JUDGMENT 1. - This is D. B. Criminal Reference No. 5/82 State v. Sua, made by the learned Sessions Judge, Tonk under section 366 (1) Criminal Procedure Code for confirmation of the sentence of death awarded by him to the accused Sua; vide his judgment, dated 12/ 13th May, 1982. The convict has also filed jail Appeal No. 186/ 1992 and D. B. Cr. represented appeal No. 190/82, challenging the conviction and sentence awarded by the trial court. Both the reference and the appeal are disposed of by common judgment. 2. Succinctly put, the prosecution case, as disclosed at the trial, is that the accused Sua stood in need of some money on the date of the occurrence. He was an occultist, Surendra Singh and Kan Singh (since deceased) were under the witchcraft influence of the appellant. The appellant created an impression in the near-about area that he was imbibed with certain supernatural powers. An idol of Lord Shiva was dug out of the earth and the same installed on a Chabutara'. Subscriptions were collected and subsequently a temple was constructed. He got the news circulated through Radheyshyam, Harinarain and others that Lord Shiva some times appeared in human form before his devotees in the temple. Rumours were also transmitted to the effect that Lord Shiva expressed himself through Sua and that if any person was in any difficulty or trouble, he should give details of his trouble in writing and put the same near the idol Lord Shiva would remove his difficulty, cure his disease and would also answer the quarries made in writing. The appellant informed Kansingh that his son was likely to meet premature death and as such chanting of "Mantras" be arranged and 'Hawan" should be performed. As both Kansingh and Surendra Singh were hypnotised by the super-natural activities of Sua, Kansingh agreed to do he same and parted with considerable property. Surendra Singh and Kansingh wanted to purchase a tractor. Kansingh left his house with a gold Khangali', a silver plate. a glass of silver, silver "Pandan" and considerable amount of cash as well as some clothes, like bush-shirt, pent etc. Surendra Singh left his house with Rs. 60,000/- and a bag. He was putting on a sandoz and trousers. Accused Sua knew the direction towards which the two deceased were proceeding to purchase the tractor. 3. a glass of silver, silver "Pandan" and considerable amount of cash as well as some clothes, like bush-shirt, pent etc. Surendra Singh left his house with Rs. 60,000/- and a bag. He was putting on a sandoz and trousers. Accused Sua knew the direction towards which the two deceased were proceeding to purchase the tractor. 3. In the intervening night of the 9th and 10th of June, 1980, Kansingh and Surendra Singh were done to death. Khema Banjara P. W. 59 was informed by village boys residing in his 'Dhani' that two dead bodies were lying in the "Khal" of Chandsen Dam. Thereafter, Khema and other villagers went towards the Khal'. They saw two dead bodies of unknown persons, whose eyes found tied with clothes. Only under wears were seen on the dead bodies. The rest of the clothes and articles were missing. They also noticed injuries on the faces and necks of the dead bodies. After seeing the corpses, Khema went to the Police station, Diggi and lodged there written report Ex. P. 1 at 10.30 P. M. P. W. 1 Bhagwat Swaroop, SHO Diggi, after recording the formal F. I. R. (Ex. P. 2) on the prescribed form, registered a case under section 302, I. P. C. Thereafter, the S. H. O. Diggi proceeded to the scene of the occurrence. He prepared a site inspection memo Ex. P. 3 and the inquest reports Exs. P4 and P. 5. The blood- stained earth was seized under Exs. P 6 and p 7. Near the dead bodies a pair of teeth was recovered and sealed and seized; vide memo Ex. P. 9. A towel and a 'chaddi' were also removed from one of the dead bodies End the same were sealed and seized; vide Ex. P. 10. The seizure memo of the clothes and 'Chaddi' from the other dead body is marked Ex. P. 11. The dead bodies were sent for postmortem examination; vide Ex. P. 12. The pair of teeth recovered from the spot is marked Article 1. The autopsy on the dead bodies were performed by P. W 24 Dr. M. K Bohra. He noticed four incised wounds on one dead body and 5 incised wounds on the other. P. 11. The dead bodies were sent for postmortem examination; vide Ex. P. 12. The pair of teeth recovered from the spot is marked Article 1. The autopsy on the dead bodies were performed by P. W 24 Dr. M. K Bohra. He noticed four incised wounds on one dead body and 5 incised wounds on the other. In the opinion of the Doctor the cause of death of bath the persons was shock due to hemorrhage, resulting from injuries on the neck and cutting of large vessel', accompanied by tracheal injuries. The type of injuries found on the dead bodies could be caused by the are Article 20. The probable time of death was between 24 and 48 hours prior to the performance of the postmortem examination. The postmortem reports are marked Ex. P 23 and Ex. P. 24 respectively. Photographs of the dead bodies of Surendra Singh and Kan Singh were also taken. They are marked Ex. P. 19 and Ex. P. 20 respectively. 4. When Surendra Singh and Kan Singh did not return for a considerable time, P. W. 20 Raghunath Singh went to Mahasana and Palanpur in search of them. He inquired of them from some hotel-keeper and brokers of tractors, but their whereabouts could not be ascertained. Later on, he came to know that two dead bodies were found lying near the Chandsen Dam. On the request of the witness his brother Vikaramsingh went to Malpura. He brought two photographs Ex. P. 19 and Ex P. 20, which were identified to be those of the dead bodies of Surendra Singh and Kansingh. Raghunath Singh, younger Thakur of Babdi, after searching for surendra Singh and Kan Singh in Gujarat, came to Sumer Singh, who asked Sua to enquire form Baba (Lord Shiva) about the whereabouts of the two persons Sua told him that they should write their question on a paper the next day and give the same to him After the expiry of 2 or 3 days Sua met them at his house and informed that the information form Baba had been received. He told them that it was to be read by Radhey Shyam and Sunder Singh as well as Sua, Sua took them on one side. He told them that it was to be read by Radhey Shyam and Sunder Singh as well as Sua, Sua took them on one side. When the letter was read, it was revealed that the following facts were written in the letter : eksVj es fcBkdj HkhyokM+k vk x;s gS mUgsa jk/ks';ke dk HkkUtk xkfcUn Hkh HkhyokM+k esa fey x;k FkkA eSus ckck us mudks bUdkj Hkh fd;k Fkk ijUrq os ugh ekusA blds ckn os ekyiqjk vk x;s vkSj ekyiwjk ls fMXxh dk cgkuk cuk;k vkSj dqN nwj pyus ij viuh eksVj [kjkc gksus dk cgkuk cuk;kA dkxt esa Hkh fy[kk Fkk fd ogka gok B.Mh py jgh gS blfy;s dqN nsj vkjke dj ys vkSj brus esa eksVj Bhd gks tkosxhA dkuflag o lqesj flag dks uhan vk xbZ mu nksuksa dh xnZu dqYgkM+h ls dkV nhA os nks nyky muds diM+s o tsoj ysdj pys x;s gSA Hearing this news Sumer Singh became unconscious. Later on accused Sua consoled him and told him that every thing would be alright because in the beginning of the letter the following words were written;and as such they should not worry about it.As the witness feared of evil spirits, he did not narrate this story to any body. The accused appellant was arrested on 23rd August, 1980 vide Ex.P. 13. On 30th August, 1980, accused Sua expressed his desire to get the clothes, shoes and other articles of Kansingh and Surendra Singh deceased recovered. The information was reduced into writing and the same has been marked as Ex P. 32. On 1st August, 1980, in pursuance of the information, Ex. P. 32, Sua, in the presence of "Motbirs", took the police and others to the field of Shripal Mali. There he took out from the field-water a shoe and a packet containing some clothes and other articles. He also brought another bag having a black strip Thereafter he discovered a shoe as also an axe. These articles were brought out by him after digging the earth. Following things were also recovered at his instance: (a) A Lota of silver, (b) a silver Chhalla, (c) a Chavanni, and (d) a Athanni. He also brought another bag having a black strip Thereafter he discovered a shoe as also an axe. These articles were brought out by him after digging the earth. Following things were also recovered at his instance: (a) A Lota of silver, (b) a silver Chhalla, (c) a Chavanni, and (d) a Athanni. A pen No. 999, cow mark black tooth-powder, a pair of spectacles, another pair of spectacles with black frame with a golden aluminium portion and an envelope, bearing the seal of Bhilwara post office, dated 6th June, 1980, a plasting comb, one old tetticot pant, a pair of trousers, a pant with a bush-shirt of blue colour with full sleeves with a mark of Bombay tailors and a chit of Dr. Kunrawat. Another bush shirt of blue colour and other articles including an axe mentioned in Ex. P 26. The clothes and articles were tied in a bundle, sealed and a seizure memo Ex P. 26. was prepared. On 1st September, 1980, accused Sua expressed his desire to get silver ornaments as well as wrist watch of Surendra Singh recovered. The information was reduced into writing and the same has been marked as Ex P. 23. On the same date he also expressed his desire to get articles belonging to Kansingh recovered. The fallowing articles belonging to Kansingh were recovered. (a) Golden Khangali, (b) silver Thal, (c) glass (d) Pandan, (e) a watch, (f) two Asans and currency notes of Rs. 3,50/-. The information was reduced into writing and in consequence of the information given by the accused, the above rioted articles were recovered at the instance of the accused from his house in which they were placed in a tin-box and were brought out after removing the earth 3 or 4 feet deep. The articles were seized and sealed. The seizure memo is Ex. P. 25. 5. Test identification proceedings were conducted for identifying the articles recovered at the instance of the accused Suit in the presence of the Munsiff and judicial Magistrate, Malpura, on 4th September, 1980. The blood-stained earth, 'Chaddies' end the axe were sent to the Forensic Science Laboratory. Its report regarding clothes of the deceased is Ex P. 39 and that of the axe is Ex P. 41. The report of the serologist is Ex. P. 40. The blood-stained earth, 'Chaddies' end the axe were sent to the Forensic Science Laboratory. Its report regarding clothes of the deceased is Ex P. 39 and that of the axe is Ex P. 41. The report of the serologist is Ex. P. 40. The axe recovered at the instance of the accused was not sent to the Serologist as the stains of blood on the axe were considered to be very small. The police, after usual investigation, submitted a challan in against the accused-appellant. Eventually the appellant was committed to the court of Sessions Judge, Tonk for trial.The learned Sessions Judge charged the accused of the offences, punishable under sections 302, 201, 379 and 411 I.P.C. The accused pleaded not guilty to the charges. The prosecution examined 36 witnesses in support of its case. The learned Sessions judge placed reliance on the evidence of (a) motive, (b) conduct of the accused after murder, (c) discovery of the clothes and pair of spectacles and other articles belonging to the deceased. (e) recovery of ornaments, utensils and watch belonging to the deceased at the instance of the accused, (f) discovery of the weapon of the offence viz, blood stained axe, corroborated by the post-mortem report and the statement of Dr. M. K. Bohra P W. 21 2nd held the accused guilty of the offence punishable under sections 302 and 201. I.P.C. and sentenced him to death and to pay a fine of Rs. 100/-, under section 302. I.P.C He also convicted him under section 301, Indian Penal Code and sentenced him to five years' rigorous imprisonment and to pay a fine of Rs. 5,000/- in default of payment of which to further suffer wo years' simple imprisonment. He was not, however found guilty of the charges, punishable under sections 379 and 411, I.P.C. After awarding the sentence of death, the trial court has referred the case to this court under section 366 (1). Cr. P. C for confirmation of the sentence of death, awarded to the accused. The accused has also filed two appeals, challenging his conviction and sentence.From the post-mortem reports Ex. P. 23 and Ex. P. 24., read with statement of Dr. M. K. Bobra P.W. 24, who had performed the autopsy on the dead bodies of Surendra Singh and Kansingh as also from the inquest reports Ex. P. 4 and Ex. The accused has also filed two appeals, challenging his conviction and sentence.From the post-mortem reports Ex. P. 23 and Ex. P. 24., read with statement of Dr. M. K. Bobra P.W. 24, who had performed the autopsy on the dead bodies of Surendra Singh and Kansingh as also from the inquest reports Ex. P. 4 and Ex. P 5 and the statements of the prosecution witnesses stands proved beyond reasonable doubt that who-so-ever inflicted injuries, particularly injuries on the necks of the persons, Surendra Singh and Kansingh intentionally caused their homicidal death. Learned counsel for the appellant has not challenged this aspect of the case and as such this issue hardly needs to be discussed in detail. 6. Mr. Dave learned counsel for the appellant urged that there are- certain outstanding features in this case, which, according to him are sufficient to throw doubt on rite prosecution version he urges that the prosecution witnesses have concealed the truth. The entire case, the counsel adds, is based on the testimony of interested witnesses. Kan Singh and Surendra Singh had been assaulted by some unidentified assailants, most probably by Banjaras. He further submits that both the deceased had stout bodies and they could not have been done to death by a single person. Recovery of the articles belonging to the deceased should not be relied upon, because independent witnesses were not examined and even if it is held to be proved, the accused could not be convicted under section 302, I.P.C On this basis, the possibility of some one else committing the murders and others removing the articles could not be ruled out. The learned Additional Government Advocate, appearing on behalf of the State, has supported the judgment of the trial court. 7. Admittedly, there is no eye-witness in this case and the entire case rests upon the circumstantial evidence. It is well settled law that before conviction based solely on such evidence can be sustained, it must exclude every other reasonable hypothesis except the guilt of the accused vide (1) AIR 1982 S. C. 1227). But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, is must meet each and every hypothesis, suggested by the accused, however. extravagant and fanciful it might be. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, is must meet each and every hypothesis, suggested by the accused, however. extravagant and fanciful it might be. Before an accused can contend that a particular hypothesis to his innocence has remained un-excluded by the facts proved against him, the court must be satisfied that the suggested hypothesis is reasonable and not far-fetched; vide (2) Earabhadrappa v. State of Karnataka A.I.R. 1983 S. C. 446. Further, it is not necessary Chit every one of the proved facts must in itself be decisive of the complicity of the accused. It may be that a particular fact relied upon by the prosecution may not be decisive in itself, yet if that fact, along with other facts, which stand proved, tends to strengthen the conclusion of his guilt, it is relevant and has to be considered. In other words, when deciding the question ref sufficiency of proof what the Court has to consider is the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused the conviction would certainly be justified. To make the matter further clear. the circumstances should be of a conclusive nature and they should be such as to exclude every hypothesis what one proposed to prove; vide (3) Prem Thakur v. State of Punjab A.I.R. 1983 S.C. 61. There must to a chain of evidence so far complete as not to lead any reasonable man for a conclusion constant with the innocence of the accused. If the circumstances proved in the case are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt. 8. In a reference under section 366 (1) Criminal Procedure Code (1974), by the Sessions Judge for confirmation of sentence of death passed by him, the entire case is before this Court and in fact it is a continuation of the trial of the case on the same evidence. This court has to satisfy as to whether case beyond a reasonable doubt has been folly made out against the accused for the infliction of the penalty of death. This court has to satisfy as to whether case beyond a reasonable doubt has been folly made out against the accused for the infliction of the penalty of death. Such being the legal position, it is the duty of this Court to consider the case in all its aspects and reach an independent conclusion on the materials, apart from the views expressed by the Sessions Judge. In other words, this Court has to arrive at an independent conclusion of its own. At the risk of repetition, we will like to observe that in a murder trial when an accused per-on stands charged with the commission of an offence punishable under section 302 I. P. C., he stands a risk of being subjected' to the highest penalty prescribed by the Indian Penal Code and naturally judicial approach in dealing ouch with cases has to be cogent. circumspect and careful in dealing with such an appeal or reference. In proceedings where the question of confirmation of a death sentence is involved, this Court has also to deal with the matter carefully and to examine all relevant and material circumstances before upholding the conviction and confirming the sentence of death. 9. Keeping the above well settled position of law, we now proceed to evaluate the evidence on record. The prosecution has tried to prove by the statements of P. W. 23 Radhey Shyam, P. W. 13 Moti, P. W. 8 Durgasingh and P. W. 27 Smt. Kripal Kanwar that accused Sua practised occult science and was successful in creating an impression in the minds of he villagers, including Kansingh and Surinder, Singh, that Sua possessed some supernatural power. He had hypnotised the deceased who used to part with their money and act according to his advice. 10. It has also come in evidence that Sua was in need of money but, there is nothing on record to hold that he was in such an urgent need of money the it might induce hire to take into his head to commit the murders of the two persons. Where 'here is a clear proof of motive for the crime which lends additional support to the finding of the court that the accused is guilty but the absence of clear proof of motive does not lead to the contrary conclusion. Vide (4) State of Haryana v. Sher Singh and others A.I.R. 1981 S. C. 1021. Where 'here is a clear proof of motive for the crime which lends additional support to the finding of the court that the accused is guilty but the absence of clear proof of motive does not lead to the contrary conclusion. Vide (4) State of Haryana v. Sher Singh and others A.I.R. 1981 S. C. 1021. The fact that the prosecution has failed to prove the motive puts the court to caution that other evidence bearing on the guilt of the accused has to be very closely scanned. As regards the evidence of procuring the presence of Surendra Singh and Kan Singh near the Bandh of Chandsen by accused Sua, the prosecution has examined P. W. 23 Radhey Shyam who stated that on 8th of June, 1980, accused Sua's brother Kana came to him and gave a letter which had been sewed. Instructions were given to him by another letter to take that sewed letter to Kan singh and Surendra Singh, who had gone to purchase the tractor. He was also informed that both of them could be available at Bhilwara Station. The witness further goes on to state that he went to Bhilwara, Surendra Singh met him at the Station and the scaled letter was delivered to him. Kan Singh also asked Radhey Shyam as to why Sua (accused) had not reached there. As the witness did not know the reason of Sua's not reaching Bhilwara, he pleaded ignorance about it and stated that he was asked to deliver the letter. They told him that the witness should go to the station and they would also be coming over there. Saying this, they delivered a letter to the witness for being handed over to Suren Ira Singh. The witness after boarding the train reached Sua's village at 9 a. m. the next day, but Sua was not available. He went to his 'Dhani' and delivered the letter of Kan Singh to Sua and gave the account of expenses incurred by him. He also delivered the amount of Rs. 150/- which remained with him. Out of the amount given by Sua's brother for incurring the journey expenses for going to Bhilwara and coming back. He went to his 'Dhani' and delivered the letter of Kan Singh to Sua and gave the account of expenses incurred by him. He also delivered the amount of Rs. 150/- which remained with him. Out of the amount given by Sua's brother for incurring the journey expenses for going to Bhilwara and coming back. It would be worthwhile to note here that neither the letter which is said to have been sent by Sua to Kansingh, nor the letter sent by Kan Singh, has been produced in the court and in the absence of these letters, it would amount to playing upon the conjectures to hold that in pursuance of that letter, sent by Sua, both Surendra Singh and Kan Singh reached the dam of Chandsen on the fateful night. Suspicion, how-so-over strong, cannot take the place of proof. Other evidence relates to the conduct of the accused after the commission of the murders of Surendra Singh and Kansingh. The prosecution has examined P. W. 23 Radhey Shyam and P. W. 17 Sumer Singh to prove that Sua had made an attempt to mislead the investigation and he disclosed certain facts regarding the manner in which both Surendra Singh and Kan Singh were murdered and these facts could not have been disclosed by any one else except the murderer. P. W. 17 Sumer Singh stated that Kansingh was contemplating to purchase a tractor in the partnership of Thakur Surendra Singh. Both of them left the village oil the 4th of June, 1980. When they did not return for 10 or 15 days, Raghunath Singh came and told him that Surendra Singh and Kansingh had gone to Gujarat for purchasing the tractor and as their where abouts were not known, he went in search of them. But no trace what-so-ever could be made out. Thereafter they consulted Sua for enquiring from the 'Baba' regarding whereabouts of Surendra Singh and Kan Singh by reducing the inquiry into writing and putting a letter near the deity of Lord Shiva. The witness further goes on to state that Sua had suggested to them to write the letter the next day as no pen was available at that time. They gave him the letter the next day. Two or three days thereafter, Sua informed them that Baba's reply had been obtained and the reply would be disclosed in the evening. The witness further goes on to state that Sua had suggested to them to write the letter the next day as no pen was available at that time. They gave him the letter the next day. Two or three days thereafter, Sua informed them that Baba's reply had been obtained and the reply would be disclosed in the evening. As suggested by Sua, Sumer Singh and Radhey Shyam met him at his house. All the three went in one corner and the letter was read, wherein it was written that every thing good would happen to Kan Singh, Kansingh s companion had fallen into the hands of brokers, who had taken them to Bhilwara Radhey Shyam's sister's son Govind also met them. Baba viz. (supernatural power) asked them not to accompany them, but they paid no heed to his advice and had conic to Malpura, where the brokers falsely pretended to take them to Diggi. After going at a little distance, they told the deceased that the car was not in working order and as such all of them should rest outside. As the cold breeze was blooding the two deceased fell asleep. Both of them were done to death by an axe and the brokers decamped with the clothes, ornaments and money of the deceased. The witness wants us to believe that as Sua had persuaded him that according to Baba nothing wrong happen to Kansingh. he kept silence and did not narrate this story to any one. In the course of cross examination the witness admitted that thereafter neither he went in search of Surendra Singh, nor did he inform the police. He further admits that the paper, in which the story of the ghastly murders had been written, remained with him for 24 hours, but he did not give it to the police. Not only this, the witness kept quiet and made a statement to the police only when the Deputy Superintendent of Police approached him for recording his statement at his house. The long silence on the part of the witness even after knowing the story of unnatural death of a close relation creates a strong suspicion about the truthfulness of the version given by the witness. Besides that, the other witness Radhey Shyam has narrated the same story in a different way. The long silence on the part of the witness even after knowing the story of unnatural death of a close relation creates a strong suspicion about the truthfulness of the version given by the witness. Besides that, the other witness Radhey Shyam has narrated the same story in a different way. Radhey Shyam stated that Sua told them that the letter was meant for Sumer Singh, but as Sumer Singh could not get it, it was given to him for reading. A perusal of the statement of Radhey Shyam shows that he is conspicuously silent about the work,' Kansingh ka Achcha Hoga'. According to this witness the place of the residence of the brokers was written in the letter. It was also written therein that as there was no number plate, the number could not be given therein. None of the two witnesses stated that the letter read by Radhey Shyam was delivered back to Sua and yet the letter has not been produced. Radhey Shyam stated that he did not remember whether after reading the letter, it was given back to Sua or not. He also stated that he cannot say as to whether or not that letter had been written by Sua. There are material contradictions in the statements of both these witnesses regarding this point. Radhey Shyam admitted that he was kept in police Thana' for 5 or 7 days and thereafter he was produced before the Magistrate of Malpura for making the statement. This witness was contradicted with his previous statement Ex. D-7. But he failed to explain the contradictions. The witness also admits that between 30th June and 11th, July, he had remained at his house and had been to his well as well as to the temple, yet he did not narrate the story regarding the manner of death of Surendra Singh to any one. A careful reading of the statements of both these witnesses indicates that they have scant regard for truth. The story regarding the conduct of the accused narrated by them does not inspire confidence. 11. Then we have the evidence of discovery of blood-stained axe Article 20. A pair of shoes, two bags containing certain articles which were recovered in consequence of the information Ex. P. 32 given by the accused. The story regarding the conduct of the accused narrated by them does not inspire confidence. 11. Then we have the evidence of discovery of blood-stained axe Article 20. A pair of shoes, two bags containing certain articles which were recovered in consequence of the information Ex. P. 32 given by the accused. In pursuance of that information, the accused took the police and P. W. 29 Khemchand and other witnesses to the field of Rampal. He went into the field containing water, dug the earth and brought out the above noted articles. From the two bags a bottle of black tooth-power, a bunch of keys, coins of four annas and 8 annas, a comb, two spectacles, a decayed diary and paper and two 'Chaddis' were recovered. There bush-shirts, two pants and two 'banyans' were also recovered. As the clothes were socked with mud, the police authorities got the mud removed by washing the clothes. The clothes were there after dried, they were seized and sealed in the packets. The axe was seized and sealed in one packet and above noted articles were seized and sealed in another packet. The Seizure memo is Ex. P. 26. According to the statement of P. W. 29 Khemchand. Hiralal and accused both signed the seizure memo. All these articles were produced in the court and exhibited in the statement of P. W. 29 Khemchand. Axe is Article 20, blue bush shirt is Articles 8 and 9, Pant is article 10, Chaddis are Articles 11. and 12, shoes are Article 14, bag is Article 20. Banyan is article 15. The other pant is article 17. Pair of trouser is article 18 and bush shirt is article 19. 'the information memo is Ex. P. 32. The axe was found to be stained with blood, but as the stains of blood were considered too small, it was not forwarded to the Serologist for serological examination. The report of the Director, Forensic Science Laboratory, is Ex. P. 41. Learned counsel for the appellant has urged that the axe had not been sent to the Serologist. There is nothing to hold that it was stained with human blood and, therefore, it is of no avail to the prosecution. Accused in his statement under section 313, Cr. P. C., denied to have got it discovered. P. 41. Learned counsel for the appellant has urged that the axe had not been sent to the Serologist. There is nothing to hold that it was stained with human blood and, therefore, it is of no avail to the prosecution. Accused in his statement under section 313, Cr. P. C., denied to have got it discovered. For raising a presumption of guilt against the accused, the ownership of the weapon of the offence cannot be said to be of much importance. The accused has failed to give any explanation as to how he came to know the where abouts of the blood-stained axe article 20. Nonetheless the blood-stains found on the axe have not been established to be of human blood, yet its recovery construes a strong circumstance against the accused-appellant. In this view of the matter. we stand fortified by various decisions of their Lordships of the Supreme Court and of this court. In (5) Shanker Bhika Narsel v. The State of Maharashtra A.I.R. 1972 S. C. 1171 Hon'ble Beg J, while dealing with the circumstantial evidence in that case, held that recovery of blood-stained axe at the instance of the accused was a relevant piece of evidence though the blood found on it was disintegrated and it could not be determined whether it was human blood. His Lordship further observed that : "Fifthly, the blade of the axe which was actually dug out by the appellant, was of such a nature that, according to the Medical evidence. the blow with a sharp edged weapon on the neck of the deceased Kondabai, which caused her death, could have been given by it." 12. In the case on hand Dr. M. K. Bohra P. W. 23 had also stated that the injuries sustained by the two deceased could be caused by the axe Article.20. He has also stated that the injuries were sufficient in the ordinary course of nature to death. This would suggest that axe Article 20 which was found by the Chemical Examiner to be stained with blood and could not be sent to the serologist, as the stains of blood found over it were found to be too small to be forwarded to the Serologist, is a relevant piece of evidence against the accused to prove that it was used with deadly effect. The accused also expressed his desire to get the clothes, shoes and bag as well as other articles recovered from a field near Chandsen Dam which were hidden by him after digging the earth upto about two feet deep. This information was reduced into writing and the same has been marked as Ex. P. 32. In pursuance of this information the police and the 'Motbits' went to field, where he had concealed the clothes pair of spectacles, shoes which were partly eaten by witheants and bags containing silver Lota, a Chhalla with keys, one four annas and 8 annas coins, writing pen No. 999, comb, white old pant of terrylene, a pair of trousers made of white 'Latha', pant of Saleti colour made of silk in cloth, two bush-shirts of blue colour out of which one bore the sign of Bombay tailors, Dr. Kumawat,' Chaddis with red strips, blue and black strips. Chaddi with green yellow and Bengni coloured strips. Banyan, a Punjabi dive, weekly Hindustan Times of 8th June, 1980 and an axe. All these articles recovered at the instance of accused, were seized and sealed vide recovery memo Ex. P. 26 Some of these articles were identified by Dilip Singh, Gajrat Singh, Raghunath Singh and Vikram Singh to be of the two deceased Surendra Singh and Kan Singh. The identification of these articles was made in the presence of P. W. 32 Jaikumar Agarwal. Munsiff Magistrate. Statement of the identifying witnesses stand corrorated by the identification memos Ex. P. 21 and Ex. P. 22. Discovery of these articles from the place of their concealment which was situated near the place from which the two dead bodies were recovered, in our opinion, is another circumstance unfavourable to the accused-appellant. He has failed to explain in his statement under section 313 Cr. P. C. as to how he came to know about the place of the concealment of the above noted articles belonging to the deceased. On 1st September, 1980 accusers-appellant expressed his desire that he would get recovered the gold Khungali, wrist watch, silver Thal, silver glass, silver Pandan, Rs. 3,500/- from his house in which he bad concealed them by putting them in an iron tin. The information was reduced into writing and the same has been marked as Ex. P. 33. On 1st September, 1980 accusers-appellant expressed his desire that he would get recovered the gold Khungali, wrist watch, silver Thal, silver glass, silver Pandan, Rs. 3,500/- from his house in which he bad concealed them by putting them in an iron tin. The information was reduced into writing and the same has been marked as Ex. P. 33. In consequence of this information the accused took the police party along with the 'Motbirs' to his house. He entered inside his house, reached near the window, dug a pit nearly 3 feet deep and brought out an iron tin from which the articles mentioned in the information memo Ex P. 33 were recovered. They were seized and sealed in the presence of the Motbirs vide recovery memo Ex. P. 2.5. This recovery was proved by the statement of P. W. 28 Gumansingh. P. W. 33 Gani Mohd. and P. W. 34. Hanuman Singh. All these witnesses were cross-examined at length. Suggestion made by the learned counsel for the accused during cross- examination that recoveries were fake, could not be substantiated. There is no reason why Hauuman Singh, Gatti Muhd. and Guman Singh should make false statement against the accused regarding the discovery of the above noted articles from his house, wherein he had concealed them. The above noted articles were identified to be those of the deceased by identifying witnesses. The test identification parade was held under the supervision of Shri Jaikumar Agarwal, Munsif Magistrate. The identification memos are Ex P. 21 and Ex. P. 22. The same articles were identified by these witnesses in the court. They also stated that these articles were in possession of the deceased Surendra Singh and Kan Singh at the time when they had left their place and went out to purchases the tractor. The recovery of the above noted valuable articles and the currency notes, belonging to the dc cased is another important piece of evidence against the accused. He has fails, to explain in this statement, recorded under section 313, Criminal Procedure Code as to how he came in possession of the above noted articles. He has made a bald denial regarding the recovery of the above noted articles from his house. 13. He has fails, to explain in this statement, recorded under section 313, Criminal Procedure Code as to how he came in possession of the above noted articles. He has made a bald denial regarding the recovery of the above noted articles from his house. 13. During the course of investigation 'Chaddis' of Kansingh, recovered at the instance of the accused Sua and marked as 'A', as well as the 'Chaddi, recovered from the dead body of Kansingh marked as 'B', similarly chaddi 'of' Surendra Singh, recovered at the instance of the accused Sua marked as 'C' and 'chaddis' recovered from the dead body of Surendra Singh and marked as 'D' were sent to an expert for expressing his opinion as to whether the cloth, fibre and texture of 'chaddis', recovered at the instance of the accused and those of 'chaddis', recovered from the dead bodies of Kan Singh, were similar or not. The expert after examination came to the conclusion that the above noted 'chaddis' were similar in respect of clothes, stitching, shade, design and other characteristics. Reply given by the Assistant Director of the Forensic Science Laboratory has been marked as Ex. P. 43. Thus the recovery of the above noted Chaddis in consequence of the information given by the accused is another important piece of evidence, which connects the accused with the crime. It was his duty to explain as to how he came in possession of similar 'Chaddis' as were found on the dead bodies of Kansingh and Surendra Singh, but he has failed to do so. As Already mentioned above, articles mentioned in recovery memos were recovered from the field wherein the accused had concealed them. From the recovery of the above-noted articles it stands proved beyond reasonable doubt that no person other than the appellant congealed the above noted articles. In order to avoid suspicion, he must have been keen to remove the articles from the body of the deceased even if the deceased were not murdered by him so that the dead bodies might not be identified. The field, from which the articles mentioned in recovery memos were recovered, is situated at a little distance from the place wherein the dead bodies of Surendra Singh and Kan Singh were lying. Further. the appellant denied the whole prosecution story. The field, from which the articles mentioned in recovery memos were recovered, is situated at a little distance from the place wherein the dead bodies of Surendra Singh and Kan Singh were lying. Further. the appellant denied the whole prosecution story. This again lends some assurance that he was denying facts in order to conceal his participation in the crime. We are accordingly of the opinion that the opinion that the learned Sessions judge caner to the correct conclusion in convicting the accused-appellant Sua under section 201, I. P. C. 14. The, murders of Surendra Singh and Kan Singh were committed on the intervening night of 12th and 13th May. 1980. The accused was arrested on August 23, 1980. As already mentioned above, he expressed his desire to get gold Khuugali, wrist watch, silver Thal, Silver Glass and silver Pandan as well as Rs. 3,500/- recovered from his house in which he had concealed there by putting them in an iron tin. These articles were seized and were got identified under the supervision of the Magistrate. The test identification memo is Ex. P. 22. These articles were identified by Dilip Singh, Narayan Singh, Kaghunath Singh And Vikram Singh as those of the deceased Kansingh, except watch which was that of Surendra Singh. The presumption permitted to be drawn under Section 114 of the evidence Act has to be read along with the important time factor. If the ornaments or the things of the deceased are found in possession of a person soon after the murder, a presumption of murder may be permitted, but if several months expired in between, the murder and the recovery, in such circumstance it is not improbable that some body else might have murdered Surendra Singh and Kansingh and the stolen property came into the possession of the accused. In the absence of any direct evidence, unexplained recovery of the articles belonging to the deceased after so long a time of the date of murder leads to the inference that the accused in receiver of stolen property. In the facts and circumstance of the case, it cannot be said with certainty that the theft and murder took place at one and the same time. In the facts and circumstance of the case, it cannot be said with certainty that the theft and murder took place at one and the same time. While deciding the question of sufficiency of circumstance in a case where there is no eye witness, what the Court has to consider is the total cumulative effect of all the facts such of which re-enforce the conclusion of guilt and if the combined effect of all those facts taken together, does not conclusively establish that the accused has committed murder or the murder and theft were integral part of the same event, it would not be safe to maintain the conviction of the accused under section 302. I P. C. We are of the opinion that accused- appellant besides being guilty of Section 201, I. P. C. is also guilty of section 411, I. P. C 15. Reference made by the learned Sessions Judge under section 336 Criminal Procedure Code stands rejected. The appeals filed by the accused-appellant are partly allowed. Conviction and sentence awarded to the accused appellant under section 302, I. P. C. are set aside. He is acquitted of the charge punishable under Section on 302, I. P. C. The conviction and sentence awarded to hi in by the trial court under section 201 I. P. C. are maintained. He is also convicted under section 411 I. P. C. and sentenced to three years imprisonment. The substantive sentences of imprisonment awarded to the accused-appellant are ordered to run concurrently. 16. It is, however, made clear that the accused-appellant shall be entitled to the benefit of section 428 Criminal Procedure Code. The term of imprisonment undergone by him during investigation, inquiry or trial shall be set off against the term of imprisonment awarded by this Court. *******