JUDGMENT 1. - This is an appeal against the Judgment of the learned Sessions Judge, Banswara dated January 18, 1980 whereby the accused-appellants Inderlal@Sabba and Manoharlal@Munna have been held guilty for the offences u/ss.302/34, 449/34 & 327/34 IPC and have been ordered to undergo life imprisonment together with a fine of Rs. 50/- for the offence under section 302/34 IPC and in default, to undergo two months' rigorous imprisonment. For the offence under s. 449/34 IPC, both the appellants have been sentenced to 4 years' rigorous imprisonment together with a fine of Rs. 50/-and in default to undergo two months' rigorous imprisonment and for the offence under s 397/34 IPC, they have been ordered to undergo 7 years' rigorous imprisonment together with a fine of Rs. 50/-and in default to undergo two months' rigorous imprisonment. All the 'substantive sentences have been ordered to run concurrently. The ornaments have been ordered to he delivered to Smt. Sharda . Dhapu and the Katiya and Chugas have been ordered to be destroyed. 2. The facts giving rise to this appeal briefly, stated are that Smt. Kesar Bai, Tailor by caste, resident of village Partapur was living in her house at Partapur. PW 2 Smt. Sharda who is daughter of PW 3 Chhaganlal was also living with her along with her family. On the day of the occurrence, i.e. on 28th August, 1978, Chhaganlal's wife fell ill and, therefore, Smt. Sharda @ Dhapu went to village Garhi to meet her ailing mother alongwith her brother. There, one Kanhaiyalal (PW 5) informed Smt. Sharda @ Dhapu that some thieves have entered the house of Smt. Kesar. On this, Smt. Sharda alongwith Shri Chhagantal came to Partapur in a Jeep and found that the doors of the house of Smt. Kesar were bolted from inside. They pushed the doors but the doors did not open, whereupon, Chhaganlal proceeded immediately to the Police Station Garhi and lodged a report which has been recorded in the Rojnamcha as Rapat No. 688 at 12.55 P.M. on 28th August, 1978, in which. he has narrated the above facts. As the information was not clear, Head Constable Jaswant Singh, who was working as Incharge of the Police Station ordered H.C. Sajjansingh of Partapur to proceed to the spot immediately and send a detailed report about the matter. he has narrated the above facts. As the information was not clear, Head Constable Jaswant Singh, who was working as Incharge of the Police Station ordered H.C. Sajjansingh of Partapur to proceed to the spot immediately and send a detailed report about the matter. On this Head Constable Sajjansingh reached the spot and it has been alleged by him that L.C. Narendra Kumar No. 327 also reached there and he asked him to open the doors of Smt. Kesar's house by enterning it from the roof side. He, then, went inside the house of Smt.Kesar alongwith Motbirs Heeralal (PW 14) and Davilal (PW 10) and opened the door from the inside. When the Police party alongwith Motbir headed by Sajjansingh went inside the house, they found Smt. Kesar lying dead in her kitchan. She has met her death by strangulation using her own Odhani (Sari) around her neck. Blood was coming out from her nostrils and ears, and cooked food was lying in the utensils nearby. 3. On enquiry, PW 6 Mst. Hukki, PW 17 Smt. Kanku and PW 7 Mansuklai informed him that they have been the accused persons running from the roof of Smt. Kesar's house. Smt. Sharda informed him that some silver and golden ornaments which Smt. Kesar was wearing have been taken away by the accused persons He, therefore, came to the conclusion that accused Inderlal and Manoharlal have killed Smt. Kesar in order to obtain her ornaments 4. PW 4 Narendra Kumar is the son of Smt. Sharda who at the relevant time went to the school and came back at about 11.30 A.M. He too, found the doors of his house closed from inside and, therefore, he could not enter the house and saw these two accused persons running from the house of Smt. Kesar. He gave this information to his mother. A detailed report about the incident, which has been marked Ex. P I, was sent by H.C. Sajjansingh to the Police Station, Garhi through L.C. Narendra Kumar No. 327, on the basis of which, a former FIR, marked Ex. P 8 was drawn. S.H.O. Garhi was informed about this murder and he, alongwith, Deputy Superintendent of Police reached the spot on the same day and started investigation. They prepared the Inquest memo of Smt. Kesar which has been marked Ex. P 9. Site plan Ex. P 12 was also prepared. P 8 was drawn. S.H.O. Garhi was informed about this murder and he, alongwith, Deputy Superintendent of Police reached the spot on the same day and started investigation. They prepared the Inquest memo of Smt. Kesar which has been marked Ex. P 9. Site plan Ex. P 12 was also prepared. The postmortem examination of Smt. Kesar was got conducted and it has been marked Ex. P 14. Some clarifications were sought from the Doctor vide letter Ex. P 16 and the comments of the Doctor are contained in portion A to B of this very Exhibit. 5. The accused persons were arrested at about 4 P.M. on that very day and the arrest memo of Inderlal and Manoharlal have been marked Ex. P 2 and Ex. P 3 respectively. The injuries on the person of the accused appellant Inderlal and Manoharlal were got medically examined and those injury reports have been marked Ex. P 17 and Ex. P 10. The accused-persons after arrest gave information to the Police regarding recovery of the stolen ornaments. The information memos of accused Manoharlal and Inderlal have been marked Ex P 19 and Ex. P 20 respectively. These information were given on the same day soon after the arrest. On the basis of the information, accused Manoharlal got recovered one Golden Chain, three silver rings vide Ex. P 10. Accused Inderlal @ Sabba got recovered one pair of silver Kaddes, some silver bangles, six golden panaries which are put in the ears and one golden Kanful vide Ex. P H. The accused Sabba Inderlal gave information on 29th August, 1978 about the recovery of one Katiya. This information has been recorded in Ex. P 21 and its recovery memo has been marked Ex. P 7. The recovery was actually made on 30th August, 1978 and not on the day of the information. Accused Manoharlal also gave information on 29th August, 1978 that he will get one iron Chugs recovered. This information has been marked Ex. P 24 and the recovery memo of this Chuga has been marked Ex. P 6. This Chuga was also recovered on 30th August, 1978. 6. A request was made to the Chief Judicial Magistrate, Banswara to conduct the identification parade of the crime articles. The report of the police has been marked Ex. P 22 and the order sheets of the court have been marked Ex. P 23. P 6. This Chuga was also recovered on 30th August, 1978. 6. A request was made to the Chief Judicial Magistrate, Banswara to conduct the identification parade of the crime articles. The report of the police has been marked Ex. P 22 and the order sheets of the court have been marked Ex. P 23. Identification memo of the ornaments have been marked as Ex. P 4 and the identification of one handkerchief has been marked Ex. P 5. 7. After usual investigation, the accused-persons were challaned in the court of Munsif & Judicial Magistrate, First Class, Banswara,from where the case was committed for trial to the court of sessions.The learned Sessions Judge charged the accused-persons for the offences under sections 449/34, 302/34 and 397/34 IPC. The pleas of the accused-persons were recorded and they did not plead guilty to the charges and claimed trill, whereupon, the prosecution examined as many as 21 witnesses viz., PW I Sajjan Singh, PW 2 Smt. Sharad, PW 3 Chhaganlal, PW 4 Narendra Kumar, PW 5 Kanhaiyalal, PW 6 Mst. Hukki, PW 7 Mansukhlal. PW 8 Poonja, PW 9 Phool Shanker, PW 10 Devilal, PW 11 Narendra Kumar, PW 12 Sukhlal, PW 13 Narbda, Shankar, PW 14 Hiralal, PW 15 Dr. S.L. Sirohiya. PW 16 Akbar All PW 17 Smt. Kanku, PW 18 Shri Gyan Chand Gupta, PW 19 Shri P.S. Shukla, PW 20 Jaswant Singh and PW 21 Jagdish Prasad. The statements of the accused persons were recorded under s. 313 Cr. P.C. The accused persons led no defence. 8. After hearing the parties, the learned Sessions Judge, decided the case as stated above. Aggrieved against this judgment, the accused persons have preferred this Jail appeal as well as represented appeal. 9. We have heard Mr. R.K. Soni, learned counsel for the accused-appellants and Mr. L.S. Udawant, learned Public Prosecutor for the State and have carefully gone through the record of the case. We have given our most earnest consideration to the submissions made at the bar. 10. He, now proceed to decide how far the judgment of the learned Sessions Judge can be sustained. 11. At the outset, we may categorically state that nobody has seen the accused persons killing Smt. Kesar Bai. The incident took place inside the house of Smt. Kesar after bolting the doors from the inside and so, nobody could have seen the occurrence. 11. At the outset, we may categorically state that nobody has seen the accused persons killing Smt. Kesar Bai. The incident took place inside the house of Smt. Kesar after bolting the doors from the inside and so, nobody could have seen the occurrence. The entire case rests on circumstantial evidence. It is well settled that in case of circumstantial evidence, all the incriminating facts and circumstances should be fully established by cogent and reliable evidence and the facts so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and one conclusion only that the accused-persons and none other perpetrated the alleged crime. In this connection.reliance may be placed on Hukamsingh v. State of Rajasthan, AIR 1977 SC 1063 . 12. Having laid down the tests for scrutiny of the circumstantial evidence, now we proceed to examine the evidence recorded in the case. 13. PW. 2 Smt. Sharda @ Dhapu has stated that Smt.Kesar was her maternal aunt (Mausi). She was living in Partapur. She (Smt. Sharda) and her family used to live with Smt. Kesar Bai. The name of her elder son is Narendra Kumar, who is aged about 10 to 11 years and was reading in IVth Class at the point of time. On the day of occurrence i.e., on 28th August 1978, she went to her father's village Garhi, at about 10.00 A.M. or 10.15 A.M. She left behind Smt. Kesar in her house and her son Narendra went to the school and was to return at 11.30 A.M. After some-time of her reaching Garhi, PW 5 Kanhaiyalal informed her on phone that some thieves have entered the house of Smt. Kesar. On this, she and her father Chhaganlal came to village Partapur in a Jeep from Garhi. A number of persons were standing outside her house. The main gate of the house was closed from inside. On this, her father went to report the matter to the police. After that, her son Narendra told her that Inderlal @Sabba and Manoharlal were seen by him running from their house. Smt. Kanku (PW 17) who is also the sister-in-law of Smt. Sharda informed her that she saw accused Manoharlal going out from the house of Smt. Kesar. On this, her father went to report the matter to the police. After that, her son Narendra told her that Inderlal @Sabba and Manoharlal were seen by him running from their house. Smt. Kanku (PW 17) who is also the sister-in-law of Smt. Sharda informed her that she saw accused Manoharlal going out from the house of Smt. Kesar. PW 6 Mst. Hukki also informed her that she saw accused Inderlal Sabba jumping from the roof of the house of Smt. Kesar. After some time, his father came back with the police. In the meanwhile, one constable Narendra Kumar was also asked to enter into the house of Smt. Kesar from over the roof and open the doors which were bolted from inside. When she left for Garhi Smt. Kesar was alive and was wearing golden chain, Panariyas and Kanful. She was also wearing silver bangles and six silver rings alongwith silver anklets. As soon as PWII Narendra Kumar (Constable) opened the doors of their house from inside, they entered the house and found Smt. Kesar lying dead in her kitchen. She was strangulated and done to death by making use of her own sari and tying it around her neck. She was bleeding from nose and ears and had no ornaments over her body. 14. Before we scrutinise her testimony about the other aspects of the case, it would be worth-while to note here that PW 1 Sajjansingh has also corroborated her testimony and has stated that when the gate was got opened through PW 1 l Narendra Kumar, they entered the house of Smt. Kesar and found her lying dead in her kitchen. She died because of the strangulation. He too, has stated that She was bleeding from nose and ears. This fact of Smt. Kesar's lying dead in that condition is also corroborated by PW 3 Chhaganlal, PW 10 Devilal, PW 11 Narendra Kumar and PW 14 Heeralal. PW 10 Devilal was further stated that Smt. Kesar Bai had no ornaments on her body at that time. 15. Now, we proceed to examine whether Smt. Kesar's death has been suicidal or homicidal. In this respect, the prosecution has examined PW 15 Dr. B.L. Sirohiya, who has conducted the autopsy of Smt. Kesar on 28th August, 1978. PW 10 Devilal was further stated that Smt. Kesar Bai had no ornaments on her body at that time. 15. Now, we proceed to examine whether Smt. Kesar's death has been suicidal or homicidal. In this respect, the prosecution has examined PW 15 Dr. B.L. Sirohiya, who has conducted the autopsy of Smt. Kesar on 28th August, 1978. Fortunately or unfortunately, it was the first postmortem examination conducted by this Doctor and so, in our opinion, lie cannot be considered to be a very experienced Doctor so far as conducting the autopsy we concerned and so certain lapses on his part have to be considered in that light. PW 15 Dr. B.L. Sirohiya has stated that on 28th August, 1978 at about 5.15 P.M., he conducted the postmortem examination of Smt. Kesar Bai wife of Premchand. The dead body of smt. Keshar was identified by the Chamanlal. On examination. we found the following injuries on her person: (i) Blood was oozing from nostril and from both the ears. (ii) There was collection of blood in the left eye. (iii) There were ligature marks around the neck. Towards the left side of the neck below the angle of mandible, there was a double knot of ligature of a cotton sari. (iv) Ligature mark was 11/2" wide and its colour was red. The lobule of right ear had cut wound measuring 11/2 cm long 1 /2 cm apart cut surface was covered by clotted blood. She became white. Her eyes were coming out. Mouth was half opened and the tongue was not coming outside the mouth. On internal examination he found that larynx and tracheae were congested & were full of blood. He has proved the external and internal injuries. Ex. P 14 and Ex.P15 have been proved by him and bear his signatures at place A to B. According to him, Ex. P 15 is a part of Ex. P 14. He did not record whether injuries were anti-mortem. The police sought a clarification about it vide memo Ex. P 16. The Doctor has opined vide Ex. P 16 that these injuries marks were anti-mortem in nature. Below this report on Ex. P 16 at A to B, he has preyed his signatures C to D. Kesar Bai succumbed to the injuries before 24 hours of the autopsy. The police sought a clarification about it vide memo Ex. P 16. The Doctor has opined vide Ex. P 16 that these injuries marks were anti-mortem in nature. Below this report on Ex. P 16 at A to B, he has preyed his signatures C to D. Kesar Bai succumbed to the injuries before 24 hours of the autopsy. According to him, the lady could be strangulated by putting a sari around her neck. According to the Doctor, Smt. Kesar was a patient of gestitis and she took treatment from him about this diseases. According to him, the clotted blood was found in the right chamber of the heart could be present there because of the strangulation. It is unusual that one will commit suicide by strangulation of his or her neck because that hold of the hands will losers. Even by putting knots on both sides of sari it is difficult to commit suicide as this will require lot of pulling. He has admitted that he did not record in Ex. P 14 that injuries were anti-mortem. This was only due to his in-experience and carelessness. In Ex. P 16, he has categorically stated that these injuries were anti-mortem in nature. At that time rigour mortis was not present because it does not remain there after 24 hours of the death. Thus, according to the Doctor, Smt. Kesar's death has been homicidal and not suicidal because it is most unusual that one will strangulate his neck by a piece of her sari. 16. Having held that the death of Smt. Kesar was homicidal and was the result of the strangulation, we now proceed to examine the ocular evidence about the involvement of these accused persons with the commission of the crime. 17. We have already stated above that there is no eye witness of strangulation. The circumstantial evidence led in the case conclusively prove that these are two accused-persons who are responsible for murder of Smt. Kesar. Smt. Sharda went to village Garhi to see her ailing mother. Her son was at school and so, Smt. Keshar was alone in her house. When Smt. Sharda left for village at 10 A.M. or 10.15 A.M., Smt. Kesar was alive. PW 6 Mst. Hukki is the neighbour of Smt. Kesar. She has a shop in her own house. Smt. Sharda went to village Garhi to see her ailing mother. Her son was at school and so, Smt. Keshar was alone in her house. When Smt. Sharda left for village at 10 A.M. or 10.15 A.M., Smt. Kesar was alive. PW 6 Mst. Hukki is the neighbour of Smt. Kesar. She has a shop in her own house. At about II Am, when she was working on her shop, Smt. Kesar her cooked vegetables At that point of time, as per Suit. Hukki, she (Smt. Kesar) was wearing golden chain, Kanful and Panariyas. She was also wearing silver bangles along with silver rings. After taking the cooked vegetables, Smt. Kesar went to her house. After some-time, Hukki's son defecated. She went to clean her son on the roof of the house. At that point of time, she saw accused Sabba @ Inderlal on the roof of the house of Smt. Kesar. He jumped from the house in the lane. He was wearing blue bushirt. After jumping on the chhan, she saw him jumping from chhan to the lane from gallery of her house. She then went to her room and raised a cry that there are thieves in the house of Smt. Kesar who is her aunt in distant relation. On hearing cries, some persons assembled there. Kanhaiyalal also reached there. Sharda was at village Garhi at that time. Smt. Sharda & Dhapu was living with Kesar for the past 10 to 15 years. After some-time Dhapu and her father came from Garhi to Partapur. The time when they reached Partapur was 12 noon. After that lime, she had no talk with Chhaganlal or Smt. Sharda. When the police came, she informed them that she had seen Inderlal jumping from the house of Smt. Kesar. The Police recorded her statement at 1 A.M. She has seen the face of the accused when he was jumping from the roof of the house of Smt Kesar. In portion A to C of Ex. P 1, she had got it recorded that colour of the shirt of the accused was Saleti. She has stated that there is no difference in what she has stated before the Court and earlier in the Police statement. 18. In portion A to C of Ex. P 1, she had got it recorded that colour of the shirt of the accused was Saleti. She has stated that there is no difference in what she has stated before the Court and earlier in the Police statement. 18. PW 4 Narendra has stated that be came to his house at about 10 A.M. It appears to be wrong because his mother herself has gone to Garhi at about (sic) found closed from inside by him at 10.00 A.M. in the presence of his mother. His mother has further stated that he usually comes at 11.30 A.M. and this statement of Smt. Sharda appears to be more correct and also stands the test of a closer scrutiny. P.W. 6 Mst. Hukki has slated that at 11 A.M. Smt. Kesar came to her house for taking vegetables. It means that Smt. Kesar came out of her house at 11 A.M. and so, the doors of her house could not have been bolted from the inside at JO A.M. and if Narendra who is the boy aged about 10 years was present at 10 A.M. in front of her house, he could safely have gone into the house of Smt. Kesar at 11.00 A.M. if he had come at 10.00 A.M. It appears to be true as stated by Smt. Sharda that her son usually arrive from the School at 11.30A.M. This appears correct that at the time, the house of Kesar was found closed from the inside and so, to this extent, the statement of Narendra that he came hack from the School to his house at 11.00 A.M. does not appear to be reliable. However, Narendra has stated that when he came from the School, he found the doors of the house of Smt. Kesar bolted from the inside. He pushed the doors but the doors did not open. He then saw the accused Sabha @ Inderlal and Manoharlal@Munna in the lane after jumping from the roof of the house of Smt. Kesar. His mother was at that point of time in village Garhi. His mother and maternal grand father came in a Jeep from Garhi to Partapur. He had told his mother that he had seen these two accused persons coming down from the roof of their house and then saw them running in the lane. His mother was at that point of time in village Garhi. His mother and maternal grand father came in a Jeep from Garhi to Partapur. He had told his mother that he had seen these two accused persons coming down from the roof of their house and then saw them running in the lane. He has further stated that he also told to her mother that he gave a push to the doors of the house at 11.30 A.M. This strengthens the testimony of Dhapu that actually he came at 11.30 A.M. and not at 10.00 A.M. because he would not have waited for 1 and 1/2 hours to give a push to the doors of the house. In his cross-examination, be has stand that he saw the back of these accused-persons. Learned counsel appearing for the accused-appellants argued that he has only seen the back of the accused and, therefore, he could not identify the accused. It was an occurrence in the broad day light. The accused-persons came down from the roof of the house of Smt. Kesar and then, they ran in the lane and so the witness has seen them coming down from the house of Smt. Kesar and then running in the lane. In broad day light, one can identify his own villagers even when he sees them by back. Thus, the testimony of Narendra cannot be challenged on that ground. 19. This boy has further stated in his cross-examination that he also told his grand maternal uncle before he went to report the matter to the police that he gave the push to the doors of the house but did not open and he saw the accused-persons running from the roof of the house of Kesar. 20. Learned counsel vehemently argued that if we believe the statement of PW 4 Narendra then it was essential for Chhaganlal to have informed the police that these two accused persons have entered the house of Smt. Kesar and the main door has bolted from inside and Narendra (PW 4) has seen these accused-persons running away from the house of Smt. Kesar. I feel that here also, the boy has fluttered because of lapse of memory. I feel that here also, the boy has fluttered because of lapse of memory. Had he talked about all these facts to his maternal uncle before he went to report the matter to the police, there was no question for Chhaganlal to have withhold the names of these two accused persons. The accused-appellants were neither of his own caste fellows nor his friends nor his relations. Smt. Sharda has categorically stated that Narendra had not talked with his Lithe] before he went to the police. Chhaganlal has also categorically stated that he did not have any talk either with Narendra or with Hukki or Kanki before he went to report the matter to the police. He cautioned that the doors of the house if it is bolted from the inside should not be opened before the police comes. He came from Chari to Partapur in Jeep as stated by him and corroborated by not only Smt. Sharda but two other witnesses too. He got information from Kanhaiyalal and this fact has been fully corroborated by PW 5 Kanhaiyalal who has stated that when he heard noise of Hukkt that there are thieves on the roof of the house of Smt. Kesar, he immediately went to the house of Smt. Kesar and found about a0 to 100 persons assembled there and he immediately went to the shop of Mangalji Bhai and rang up Smt. Sharda @ Dhapu and informed her that thieves have entered her house and they should come down. As soon as they came there and found the doors closed. Chhaganlal rushed to the police station because he was of the opinion that the doors should nut be opened before the police arrives. He probably did not talk to anybody at that point of time which is clear from the information which he had lodged in the police. 21. At this stage, learned counsel for the appellant tried to argue that this Ex. P 13 in the real FIR and not one sent by PW 1 Sajjansingh which has been marked as Ex. P I on the basis of which formal FIR Ex. P 8 has been drawn. We are not at all impressed by this argument. Had Chhaganlal known the names of the accused-persons, there was no reason for him to withhold the names before the police. P I on the basis of which formal FIR Ex. P 8 has been drawn. We are not at all impressed by this argument. Had Chhaganlal known the names of the accused-persons, there was no reason for him to withhold the names before the police. He only heard that some thieves have entered the house of her daughter and Smt. Kesar and so, he rushed to the police station and informed them that some thieves have entered the house of Smt. Kesar and the house is bolted from the inside. Although, it is an information of a cognizable offence but it does not give any clue to the murder that has taken place and the gold and silver articles of which the theft has been committed. Thus,in this way Ex P 13 is also an information and can be taken to be an FIR of suspected case of theft but the real FIR has been sent by PW I Sajjansingh, who accompanied Chhaganlal to the spot, got the house of Smt. Kesar opened with the help of PW 11 Narendra Kumar. The statement of PW Narendra Kumar is fully corroborated by PW 1 Sajjansingh and PW. 10 Devilal who accompanied him in getting the doors of the house of Smt. Kesar opened from inside after scaling the wall. On opening the doors, the dead body of Smt. Kesar was found in a position which has been stated above. Her golden and silver ornaments which she was wearing were found missing. Her ear lobe was also cut, therefore, on the basis of these facts observed at the spot, a detailed information Ex. P I was sent by Sajjansingh to the police station Garhi. Actually he was directed to do so vide Ex. P 13 by the Head Constable Incharge Police Station, Garhi, and thus, Ex. P I also becomes a FIR regarding the murder of Smt. Kesar and the ornaments which have been stolen. The real information about the crime was furnished by Head Constable Sajjansingh. He was nit sent there to investigate but to find out the facts because Chhaganlal wanted the police help before getting the doors opened. We are, therefore, not impressed by the argument of the learned counsel for the appellant that Ex P 1 and Ex. P 8 and are not FIR's of the case. 22. He was nit sent there to investigate but to find out the facts because Chhaganlal wanted the police help before getting the doors opened. We are, therefore, not impressed by the argument of the learned counsel for the appellant that Ex P 1 and Ex. P 8 and are not FIR's of the case. 22. Now, we come back to the point which we were discussing i e. the presence of the accused persons at the place of the occurrence or nearby it. The next witness who has seen one of the accused persons running from the roof of Smt. Kesar is PW 17 Smt. Kanku. She has stated that at about 11.30 A M , she went to urinate on the roof of her house in its back portion. There, she saw accused Manoharlal standing on the roof of the kitchen of Smt. Kesar's house. She cried "what is this", on which Manoharlal said, "there is nothing" and then he ran away. When she came down stairs, PW 6 Mst. Hukki was already crying and the people started assembling there. After some-time when Dhapu @ Sharda came there, she informed her that she has seen accused Manoharlal on the roof of the kitchen of Smt. Kesar's house. Accused Inderlal @ sabba jumped from the roof of Smt. Kesar's house, Smt. Hukki has seen the accused Inderlal Sabba running from the roof of the kitchen of Smt. Kesar's house and PW 4 Narendra Kumar has seen the accused persons coming down from the roof of the house of Smt. Kesar and running in the lane. The matter does not end there. They were even seen running in the lane by PW 7 Mansukhlal and PW 8 Poonja. PW 7 Mansukhlal has stated that he was standing near the temple of Laxminarainji along with his hand-cart.He saw the accused Inderlal and Manoharlal coming running from the lane of Sataro and going through the market towards the lane of Sukhlal Master. Kesar's house is situated in Sataroki-Gali. This was seen by him on the day Smt. Kesar died. He did not talk to them. At about quarter to 12, police came to Partapur and he informed them that he has seen the accused persons running away in the lane in which the house of Smt. Kesar is situated. Kesar's house is situated in Sataroki-Gali. This was seen by him on the day Smt. Kesar died. He did not talk to them. At about quarter to 12, police came to Partapur and he informed them that he has seen the accused persons running away in the lane in which the house of Smt. Kesar is situated. PW 8 Poonja has stated that at about 11.30 A.M., he went to the house Parthen Patel. There, he saw accused Inderlal and Manoharlal running from Sataro-ki-Gali and going towards the lane of Narmda Shankar. The accused were running towards Nawa Padar. He informed about it to Shri Devilal Tailor on that very day. His statement was recorded on that very night. The testimony of all these witnesses read together leads to the conclusion that Mst. Kesar was alive at 11.00 A.M., who took cooked vegetables from Smt. Hukki and probably when she was in the process of taking her meals some time at about 11.00 or 11.30 A.M., these accused persons at that time entered the house of Smt. Kesar on that day knowing that, she was alone in the house because Smt. Sharda went to Garhi and her son Narendra was to come back from the School at 11.30 A.M. They bolted the doors from the, inside strangulated Smt. Kesar by putting two knots to her own Sari and tying it around her neck and then, after removing the golden and silver ornaments from her body, they jumped from the roof of Smt.Kesar's house and ran through the market towards the area called Nawa Padar. 23. At this stage, we may consider one more argument regarding the place of occurrence put forth by the learned counsel for the appellant. has stated that from the site-inspection memo and the statements of the witnesses, it is clear that there are no doors to the back gate of the house of Smt. Kesar and thus, there was no occasion for the accused-persons to jump from the roof of Smt. Kesar's house, they could have made their escape through the bath-room and later from the back gate, which has no doors, Probably, he has forgotten the fact that these accused persons were not the in-mates of Smt. Kesar's house. It is not expected of them that they would have knowledge that the back gate of the house of Smt. Kesar has no doors. It is not expected of them that they would have knowledge that the back gate of the house of Smt. Kesar has no doors. It is further clear that they had no knowledge about this aspect of Smt. Kesar's house and as such; they jumped from the roof. They were seen jumping from the roof by Smt. Hukki and Smt. Kanku and the Doctor has supported that the injurice found on the accused persons could come by jump from a height and, therefore, the mere fact that the Smt. Kesar's house has a back gate without doors does not weaken the testimony of the prosecution witnesses, in any way. Having discussed the presence of the accused persons at the place of occurrence at about 11.30 A.M. on the day Smt. Kesar was murdered, we now proceed to discuss the second aspect of the prosecution testimony i e., the recovery of the ornaments and certain other articles at the instance of both the accused persons. The occurrence took place some-time between 11.00 A.M. to 11.30 A M. The accused persons were found running towards Nawa Padar and an outcry was raised by Smt. Hukki and this resulted in several persons of the village assembling there. Smt. Sharda Dhappu arrived at the spot at about 12.00 noon. She was told about the presence of the accused persons. PW I Sajjansingh arrived at the spot at about noon. He saw the dead-body and was informed about the missing of silver and golden ornaments from the body of the deceased. He prepared its report at about 12 30 P.M. and sent it to the police with PW 11 Narendra Kumar, who presented it in the police station at 1.30 P.M. Thus, this report was very prompt. It has been received by the Munsif Magistrate; Banswara on 29th August, 1978 at 4.10 P.M. i.e. just within 27 or 28 hours of its recording and therefore, there is no scope for concoction so far as the F.I.R. in this case is concerned. It has been received by the Munsif Magistrate; Banswara on 29th August, 1978 at 4.10 P.M. i.e. just within 27 or 28 hours of its recording and therefore, there is no scope for concoction so far as the F.I.R. in this case is concerned. Learned counsel for the appellant tried to urge that there has been delay in sending the F.T.R. to the Court but that argument does not impress us because looking to the facts and circumstances of the case when the police soon after the receiving of the information because extremely busy with the investigation of the case, the reaching of the F.I.R. to the Magistrate within 28 hours cannot be said to Se a delayed submission of the F.I.R. It will be worth while to mention here that the substantial part of the investigation was finished on 27th August, 1978 itself including its night. 24. The accused persons were arrested at 4 P.M. This has been proved by PW 18 G.C. Gupta, Dy. S.P. He has proved the arrest memo of both the accused persons, which have been marked Ex. P 2 and 3. His testimony has been fully corroborated by PW 21 Jagdish Pd., S.H.O. Interrogation was immediately started and it has been alleged by PW 21 Jagdish Pd. that Manoharlal while in police custody informed him and the Dy. S P. that after killing Smt. Kesar, the silver and golden ornaments which came to his share i.e. three silver rings, and one golden chain were concealed by him below a Mahua tree near Higher Secondary School. His information memo is Ex.P. 19 which has been proved by PW 21 Jagdish Pd. and PW 18 Shri G.C. Gupta, Dy. S.P. Motbirs of the recovery are PW 13 Narbda Shanker and PW 16 Akbar Ali. Both these police officers PW 18 G.C. Gupta and PW 21 Jagdish Pd. have categorically stated that after the information was received the accused took them (Police officers) and the Motbirs with him and got the ornaments recovered by digging the earth 6" to 8" deep. According to these two police witnesses, ornaments were weighed and sealed at that very place and recovery memo of golden and silver ornaments recovered at the instance of Manoharlal was prepared and his been marked Ex. P 10. According to these two police witnesses, ornaments were weighed and sealed at that very place and recovery memo of golden and silver ornaments recovered at the instance of Manoharlal was prepared and his been marked Ex. P 10. PW 13 Narbada Shanker has stated that on the day, Smt. Kesar died, accused Manoharlal while in custody took them near Higher Secondary School under a Mahua tree in the field. He got recovered three silver rings, one golden chain. According to him, these articles recovered were wrapped in a piece of paper a cloth and were taken to the police station, where sealing process was undertaken. He has proved his signatures A to B on Ex. P 10. PW 16 Akbarali has also fully supported the testimony of Shri Narbda Shanker. It was stated that these silver rings etc. were got recovered by the accused Manoharlal by digging a hole in the field. He does not remember whether the police sealed these recovered articles on the spot or not. He has further stated that the place from where the articles were recovered was open and was situated near the public way. According to him, Chhaganlal was present at that time. But Chhaganlal has denied his presence. According to him, the police station is at a distance of one furlong from the place where the recovery was made. He too, has stated in his cross-examination that the ornaments were weighed in the police station and were sealed there. 25. Learned counsel for the accused argued that the ornaments were not sealed on the spot but were sealed at the police station. Of course, there is conflict in the testimony of the police officers and the Motbirs tut the recovery memo which has been proved and has been admitted to be correct by all these witnesses contains the fact that all these ornaments were recovered at the instance of accused Manoharlal and were sealed then and there. Thus we cannot give more importance to the testimony of these witnesses who have stated that the stolen ornaments were sealed at the police station because these statement's go against the recovery memo Ex. P 10, which has been proved by them and which bears their signatures. Thus we cannot give more importance to the testimony of these witnesses who have stated that the stolen ornaments were sealed at the police station because these statement's go against the recovery memo Ex. P 10, which has been proved by them and which bears their signatures. Moreover these witnesses have not stated that they even left the police alone till these articles was sealed and so,even if they were sealed in the thana (police station) which was one furlong away from the place of recovery. It hardly affects their testimony regarding recovery of these crime articles. On the information and at the instance of the accused Manoharlal, there is little scope for substitution of such valuable articles. 26. Likewise PW 18 G. C. Gupta and PW 21 Jagdish Pd. have further stated that accused Inderlal also gave information that after killing Kesar and after taking golden and silver ornaments viz., 2 silver kadas, 2 bangles with silver patties golden kanful and panariyas and two pieces of golden chain were tied by him in a handkerchief and they have been concealed by him near a big mahua tree behind Partapur School in the grass situated near a hush. He has stated that these ornaments which came to his share were concealed by him at that place. This information has been marked Ex. P 20 and has been proved by both these witnesses. It has been stated by these two witnesses and both the Motbirs that after giving this information accused Inderlal led them to Mahua tree situated behind the school and got the following articles recovered : (i) one pair of silver Kaddas; (ii) one golden kanful; (iii) five golden panariyas etc. According to the police, the recovery memo Ex. P II was prepared at that very place and the articles were seized and scaled then and there. However, PW. 13 Narbda Shanker and PW 16 Akabarali have stated that these articles under the earth but that does not minimise the importance of the testimony of the prosecution witnesses that the recovery was made on the information and at the instance of the accused on that very day when the occurrence took place. It is the information and recovery consequent there to which becomes material in deciding such cases. 27. It is the information and recovery consequent there to which becomes material in deciding such cases. 27. In State v. Amarsingh, 1971 RLW 409 , it has been held by Division Bench of this Court as under : "Possession of the premises from where the articles were recovered does not appear to be the true test of the matter. This is a discovery on account of the information given by the accused person. This discovery itself is a gurantee of truth of the statement made by the accused person. In the ultimate analysis the principle behind the provisions of s. 27 of the Indian Evidence Act is that whenever a thing i. discovered as a result of information given by an accused person, the danger of admitting confession to the police officers disappears and the confession stands confirmed by facts. The discovery affords gurantee in regard to the truth of information itself." It has been held in Kottaya v. Emperor, AIR 1947 PC 67 by the Privy Council as follows : "It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced. The facts discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact." A Division Bench of Kerala High Court in Narayana Pillai v. State of Kerala, 1968 Cr. L.J. 1362 laid down that information leading police to the place where accused said he threw away the incriminating knife is admissible in evidence. 28. The statement of the accused that he threw or concealed the articles at a very particular place is also admissible in evident under s. 27 of the Evidence Act. In this case the accused has categorically stated that it is he who put or concealed these ornaments in I' high grass near a Mahua tree and so, this statement is also admissible in evidence under section 27 of the Evidence Act as per the decision in Kalooram v. State of Raj., 1971 RLW 266 . It is not a case of recovery after a long time and so State of Raj. v. Manga, 1973 Cr. LJ 1075 is not applicable to the facts of this case. 29. It is not a case of recovery after a long time and so State of Raj. v. Manga, 1973 Cr. LJ 1075 is not applicable to the facts of this case. 29. In Ayodhya Singh v. State of Rajasthan, AIR 1972 SC 2501 , their Lordships of the Supreme Court have been pleased to hold that the house breaking and theft in the house of K took place on a certain date and within 17 days, a large number of stolen articles were recovered from appellant's house from his person and from a lonely spot in graveyard (which was open and accessible to all) in pursuance of disclosure statement of appellant. The recovery was held to under s. 27 of the Evidence Act and on the basis of which, the accused was connected with the crime and the courts below were held justified in drawing the presumption that appellant was guilty of offence under sections 457 and 380 IPC. 30. In the case on hand, all the stolen ornaments removed from the person of the deceased were recovered within 4 to 6 hours of the occurrence. The circumstances appearing against the appellant were put to them in their statement under s. 313 Cr. PC but they have stated that neither they gave information about the recovery of the articles nor they got any articles recovered. Thus, this is not a case whet e accused persons have nit been given an opportunity to explain this part of the testimony in their statements under s. 313 Cr. PC. Hence Mohanlal v. Ajit Singh, AIR 1978 SC 1183 cannot be applied to the fact and circumstances of this case because the circumstances appearing against accused were put to them in their statements under sections 313 Cr. PC in this case and their explanations were obtained. 31. In this case such a recent possession of the ornaments which were stolen from the person of the deceased give rise to the presumption that these persons have also committed the murder of Smt. Kesar Bai. PC in this case and their explanations were obtained. 31. In this case such a recent possession of the ornaments which were stolen from the person of the deceased give rise to the presumption that these persons have also committed the murder of Smt. Kesar Bai. In this respect, we place reliance on Pukharaj v. The State of Raj., 1970 WLN Part I, 518 wherein a Division Bench of this Court observed as follows : "The provision under illustration (a) to S. 114, Evidence Act is so more than an example and the presumption arising thereunder extends to all charges, however, penal including murder or causing hurt while committing robbery. In cases in which murder or robbery are shown to form part of one transaction, recent and unexplained possession of the stolen property, in the absence of circumstances tending to show that the accused was only the receiver of the property, would not only be the presumptive evidence against him on the charge of robbery but also on the charge of murder. No hard and fast rule can be laid down as to what inference can be drawn from a certain circumstances. In Pooran v. The State of Rajasthan, 1978 RLW 272 it has been laid down by a Division Bench of this Court as follows : "that the accused-appellant Pooran precisely knew the place wherefrom a piece of gold chain (Ex. 7) was recovered. The accused got discovered this piece of gold chain which undoubtedly belonged to the deceased Nawab Singh. It has also been proved by unimpeachable evidence, as discussed above that Nawab Singh (since deceased) was seen wearing gold chain prior to his murder. The gold chain was found missing on the dead body of Nawab Singh and the same was recovered at the instance of the accused from the place of its concealment. The prosecution has thus succeeded in proving, beyond any reasonable doubt, that the commission of this murder and theft formed part of one transaction and the recent and unexplained possession of the gold chain (Ex. 7) by the appellant justifies the presumption that it was he and no one else who had committed the murder and the other crime. The prosecution has thus succeeded in proving, beyond any reasonable doubt, that the commission of this murder and theft formed part of one transaction and the recent and unexplained possession of the gold chain (Ex. 7) by the appellant justifies the presumption that it was he and no one else who had committed the murder and the other crime. Proved facts, in our opinion, are sufficient in Law and fact to lead us to the conclusion that the accused was not only guilty of theft or having received the stolen property but of murder as well. In the proved facts of this case, the recovery of a piece of gold chain Ex. 7 at the instance of the accused appellant is not compatible with any other reasonable hypothesis other than the guilt of the accused-appellant." Reliance is also placed in this respect on the case State of Raj. v. Nanu Ram, 1977 RLW 241 , wherein a Division Bench of this Court observed that where robber and murder found integral part of the same transaction, there the recent and unexplained possession of the stolen property is presumptive evidence on a charge of robbery with murder. 32. The next part of the prosecution story relates to the recovery of one Chuga and one Katia. PW 8 G.C. Gupta and PW 21 Jagdish Pd. have stated that on 29th August, 1978, accused Manoharlal gave the information about one Chuga and accused Inderlal gave an information about the recovery of one Katia. Both these information's have been marked Ex. P 24 and Ex. .P 21 respectively and have been proved by these witnesses. Both the information's are dated 29th August, 1978. It is alleged that on 30th August, 1978, accused Manoharlal got one Chuga recovered from the kitchen of his house and accused Inderlal got one iron Katia recovered from his house. The recovery memos have been marked Ex. P 6 and 7 respectively. These recoveries have been also proved by PW 10 Devilal and PW 13 Narbda Shanker. Katia is Article 9 and Chuga is Article 8 which have been identified by the witness in the court. However, this type of the articles could be found with any gold-smiths and so, these recoveries cannot be used to connect them with the guilt. We, therefore, place little reliance on the recoveries of Article 8 and Article 9. 33. Katia is Article 9 and Chuga is Article 8 which have been identified by the witness in the court. However, this type of the articles could be found with any gold-smiths and so, these recoveries cannot be used to connect them with the guilt. We, therefore, place little reliance on the recoveries of Article 8 and Article 9. 33. The golden and silver ornaments were got identified by PW 2 Smt. Sharda and PW 3 Chhaganlal. The identification was conducted by PW 19 Shri P.S. Shukla who was then working as Chief Judicial Magistrate, Banswara. According to him, both the witnesses have identified all the articles belonging to Smt. Kesar. He has prepared the identification memo Ex. P 4. In Ex. P 4 at X to Y he has named one Phool Shankar but he has admitted that that was a mistake. Actually the ornaments were identified by Chhaganlal and Smt. Sharda and not by Phoolshankar. 34. Phoolshankar has actually identified his handkerchief in which the ornaments recovered at the instance of the accused Inderlal were tied. Shri Phoolshanker has been examined as PW 9. He has stated that on 27th August, 1978, a day prior to the day of occurrence, he was taking tea in a hotel. Inderlal came there and jocularly pulled away the handkerchief from his neck. On the next day Kesar was killed. He was asked to identify his handkerchief and he has identified it before the Chief Judicial Magistrate. He has admitted his signatures A to B on Ex. P 5. PW 19 Shri P.S. Shukla has also proved the testimony regarding the recovery of this handkerchief. This evidence also show; that the handkerchief, in which these ornaments were tied and were put in one foot high grass by Inderlal was taken by Inderlal from Shri Phoolshanker and, therefore, entire chain of events connect accused Inderlal with the crime. 35. Learned Public Prosecutor argued that in this case the fact of theft or robbery and murder are so intermingled that a presumption is to he drawn not only on the basis of the recovery but the surrounding circumstances regarding the seeing of the accused at the place of the occurrence when conclusively proves that these were the accused-persons who killed Smt. Kesar and recovered the ornaments from her dead body. We have already discussed the three Division Bench rulings of our own High Court in support of this contention of the learned Public Prosecutor. 36. Learned counsel for the accused-appellant while relying on Nagappa v. State of Karnataka and Fakirchand v. State argued that mere recovery of stolen property may indicate that the theft and murder must have been committed at the same time. It is not safe to draw inference that the person in possession of the stolen property was a murderer and suspicion cannot take place of proof. He has, therefore, submitted that on the basis of mere recovery from the accused-persons, they can he held guilty for the charge under sections 380 and 457 IPC. As held in Ayodhya Singh's case (6), the accused persons cannot be held guilty of murder. 37. We differ from the argument advanced by the learned counsel for the appellant and rightly so, because it is not a case of mere recovery of golden and silver ornaments. We have already held that the possession of the accused-persons of the recovered articles was very recent i.e. within 6 hours of the occurrence. The theft took place between I 1 and 11.30 A.M. cm that day. Smt. Kesar was seen alone at 11.00 AM by Smt. Hukki. Smt. Kesar was found dead at about quarter to 12 noon on that very day. It was found that her silver and golden ornaments which she was wearing on her person were found missing and, therefore, the theft and murder are very much inter-mingled and part of one transaction and therefore, a reasonable inference should be drawn from the recovery of these articles that the accused-persons are responsible for strangulation of Smt. Kesar. However, in the case before us, the prosecution has also led evidence that these accused-persons were found on the roof of Smt. Kesar's house at the relevant time. They jumped from the roof of her house and were found running in the lane. However, in the case before us, the prosecution has also led evidence that these accused-persons were found on the roof of Smt. Kesar's house at the relevant time. They jumped from the roof of her house and were found running in the lane. When they were jumping from the roof, doors of Smt. Kesar's house were bolted from the inside and so, this recovery coupled with this evidence leads to the one and only one conclusion that these are the two accused persons who after forming a common intention strangulated Smt. Kesar in the kitchen in her house while she was in the process of taking meals and after Smt. Kesar died, they took away all the golden and silver ornaments which sh. was wearing on her body. No other hypothesis is possible in this case. It has been observed in State of Rajasthan's case as follows: "The mere fact that the accused took three days in making up his mind to give information to the police cannot possibly afford a valid reason for rejecting the information, in consequence of which ornaments of the deceased and other articles connected with the crime have been discovered." In the case in hand, the information's were given by both the accused-persons on the very day Smt. Kesar was killed and therefore, the learned Sessions Judge was perfectly justified in holding the accused-persons guilty of the offence under s. 302/34 IPC. 38. The accused-persons have entered the house of Smt. Kesar in order to kill her and to take away her ornaments and therefore, the learned Sessions Judge has rightly convicted the accused-persons for the offence under s. 449/34 IPC. 39. The conviction of the accused-persons under s. 397/34 IPC cannot be sustained because of the language of the charge framed against them. The charge says that after they killed Smt. Kesar, they took away the ornaments from her body. The charge should have been that in order to rob her of her ornaments, she was killed. If some body takes away the ornaments from a dead body, it is a case of theft not of robbery and, therefore, the accused-persons could be convicted only under s. 380/34 IPC and not under s. 397/34 IPC. 40. We, therefore, partly accept this appeal, maintain the conviction and sentence of the accused-persons under Ss 302/34 and 449/34 IPC. If some body takes away the ornaments from a dead body, it is a case of theft not of robbery and, therefore, the accused-persons could be convicted only under s. 380/34 IPC and not under s. 397/34 IPC. 40. We, therefore, partly accept this appeal, maintain the conviction and sentence of the accused-persons under Ss 302/34 and 449/34 IPC. However, we set aside the conviction of both the accused-persons Inderlal and Manoharlal under s. 397/34 IPC and instead, convict them of the offence under s. 380/34 IPC and sentence each one of them to 3 years rigorous imprisonment with a fine of Rs. 200/-. In default of payment of this amount of fine, the accused-persons shall further undergo three months' rigorous imprisonment respectively. The substantive sentences shall run concurrently. The order of the learned Sessions Judge, Banswara regarding disposal of the articles is upheld.Appeal partly accepted. *******