it is all wrong. Mr. Mathur urged that specific question was not put to the accused. The question No. 54 was a lengthy and composite question In the absence of specific question, it should not be expected from the accused to have given any explanation for his absence from the court on 14-7-80. He submitted that in the absence of specific question, this circumstance should not be employed against the accused as the accused would be seriously prejudiced. We are unable to agree with the submission of Mr. Mathur It is true that the question No. 54 is a detailed one and it pertains to the entire investigation, conducted by the S H.O. Tejraj. What was material for the accused in question No. 54, was the circumstance of his absence on 14-7-80, more particularly, when the S.H.O Tejraj has stated that the suspicion rose high on account of his non-appearance. The accused in question No 54 has admitted one part that he was arrested by the S.H.O. from Munsif Magistrate's court That being so, he could have also offered explanation, if he had any, with regard to the fact of his non-appearance on 14-7-80 in Bhinmal Court The accused simply contended by stating that the facts stated in question No. 54 are all wrong. Thus, it can not be said that any prejudice has been caused to the accused by not putting a separate independent and specific question with regard to his non-appearance on 14-7-80 and in our opinion, this circumstance can legitimately be pressed into service by the prosecution against the accused. 17. Besides that, there is another material circumstance, which has come in the evidence of Mansingh P.W. 4 and Himmatsingh P.W. 24 Mansingh has stated that some 7-8 months ago, he was going from village Mohabbatn-nagar to village Atwara on tractor. On the way, the accused along with one unknown person were standing. The unknown man asked him to stop his tractor. Thereupon, he stopped his tractor and he further asked him to take the accused on his tractor to the village Posaliya. The accused boarded his tractor. When he turned back-wards, then he identified him as Babuda. According to P.W. 4 Mansingh the accused had a naked sword with a cloth wrapped over it and he was bare-headed. He has also stated that the accused-appellant used to loiter in suspicious circumstances. Once the police had arrested him and he was a motbir of his arrest. The witness knew the antecedents of the accused When he identified the accused as Babuda, on turning back-ward, he put a question to the accused as to how he came over there. The accused then immediately got down from the tractor and ran away towards the hills. In cross-examination, this witness has stated about the antecedents of the accused that once, he gave out his name as Ramsingh and his name is Babuda was known to him only when the S.H.O. addressed him as Babuda. Babuda is a history-sheeter. What is material in the statement, is that the witness in his police statement Ex. D/3 gave out the date of his meeting, the accused as 15-7-80 Ex. D/3 was recorded on 18-7-80 much earlier to the arrest of the accused. 15-7-80 is the day, following the day of occurrence i.e. following the day of non-appearance of the accused in the court of Bhinmal There is no reason to disbelieve the testimony of Mansingh P.W. 4. The conduct of the accused again raises a great suspicion and is incriminating. There was no reason for the accused to have got down from the tractor immediately on being asked as to how he happened to be there. The conduct of the accused again raises a great suspicion and is incriminating. There was no reason for the accused to have got down from the tractor immediately on being asked as to how he happened to be there. The immediate reaction on the question put to him, shows his guilty conscious and he might be afraid that he may not be got apprehended as he might be in possession of the stolen property. Mr. Mathur tried to support the conduct of the accused in view of the fact that the witness was once instrumental in his arrest and was a motbir of his arrest. It may be pointed out that, that matter was 12 months old and there was no reason for the accused to feel apprehensive on 15-7-80 on that basis. Instead of answering to the question of the witness and giving explanation as to how he happened to be there, the accused got down from the tractor without notice and ran away. Such a conduct on the part of the accused appears to be abnormal and incriminating and it deserves to be taken into consideration along with other circumstances. 18. P.W. 4 Himmatsingh has also stated that some 10 months ago the accused came on the `Bera' of Lachhu Singh and stayed at the Bera in the night. At that time he had a naked sword with cloth wrapped on it and in the morning went towards Sheoganj and Bharudra. His statement went uncrossed. Statement of P.W. 4 is corroborated by P.W. 24. 19. Another most material circumstance, which in our opinion, stands proved, is the recovery of the clothes of the accused from the bera of Onkar, situated not far off from the place of occurrence. Relating to this circumstance, there are the statements of P.W. 30 Tejraj, S.H.O. and P.W. 6 Dungarsingh. P.W. 6 Dungarsingh is a motbir witness to the recovery. He stated that the police recovered one bag containing a pair of black shoes, one towel and one under wear, two Bundies and a half piece of soap from the bag lying in the bara of Onkar, situated in the village The underwear (Art. 20). P.W. 6 Dungarsingh is a motbir witness to the recovery. He stated that the police recovered one bag containing a pair of black shoes, one towel and one under wear, two Bundies and a half piece of soap from the bag lying in the bara of Onkar, situated in the village The underwear (Art. 20). Bandi of Chokadi (Art 21) and one white Bandi (Art. 22) were recovered from the bag Mahipal Master gave the information at the time when the spot investigation was going on that one bag is lying in the bara of Onkar. It is on this information that the S H.O. Tejraj proceeded to the Bara. The S.H.O. has proved the recovery memo Ex. P/6. Mahipal Master and Onkar were also motbir witnesses but they were not examined. Besides this recovery evidence, the prosecution has further examined P.W. 11 Mukansingh P.W.12 Ramkumar and P.W 13 Muradkhan to prove that one Bandi and underwear, are of the accused Babuda. The prosecution has also examined P.W. 7 Bechia but his statement is not of any help to the prosecution. He was in the lockup along with the accused. His testimony is to the effect that when Babuda was released from Jalore Jail then he gave the accused one dhoti, and one terri-cot shirt. This witness disowned the police statement with regard to the wearing of chundari turban by the accused. The identification proceeding of the clothes said to be of the accused, recovered from the place of occurrence, was conducted by P.W. 9 P.K. Shah on 24-7-80 vide identification Memo Ex. P/9. P.W. 11 Mukansingh, Head Warder of Sub-jail, Bhinmal stated that the accused remained in jail from February 1980 to June 3, 1980. He identified the underwear Article 20 of the accused In cross-examination, he stated that he identified the underwear of the accused on the basis of personal knowledge. There were only five prisoners in the jail, one was a convict and others were under trials. P.W. 12 Ramkumar is the Assistant Jailor, Bhinmal, he too identified the towel but that towel was not present in the court on that date. Muradkhan P.W 13 identified the underwear (Art. 20) and Bandi or Baniyan (Art. 21). There were only five prisoners in the jail, one was a convict and others were under trials. P.W. 12 Ramkumar is the Assistant Jailor, Bhinmal, he too identified the towel but that towel was not present in the court on that date. Muradkhan P.W 13 identified the underwear (Art. 20) and Bandi or Baniyan (Art. 21). From the evidence of these witnesses, it is proved that the underwear (Art. 20) and Bandi or Baniyan (Art 21) belonged to the accused as they had seen the accused wearing these clothes. The identification of the towel by P.W. 11 Mukansingh and P.W. 12 Ramkumar is meaning less is that towel was not there in the court for identification. 20. The evidence of recovery as well as of identification of the clothes of the accused has been assailed by Mr Mathur on the ground that Mahipal Master and Onkar were the material witnesses and they have not been produced by the prosecution. Besides that, the bara of Onkar is not close to the house of deceased. So, this circumstance of recovery is of no avail to the prosecution and this circumstance should not be considered to be a connecting link. As regards the evidence of identification, Mr Mathur submitted that the evidence of identification is only of Mukansingh and Muradkhan. The underwear (Art. 20) has been identified by both of them. The Bandi or Baniyan (Art. 21) was identified by Muradkhan. He urged that the evidence of these witnesses does not appear to be natural. The underwear (Art. 20) and Bandi or Baniyan (Art. 21) are of common pattern and it was not possible for the witnesses to have identified these clothes, after more than 12 months. We have considered the above criticism of Mr. Mathur on the recovery and identification evidence, but we do not find any substance in it. The prosecution has examined one of the motbir witnesses and it was not essential for the prosecution to have examined all the motbir-witnesses We find the evidence of motbir Dungarsingh P.W. 6 reliable, who has stated that the information was given by Mahipal Master at the spot. Thereupon, he along with the S.H.O. proceeded to the bara of Onkar & the S.H.O. effected the recovery of the containing the aforesaid Articles. In our opinion, the recovery of the articles is amply proved from the statements of the investigating officer and Dungarsingh. Thereupon, he along with the S.H.O. proceeded to the bara of Onkar & the S.H.O. effected the recovery of the containing the aforesaid Articles. In our opinion, the recovery of the articles is amply proved from the statements of the investigating officer and Dungarsingh. It is true that the bara does not adjoin the house of the deceased but it cannot be said that the bara was situated far away from the scene of occurrence. It appears that the accused proceeded to the scene of occurrence leaving his bag at the bara of Onkar, thinking that he will collect it, while returning from the scene of occurrence, he could not collect the same. With regard to the identification evidence, it maybe pointed out that the accused remained in lock up from February 1980, to June 3, 1980. During this period of about 4 months, the witnesses had seen the accused wearing the clothes, which the witnesses identified. Both the clothes are of typical pattern and colour and so it was not difficult for the witnesses to identify them. What is significant, is that the identification took place on 24-7-80 more than a month prior to the arrest of the accused Investigation in this regard was conducted by the Investigating Officer and it is on that basis, the identification was got conducted. Both the identifying witnesses are responsible witnesses and employees of jail There was no occasion for them to have seen the clothes of the accused after their recovery and before their identification. Thus, the identification of evidence inspires confidence and on the basis of the statements of P.W. 11 Mukansingh and P.W. 13 Muradkan, it can safely be found that the underwear (Art. 20 and Baniyan (Art. 21) are that of the accused. There is a bare denial of the accused with regard to these clothes. On the basis of the above evidence, we hold that the two articles namely underwear (Art. 20) and Baniyan (Art. 21) were recovered from the bara of Onkar in the early morning of 14-7-80 and the same were correctly identified to be of the accused on 24-7-80. 21. On the basis of the above evidence, we hold that the two articles namely underwear (Art. 20) and Baniyan (Art. 21) were recovered from the bara of Onkar in the early morning of 14-7-80 and the same were correctly identified to be of the accused on 24-7-80. 21. The learned Sessions Judge has placed reliance on some other circumstances as well, which are that the accused used to wear red chundari turban and used to keep a sword having a black sheath and the accused left his turban and black sheath on the spot. The accused handed over-his sword in a red velvet sheath to P.W. 10 Sattar, which was sold to him by PW 21 Pyarelal and the patta on the velvet sheath was prepared by PW 22 Ganpat. We have been led through the evidence relating to these circumstances and we are of the opinion that the prosecution has failed to prove that the turban and the black sheath found on the spot, were of the accused. Undoubtedly, it is proved that the red chundari turban and a black sheath were found at the spot. But there is no evidence that these two articles found on the spot belonged to the accused. The prosecution has examined PW 28 Poonma. His statement is to the effect that on the night of the occurrence, the accused had come to his `Bera'. At that time, he was wearing red chundari turban on his head and was having a sword in a black sheath with a cloth wrapped over it. As night had fallen, as he sought permission to sleep at his bara. He further stated that he went to sleep, he does not know when the accused left the `Bera' in the night. The turban and the sheath were not shown to this witness for identification. There is no other evidence on record to prove that the two articles were of the accused. In the absence of such evidence, it can not be found that these articles recovered from the spot are of the accused. The general evidence that the accused used to wear the red chundari turban and was having a sword with a black sheath, is of no help to the prosecution. In the absence of such evidence, it can not be found that these articles recovered from the spot are of the accused. The general evidence that the accused used to wear the red chundari turban and was having a sword with a black sheath, is of no help to the prosecution. Unless, it is proved that the two articles recovered from the spot belonged to the accused, this circumstance can not be pressed into service by the prosecution to connect the accused with the commission of the offence. It is significant to note that in this case, two swords have been recovered contained in two sheaths, one sheath is of red volvent and other sheath is a black one and there is a third sheath Art 31 recovered from the spot as stated by Tejraj, SHO. The two motbir-witnesses of spot investigation were not shown the sheath recovered from the spot. PW 5 Chhogalal identified the sheath (Art. 11) and PW, 6 Dungarsingh has likewise identified the sheath (Art. 11) to be the sheath, which has been recovered from the spot. There is clear infirmity in the statements of PW 5 Chhogalal and PW 6 Dungarsingh regarding the identification of the sheath, which has been recovered from the spot. A discrepancy has occurred in their testimony and the testimony of Tejraj, SHO. On account of this discrepancy, it can not be held as proved that Article 31 was recovered from the spot. The prosecution has tried to present the case that the sword delivered to Sattar, was the sword having blood-stains and it was in respect of this sword that a velvet cover was got prepared by the accused. For our satisfaction, we examined as to whether the sword said to have been delivered to PW 10 Sattar by the accused fits in, in the black sheath Article 31 recovered from the spot. The sword with red velvet colour is Article 26. On examination, it was found that Article 26 does not properly fit in the sheath recovered from the spot. Its edge portion was found protruding out of the black sheath. An explanation has been tried to be offered that because of such a condition of the sword and the sheath, the accused used to keep a cloth wrapped on it. On examination, it was found that Article 26 does not properly fit in the sheath recovered from the spot. Its edge portion was found protruding out of the black sheath. An explanation has been tried to be offered that because of such a condition of the sword and the sheath, the accused used to keep a cloth wrapped on it. It may be pointed out that the sword Article 26 does not even properly fit in Article 31 Even if, is taken that it was so and on that account, the accused used to wrap a cloth over it, still the prosecution has utterly failed to prove that the black sheath recovered from the spot belonged to the accused, Besides that, the evidence of PW 10 Sattar, PW 21 Pyarelal and PW 22 Ganpat is of no help to the prosecution. The sword delivered by Sattar to the police, was not found having any blood-stains. There is no report, placed on record of the Chemical Examiner in this behalf. The report of Serologist is to the effect that the blood-stains on sword are disintegrated and their origin cannot be determined. Even if, it is found that the sword produced by Sattar, had blood-stains, still according to the Serologist's report, the blood-stains were not capable of examination as they were dis-integrated. We need not discuss the testimony of PW 10 Sattar, PW 21 Pyarelal and PW 22 Ganpat, and their criticism levelled by Mr. Mathur, as in our opinion, the circumstance of the sword having been left by the accused with Sattar is not of much consequence, in view of the fact that nothing incriminating is proved in respect of the sword. What was material for the prosecution was to prove that the red chundari turban and the black sheath belong to the accused but the prosecution has failed to prove it as already stated above. 22. Now the question arises as to whether the proved circumstances connect the accused with the commission of the offence. We are clearly and firmly of the opinion that the proved circumstances fully connect the accused with the commission of the offence. There is a continuous chain of circumstance leading to this irresistible conclusion, leaving the antecedents of the accused, apart. The occurrence in the present case took place on the night intervening 13th and 14th July, 1980. We are clearly and firmly of the opinion that the proved circumstances fully connect the accused with the commission of the offence. There is a continuous chain of circumstance leading to this irresistible conclusion, leaving the antecedents of the accused, apart. The occurrence in the present case took place on the night intervening 13th and 14th July, 1980. The accused was to appear in the court on 14-7-80, but he absented on that date and no explanation was offered by him. On the next day, he was seen with a naked sword having a a cloth wrapped over it and bare headed by Mansingh and on being questioned, he got down from the tractor and ran away. His statement is corroborated by PW 24 Himatsingh. On the next day i.e. 16-7-80, he disposed of the booty i.e. silver karas to Sheshmal Sunar of Sheoganj. The presence of the clothes of the accused in the early morning of 14-7-80 near to the scene of the occurrence, further go to point out that the accused was in the village, on the night intervening 13th and 14th July, 1980. Thus, the prosecution has been able to prove by clear, cogent and reliable evidence, the aforesaid circumstances and they lead to no other conclusion except that it was the accused and the accused alone, who entered into the house of the deceased and inflicted sword blows on the deceased Manshaji and his wife Mst. Ganga-devi PW 2 and took away the four silver karas lying in a bag over the nail in the house. The recovery of the silver karas on the information and at the instance of the accused, which are the subject-matter of theft goes a long way, in the absence of any explanation by the accused, to establish that it was the accused, who committed the offence of theft and the offences of causing injuries to the person of the deceased resulting in the death of Manshaji and the injuries on Mst. Gangadevi PW 2. 23. In Pooran v. The State of Rajasthan, 1978 RLW 272 a part of the gold chain had dis-appeared from the neck of the deceased and was recovered at the instance of the accused from a field, where he had concealed it. The recovery was made within a short time of the occurrence i.e. within two days of the crime. 23. In Pooran v. The State of Rajasthan, 1978 RLW 272 a part of the gold chain had dis-appeared from the neck of the deceased and was recovered at the instance of the accused from a field, where he had concealed it. The recovery was made within a short time of the occurrence i.e. within two days of the crime. In that case, this question was considered as to whether the recovery of the gold chain itself establishes that the appellant murdered Nawabsingh and robbed him of the gold chain. The Division Bench considered the cases : Emperor v. Chintamani, AIR 1956 S.C. 400 ; Wasim Khan v. The State of Uttar Pradesh, AIR 1956 S.C. 400 . State of Rajasthan v. Nanuram, 1977 RLW 241 ; Tulsiram v. State, AIR 1954 S.C. 1 ; Baiju v. State of Madhya Pradesh, AIR 1978 S.C. 522 and Queen Empress v. Sami, ILR 13 Mad. 426 . 24. In Baiju's case supra, it was observed that recent and unexplained possession of stolen articles can be taken to be presumptive evidence of the charge of murder as well. Before drawing such presumption, the court should ask itself a subjective question whether it is content to let the conviction stand or whether there is a lurking doubt in the Court's mind, which makes it wonder whether an injustice has been done. It is a reaction, which may not be based strictly on the evidence as such but can be produced by the general facts of the case as the court experiences it. Observations to that effect have been extracted from an authority in Pooran's case supra As considered above, we have absolutely no lurking doubt in our minds rather we feel convinced from the evidence on record, discussed above by which circumstances have been found proved, that it is the accused alone and none-else, who is responsible for the commission of the offence of murder as well as of theft and in our opinion, the accused-appellant Babuda has been rightly convicted of the offences with which he was charged. 25. Coming to the question of sentences, we are of the opinion that the sentence of death, in the circumstances of the case is not called for. 25. Coming to the question of sentences, we are of the opinion that the sentence of death, in the circumstances of the case is not called for. The special reasons assigned by the learned Judge are, one that the accused-appellant was earlier convicted for the offence under section 411, IPC., although, the accused-appellant was charged for the offence under sections 457 & 380 IPC vide judgment Ex P/31 and another reason is the manner, in which the occurrence took place and the motive for which, the death of Manshaji was caused and injuries were inflicted on Mst. Gangadevi PW 2. In our opinion, the reasons given by the learned Sessions Judge are not sufficient, which may warrant awarding death sentence. 26. We, therefore, reject the references for confirmation of the sentence of death and instead award, the sentence of imprisonment for life for the offence under section 302, IPC and maintain the convictions and sentences awarded to the accused-appellant Babuda for the offences under sections 307, 380 and 460, IPC. The sentences have already been ordered to run concurrently. Consequently, the appeal of the accused-appellant Babuda is dismissed subject to the commutation of sentence for the offence under section 302, IPC.Appeal Dismissed. *******