Judgment :- Arunachalam, J, J. ( 1 ) ALL the four appellants who were arrayed as A. 1 to A. 4 in S. C. 155 of 1984, on the file of the Third Additional Sessions Judge, Madurai, were tried on seven charges. The first charge was framed against all of them under Section 120-B Indian Penal Code on the allegation that on or about 18th December 1983, all the appellants conspired to commit theft in the house of P. W. 2 Subramaniam and if there was resistance to commit murder to achieve their object. The 2nd charge under Section 457 Indian Penal Code was framed against A. 2 to A. 4 alleging that they had committed the offence of lurking house trespass, late in the night, in order to commit theft, on 18th December, 1983. The3rd charge under Section 302 read with Section 34 Indian Penal Code was also framed against A. 2 to A. 4 for having caused the death of Kaveriammal while committing robbery. The 4th charge under Section 302 read with Section 109 Indian Penal Code indicated A. 1 for having abetted commission of murder of Kaveriammal by A. 2 to A. 4. The 5th and 6th charges were framed against A. 2 to A. 4 under Sections 394 and 392 Indian Penal Code respectively. (P. W. 1 and the deceased ). The last charge was framed against A. 1 under Section 392 and Section 394 Indian Penal Code read with Section 109 Indian. Penal Code. ( 2 ) AFTER an elaborate trial, the learned Sessions Judge round all the appellants guilty of all the charges. Accordingly they were convicted and each one or them was sentenced to undergo imprisonment for life on the first charge (Section 120-B I. P. C ). Under charge 2, A. 2 to A. 4 were sentenced to undergo rigorous imprisonment for five years. A2 to A4 under charge 3 and A. 1 under charge 4 were sentenced to undergo imprisonment for life (Section 302 and Section 302 read with Section 109 I. P. C ). Under charges 5 and 6, A. 2 to A. 4 were sentenced to undergo rigorous imprisonment for seven years (Sections 394 and 392 I. P. C) and under the last charge, A. 1 was sentenced to undergo rigorous imprisonment for seven years (Sec. 392 and 394 I. P. C ). Under charges 5 and 6, A. 2 to A. 4 were sentenced to undergo rigorous imprisonment for seven years (Sections 394 and 392 I. P. C) and under the last charge, A. 1 was sentenced to undergo rigorous imprisonment for seven years (Sec. 392 and 394 I. P. C ). The substantive sentences of imprisonment were directed to run concurrently. ( 3 ) THE prosecution case needs narration Krishnasami (A. 2) is the brother-in-law of Shanmughayya (A. 1 ). Muthupandi (A. 3) is the son-in-law of A. 1 and Ramachandran (A. 4) is stated to be a friend and associate of A. 1. P. W. 1 Kamalammal is the wife of P. W. 2 Subramaniam. Deceased Kaveriammal was the mother of P. W. 2 and mother-in-law of P. W. 1. P. W. 5 Gurumurthy is the son of P. Ws. 1 and 2. P. W. 7 Anuradha is the wife of P. W. 5. P. W. 3 Venkatachalam Was residing adjacent to the house of P. W. 2. He was then the Head-master of the Corporation Senior Secondary School, Madurai. P. W. 4 Balachandran is the son of P. W. 3. P. W. 2 Subramaniam was residing at Kamalathope Street, Madurai along with his mother deceased Kaveriammal and his wife P. W. 1 Kamalammal. The said house was owned by P. W. 2. His son P. W. 5 and his daughter-in-law P. W. 7 were residing separately at South Krishnan Koil Street, Madurai. P. W. 2 served as Assistant Divisional Engineer in the Electricity Board before he retired. A. 1 was known to the family of P. W. 2 for over 25 years. It was P. W. 2, who had obtained a job in the Electricity Board for A. 1, while he was in service. A. 1 had worked under P. W. 2 at several places where the latter was posted. Even after retirement A. 1 used to visit the residence of P. W. 2 quite often and do odd jobs entrusted to him by the members of the family of P. W. 2. At or about the time of occurrence, he was working as a First Grade Mechanic in the Electricity Board at Madurai. ( 4 ) P. W. 2 had purchased M. O. 4 a green coloured B. S. A. Delux Cycle from P. W. 6, Maythinaselvan. At or about the time of occurrence, he was working as a First Grade Mechanic in the Electricity Board at Madurai. ( 4 ) P. W. 2 had purchased M. O. 4 a green coloured B. S. A. Delux Cycle from P. W. 6, Maythinaselvan. The receipt issued by P. W. 6 to P. W. 2 is Ex. P. 3 while Ex. P. 4 is the sale receipt obtained by P. W. 6 when he purchased this cycle from Meenakshi Amman Mart. M. O. 4 used to be kept in the verandah, adjacent to the collapsible gate in the front yard of the house of P. W. 2. A. 1 used to take the cycle H. O. 4 to do odd jobs for the family of P. W. 2. On entering into the verandah of the house of P. W. 2 on the eastern side, there was a room in which an iron safe and a trunk box used to be kept. Certain pieces of jewellery belonging to the family of P. W. 2 had been kept in the iron safe and the trunk box. P. W. 7, the daughter-in-law of the house had also entrusted her two-row gold chain (M. O. 20) to the deceased Kaveri for safe custody. The said chain bore the marking A. G. . The iron safe and the trunk box were under the control of deceased Kaveriammal. Kaveriammal would invariably lock the collapsible gate with M. O. 1 (a Navthal lock) daily and keep its key M. O. 2 which was in a key bunch on the table inside the hall. P. W. 1 and the deceased almost always used to take their bed in the hall adjacent to the verandah, which was separated only by the entrance path. On the way to the hall, there are two rooms on the northern side. From the hall one could reach the kitchen and the open Mutram. Between the kitchen and the Mutram, there was a gate. The house had a first floor, which could be reached by using the stair-case adjacent to the collapsible gate. The entrance to the stair case had a door. It was always kept locked. P. W. 2 owned a rice mill at Nanmani village and lands at Mullipallam Cholavanthan. Between the kitchen and the Mutram, there was a gate. The house had a first floor, which could be reached by using the stair-case adjacent to the collapsible gate. The entrance to the stair case had a door. It was always kept locked. P. W. 2 owned a rice mill at Nanmani village and lands at Mullipallam Cholavanthan. P. W. 2 used to be away from Madurai quite often to take care of agricultural operations and running of the rice mill. ( 5 ) P. W. 10 Kader Batcha, owned a cycle repair shop at the junction of- Kamalathope Street and Tamil Sankam Road. From his cycle shop the house of P. W. 2 would be visible. P. W. 10 knew A. 1 A. 3 and A. 4. P. W. 11 Vellikkannu was running a waste paper shop at Pachiamman padidurai, Madurai. P. W. 12 Marimuthu was a dhobi for the family of P. W. 2. It was A. 1 who used to take the clothes of the members of the family of P. W. 2 to him, for the purpose of washing. To the clothes of A. 1, he used to assign dhobi mark V. 5 since the name of A. ls father was Vilangaiyya. To the clothes of P. W. 2 and the members of his family, he used to affix dhobi mark T211 He has identified M.O. 48, a Thandloom towelt bearing dhobi mark V. ST. as the one belonging to P. W. 2, brought for washing by A. 1. While giving evidence, P. W. 12 has stated that M. O. 48 bore the dhobi mark V. S. 21 ( 6 ) P. WS. 15, 18, 19 and 21 were examined to show that A. 1 was in need of money. P. W. 15 Gurusami a resident of Pazhankanatham, has deposed that 2 years prior to his deposition A. 1 had borrowed Rs. 18,000. 00 from him on a promissory note. After the involvement of A. 1 in this case, his wife obtained Rs. 12,000. 00 as loan from him, and mortgaged her house under the deed Ex. P. 9. Ex. P. 6 is the document of title of the house mortgaged. ( 7 ) P. W. 18 Ayyavoo is also a resident of Pazhankanatham. About 2 1/2 years prior to his deposition, A. 1 had borrowed Rs. 15,000. 12,000. 00 as loan from him, and mortgaged her house under the deed Ex. P. 9. Ex. P. 6 is the document of title of the house mortgaged. ( 7 ) P. W. 18 Ayyavoo is also a resident of Pazhankanatham. About 2 1/2 years prior to his deposition, A. 1 had borrowed Rs. 15,000. 00 from him on a promissory note, which was later repaid. P. W. 19 Ettappan was residing at Southvasal, Madurai. About 2 1/2 years prior to his deposition, A. 1 borrowed Rs. 3,000. 00 for the marriage expenses of his daughter on a promissory note, Ex. P. 12. A. 1 paid Rs. 90. 00 towards interest. But he did not make any further payments. P. W. 21 Palanisami is yet another resident of Pazhankantham. 2 years prior to his deposition, he had lent Rs. 10,000. 00 to A. 1 on a promissory note. A month thereafter A. 1 repaid the said loan. ( 8 ) P. W. 20 Baskaran was running a cycle shop at Pazhankanatham under the name and style MBV. He knew A. 1 and A. 4. A. 1 used to take on hire cycles from him. P. W. 20 used to make entries of cycles hired from his shop in Ex. P. 13, a book maintained for that purpose. P. W. 14 Anbuganesan was the owner of an auto-electrical shop at Tamil Sankam Road. He knew the house of P. W. 2 situated in Kamalathope Street. ( 9 ) ON 18. 12. 1983, P. W. 5 and P. W. 7 visited the house of P. W. 1 and were present there till about 4 P. M. When they went to the house of P. W. 1 in the morning at or about 11 a. m. , they found A. 1 taking wast paper to be sold in the shop of P. W. 11. After some time A. 1 purchased firewood for the family of P. W. 2. Around 2 P. M. A. 1 left the house of P. W. 1. ( 10 ) P. W. 10, while he was in his cycle shop, was approached by A. 1 at or about 11 A. M. on 18. 12. 1983, to fill in air to the cycle M. O. 4. Around 2 P. M. A. 1 left the house of P. W. 1. ( 10 ) P. W. 10, while he was in his cycle shop, was approached by A. 1 at or about 11 A. M. on 18. 12. 1983, to fill in air to the cycle M. O. 4. P. W. 10 checked the tyre and stated that it contained sufficient air and filling up of more air will lead to bursting of the tyre. After directing P. W. 10 to clean the cycle, A. 1 went over to the house of P. W. 1. Soonafter A. 1 left, A. 3 anda. 4. arrived at the shop of P. W. 10, on a cycle. They questioned P. W. 10 if A. 1 was available in the house. Even while they were enquiring him, A. 1 came hack to the shop of P. W. 10. A. 1 then had a key bunch with him. He removed one key from the key bunch and handed it over to A. 4 and asked him to arrange for making another similar key. A. 3 and A. 4 went away taking the model key. ( 11 ) P. W. 9 Mohamed Ali is a lock repairer currying on his trade at Puthumandapam. At or about 11. 30 a. m. on 18. 12. 1983, A. 3 and A. 4 produced before him a key M. O. 2 and requested him to prepare another identical key. P. W. 9 made a duplicate key M. O. 3 and obtained Rs. 2. 50 for the same. When P. W. 9 questioned why there was a need for a second key, A. 4 stated that one other duplicate key was lost and hence there was a need for one more. A. 3 and A. 4 returned with the duplicate key to the shop of P. W. 10, after about 45 minutes, and questioned about A. 1. At or about the same time, A. 1 reached the shop of P. W. 10 to receive the duplicate key from A. 4. A. 1 returned to the house of P. W. 1 with the duplicate key. M. O. 3 is the duplicate key. Thereafter A. 3 and A. 4 left the scene while A. 1 took M. O. 4 and went towards the house of P. W. 1. A. 1 returned to the house of P. W. 1 with the duplicate key. M. O. 3 is the duplicate key. Thereafter A. 3 and A. 4 left the scene while A. 1 took M. O. 4 and went towards the house of P. W. 1. A. 1 went over to the house of P. W. 1 with M. O. 3 and returned sometime thereafter. He handed over M. O. 3 to A. 4. 11. P. W. 25 Murthy though treated hostile, was examined to speak of the conspiracy hatched by the appellants at or about 9 p. m. on 18. 12. 1983 in the street opposite to the house of A. 1. P. W. 25 had stated during investigation that A. 1 called A. 4 and directed him to go to the house of P. W. 2 and open the outer-door with the duplicate key. He also told A. 4 that only women folk would be available. He should tie their hands and legs and gag their mouths to prevent them from crying and shouting. He further told A. 4 that only the old lady would create problems. If he was not able to manage he should kill the old lady. A. 4 left A. 1, stating that he would take care of everything. ( 12 ) AT or about 8. 30 p. m. on 18. 12. 1983 as was usual deceased Kaveryammal locked the collapsible gate with M. O. 1 lock, and kept the key bunch containing M. O. 2 on the table, inside the hail. P. W. 1 and the deceased thereafter had their dinner (Poories ). After dinner, they played the game of Pallankuzhi for sometime and took their bed by spreading carpets in the hall. P. W. 1 was sleeping on the eastern side, which the deceased laid herself down on the western side M. O. 50 Watt bulb, a night lamp, was burning then,. While she was in slumber, P. W. 1 felt that some-one was closing her mouth. She immediately called her mother-in-law Athai, Athai. She was able to notice, the identifying features of the person who was closing her mouth. He was of moderate height and dark complexioned. She has identified the said person as A. 4. While she was in slumber, P. W. 1 felt that some-one was closing her mouth. She immediately called her mother-in-law Athai, Athai. She was able to notice, the identifying features of the person who was closing her mouth. He was of moderate height and dark complexioned. She has identified the said person as A. 4. A. 4 had put a lime in her mouth and tied her mouth with a cloth piece P. W. 1 was unable to shout any further. The said person (A. 4) removed the gold nose screw M. O. 8, M. O. 10 and M. O. 11 series two pairs of bangles; M. O. 12 gold chain, M. O. 13 Karugamani Malai with bells; M. O. 14 - two row gold chain; and M. O. 15 a ring with coral, from the person of P. W. 1. Shocked P. W. 1 had palpitation and naturally laid herself down. She was able to realise that 3 or 4 persons were inside the house, moving about. She also heard vessals being removed from the kitchen. Sometime later, she felt as though water was flashed on her face. After a little relief from her shock, she got up and found that the tube light M. O. 6 was burning in the hall. Her mother-in-law was lying in her bed in a crude pattern. When she went near, she found that the mouth of her mother-in-law was tied with a cloth piece, so also her hands. P. W. 1 removed the mouth gag and called her mother-in-law Athai Athai. There was no response. She further found that her mother-in-law was not breathing. Gripped with fear, she went over to the house of her neighbour, P. W. 3. At or about 1. 30 a. m. P. W. 3, and his son P. W. 4, on hearing a knock at their door found to their surprise, P. W. 1 beckoning them. P. W. 1 told them that some persons had committed robbery in her house. P. Ws 3 and 4 rushed to the house of P. W. 1. P. W. 4 untied the hands of deceased Kaveriammal. He also found, that the deceased had breathed her last. P. W. 4 then went over to the house of P. W. 5 and informed him of the untoward incident in his house. P. Ws 3 and 4 rushed to the house of P. W. 1. P. W. 4 untied the hands of deceased Kaveriammal. He also found, that the deceased had breathed her last. P. W. 4 then went over to the house of P. W. 5 and informed him of the untoward incident in his house. In fact P. W. 4 told P. W. 5, that his grand-mother was found breathless, in her house. When P. W. 4 returned to the house of P. W. 1, on the dictation of the latter, he wrote down a complaint, in which the latter signed. In Ex. P. 1 so recorded, P. W. 4 signed as an attestor. Thereafter P. Ws. 1, 3, 4 and 5 with Ex. P. 1 proceeded to the B. 4 Police Station. P. W. 30 Kamatchi, the then Sub Inspector of Police, received Ex. P. 1 at or about 3. 45 a. m. on 19. 12. 1983, and registered Crime No. 2880 of 1983 under Sections 302 and 394 Indian Penal Code. He prepared the printed First Information Report Ex. P. 32 and sent Ex. P. 1 and P. 32 through police constable Nethaji Mohan (P. W. 29) to the Judicial II Class Magistrate No. 2, Madurai. The concerned Judicial II Class Magistrate had received Exs. P. 1 and P. 32 at 6a. M. on 19/12/1983. ( 13 ) P. W. 30 forwarded injured P. W. 1 through police constable 1910 (not examined), with a requisition Ex. P. 5, to the Government Rajaji Hospital Madurai for examination and treatment. P. W. 13 Dr. Athiaman examined P. W. 1 at 8 a. m. on 19/12/19r3 for injuries stated to have been sustained, due to an assault by unknown persons, on the earlier night (time not known ). The doctor found on P. W. 1 an abrasion on the dorsum of right hand 2 cm x 2 cm, another abrasion on the dorsum of left hand of similar measurement and a contusion on the left upper lip 2 cm x 2 c. m. There was no fracture. The injuries were simple in nature. Ex. P. 6 is the extract of the Accident Register. P. W. 30 requisitioned the services of the finger print expert and the photographer. The Dog Squad was also sent for. The injuries were simple in nature. Ex. P. 6 is the extract of the Accident Register. P. W. 30 requisitioned the services of the finger print expert and the photographer. The Dog Squad was also sent for. Over the telephone P. W. 30 informed P. W. 34 Govindan the then Inspector of Police, of the registration of this crime. ( 14 ) P. W. 34 took up investigation and reached the scene of occurrence at 6 a. m. on 112. 1983. P. W. 23 photographer took photographs of the scene and the corpse in different angles, in the presence of P. W. 34. M. Os. 58 and 59 series are the photographs and corresponding negatives. P. W. 24, Radhakrishnan, the finger print expert, noticed some chance prints in M. O. 55 Ever-silver tumbler found inside the kitchen; M. O. 53 Ever-silver cup found in the western room and M. O. 54 snow bottle. He arranged for photographs of the prints in M. Os. 53 to 55, being taken. He then handed over M. Os. 53 to 55 to the Investigating Officer. He had requested the Investigating Officer to forward the finger prints of the inmates of the house to him. On 20.12.1983 he received the finger prints of P. Ws. 1, 2 and 5, Angammal and Lakshmi (both of them not examined ). The finger prints found in M. Os. 53 to 55 did not tally with any of those finger prints. P. W. 24 requested for finger prints of suspects, as and when available. He received the finger prints of the appellants on 21/12/1983 (oral evidence ). On a comparison, he found that the finger print in M. O. 53 tallied with middle finger of A. 2; the finger print in M. O. 54 tallied with finger print of the thumb of A. 3; the finger print in M. O. 55 tallied with the left middle finger print of A. 4; Exs. P. 18 to P. 21 are the finger prints of A. 2 to A. 4. M. O. 65 is the enlarged finger print of the right middle finger of A. 2. M. O. 67 is the enlarged finger print of the thumb of A. 3; M. O. 69 is the similar enlarged finger print of the left middle finger of A. 4. The negatives of the fingerprints of A. 2 to A. 4 are M. Os. M. O. 67 is the enlarged finger print of the thumb of A. 3; M. O. 69 is the similar enlarged finger print of the left middle finger of A. 4. The negatives of the fingerprints of A. 2 to A. 4 are M. Os. 61 to 63. The enlarged finger prints found in M. Os. 53, 54 and 55 have been marked as M. O. 64; M. O. 66 and M. O. 68. Ex. P. 22 and P. 13 are the reports of P. W. 24. Meanwhile at 6 A. M. on 15. 12. 1983, P. W. 34 prepared Ex. P. 7 the observation mahazar, in the presence of P. W. 14. He also prepared the scene sketch Ex. P. 41. He seized from the scene M. O. 1 lock, M. O. 2 brass key, M. O. 3 Iron key, M. 049 green bedsheet; M. O. 50 blood stained Turkish towel, M. O. 48 blood stained handloom towel, M. O. 51 lime, M. O. 7 part of a tiffin carrier with two limes, M. O. 2 series, and ever silver cup with inscription AG (M. O. 53), white snow bottle (M. O. 54), Eversilver tumbler (M. O. 55) with mark (AG), green jacket M. O. 56, M. O. 5 0 wall bulb; M. O. 6 tube light and M. O. 76 brass-key with hook, under Mahazar Ex. P. 8 attested by P. W. 8. He conducted inquest over the corpse of Kaveriammal between 10 a. m. and 1 p. m. , during the course of which he examined P. Ws. 1, 3, 4 and 5. Ex. P. 42 is the inquest report. After inquest, he forwarded the dead body through police constable Chinnaraj (P. W. 28) with a requisition Ex. P. 14, to the Government Rajaji Hospital, Madurai for the conduct of post-mortem. ( 15 ) P. W. 22 Dr. Thiagarajan, conducted autopsy on the corpse of Kaveriammal at 2. 30 P. M. on 19/12/1983. The body was that of a female moderately nourished, aged about 83 years. There was blood stained discharge from the nostrils. Mouth and eyes were found closed. There was sub-conjunctival haemorrhage in both eyes. Tip of fingers and toes and nails were found cyanosed. The doctor noticed the following injuries: 1. Linear cresentric abrasion 1. 30 P. M. on 19/12/1983. The body was that of a female moderately nourished, aged about 83 years. There was blood stained discharge from the nostrils. Mouth and eyes were found closed. There was sub-conjunctival haemorrhage in both eyes. Tip of fingers and toes and nails were found cyanosed. The doctor noticed the following injuries: 1. Linear cresentric abrasion 1. 5 c. m. obliquely transverse concavity downwards right side of the upper part of the neck with surrounding contusion with dried bloodstains around the area. 2. Multiple four linear abrasions present over the upper part of the left side chest and neck opliquely above upwards each measuring 0. 5 c. m. , close to the bridge of the nose with surrounding contusion. 3. Abrasion nose left side 1 x 0. 5 c. m. close to the bridge of the nose with surrounding contusion. 4. Transversely curved linear abrasion seven in number each measuring 1 cm in length 3 in the inner side of the upper lip and 4 in the inner side of the lower lip with surrounding contusion of the lips. 5. Contusion linear 3 x 1. 5 c. m. back of the right hand and wrist obliquely transverse with few superficial linear abrasions. 6. Contusion linear 2 x 1. 5 c. m. back of the outer side of the left hand close to the wrist transverse with few superficial linear abrasion. 7. Contusion back of the scalp 5 x 4 c. ms. On dissection of the neck contusion right side of the neck below the external injury No. 1 with contusion on the right stenomastoid with blood clots. Fracture right side greater cornue of hyoid bone with surrounding contusion. Fracture right superior horn of thyroid cartilage and fracture cricoid cartilage right side. Dissection on the floor of the mouth a lime fruit weighing 38 grams present closing the larynx post part of the oral cavity. T The lungs were found congested and pedematous. The heart contained fluid blood on the right side, while the left side was empty. Petchial haemorrhage was noted. Congested bloodstained frothy mucous was present in Larynx and Trachea. Stomach contained 120 ml of brown colour mucous fluid. Liver, Spleen and Kidneys were found congested. Intestine contained 20 c. c. of straw colour fluid. The heart contained fluid blood on the right side, while the left side was empty. Petchial haemorrhage was noted. Congested bloodstained frothy mucous was present in Larynx and Trachea. Stomach contained 120 ml of brown colour mucous fluid. Liver, Spleen and Kidneys were found congested. Intestine contained 20 c. c. of straw colour fluid. In the opinion of the doctor, the deceased would appear to have died of asphyxia due to throttling (manual strangulation), smoothening (closure of mouth and nostrils) and gagging (introduction of foreign body through the oral cavity ). Ex. P. 15 is the postmortem certificate. The deceased could have died around 1 or 1. 15 a. m. on 19/12/1983. .( 16 ) DURING the course of investigation P. W. 34, examined P. W. 7, P. W. 14, P. W. 29, P. W. 28, P. W. 30, P. W. 10, P. W. 13, P. W. 22 and P. W. 25. .( 17 ) P. W. 2, who received information at Nenmani village, reached his residence on the evening of 19. 12. 1983. To his dismay, he found that the jewels kept in the trunk box and the iron safe, were also missing. He therefore preferred a complaint Ex. P. 2 listing out the missing jewellery, from the trunk box and the iron safe. P. W. 34, who received Ex. P. 2, examined P. W. 2. .( 18 ) P. W. 16, Srinivasan, was the then Assistant Engineer, M. R. T. Division, Tamil Nadu Electricity Board, Pasumalai. A. 1 was working under him. At or about 12 noon on 19. 12. 1983, A. 1 informed P. W. 16 that he had to urgently leave for his village and handed over Ex. P. 10, the leave application, to P. W. 16. However, P. W. 16 directed A. 1 to hand over the leave application to P. W. 17 Balakrishnan, the concerned Assistant Engineer. Thereafter A. 1 did not report for duty. After learning that A. 1 had been arrested, during investigation P. W. 17 produced Ex. P. 10 the leave application and Ex. P. 11 the covering letter. .( 19 ) P. W. 8 Madasamy, a Rickshaw puller used to park his rickshaw at the North veli rickshaw stand. Two years prior to his deposition, on a Sunday at or about 1. P. 10 the leave application and Ex. P. 11 the covering letter. .( 19 ) P. W. 8 Madasamy, a Rickshaw puller used to park his rickshaw at the North veli rickshaw stand. Two years prior to his deposition, on a Sunday at or about 1. 45 a. m when he was present behind Sakthysivam Theatre with his rickshaw, he noticed two persons travelling on a cycle coming towards him from Kamalathope street. Behind them a person came walking. P. W. 8 knew A. 3 earlier. On the request of A. 3, at or about that time, he took him in his rickshaw to Pazhankanatham village, via west Masi Street, bus stand and over bridge. On the way, A. 3 requested him to remove the top since he was sweating. A. 3 paid him Rs. 5/- as hire charges. .( 20 ) P. W. 34 constituted a special squad to apprehend the accused. On 20/12/1983 at or about 2 P. M. , P. W. 34 arrested A. 1 near Jansirani park, Madurai, in the presence of P. W. 26 Thangapandi. On arrest, A. 1 produced from his waist M. O. 17 a Kasimalai, which was seized under Mahazar Ex. P. 25 attested by P. W. 26. A. 1 volunteered a statement the admissible portion of which is Ex. P. 24. In pursuance of his statement, A. 1 took P. W. 34 and his party to his house at Pazhanganatham and from a box, took out a cloth bag M. O. 70 bearing inscription milan. From inside M. O. 70: A. 1 produced M. O. 18 a gold Kodinagathu; M. O. 19 a three row wheat pattern gold chain studded with white stones; M. O. 20 - 2 row gold chain with inscription AG; M. O. 21 series a pair of gold bangles weighing 2 1/2. sovereign; M. O. 22 a diamond ring and M. O. 23 a Thulasimalai with Ayyappan dollar. P. W. 34 seized them under Mahazar Ex. P. 26. Under the same mahazar P. W. 34 seized M. O. 4 cycle, produced by A. 1 from his house. At or about 4. 30 p. m. , A. 1 pointed out A. 2, who was available at the entrance of the Periar bus stand. A. 2 was arrested. P. W. 34 seized them under Mahazar Ex. P. 26. Under the same mahazar P. W. 34 seized M. O. 4 cycle, produced by A. 1 from his house. At or about 4. 30 p. m. , A. 1 pointed out A. 2, who was available at the entrance of the Periar bus stand. A. 2 was arrested. A. 2 was holding a yellow colour bag M. O. 71, from which he produced M. O. 12 straw pattern gold chain, M. O. 14 two row gold chain weighing 9 sovereigns; M. O. 24 a gold chain with pearls and uthiraksham and M. O. 25 a nine gems chain with a silver dollar. They were sized under Mahazar Ex. P. 27, attested by P. W. 26. The search for the other accused continued. At or about 6 P. M. , opposite to Chinthamani Theatre, Madurai, P. W. 34 arrested A. 3, on being identified by A. 1. A. 3 volunteered a confession, the admissible portion of which is Ex. P. 28. In pursuance of his statement, A. 3 took P. W. 34 and his party to his house. After digging a portion of the flooring in the front room, A. 3 took out a cloth bag, M. O. 72 which contained M. O. 8, a diamond nose screw; M. O. 9 another nose screw with ordinary stone; M. O. 13 Karukamani chain with pearls; M. Os. 26 to 37 respectively pearl bangles; gold pathakkam with red stones and pearls; a pearl chain; two row pearl chain with stones, a Bullakku (nose ornaments) with red stones; a pair of anklets; gold dollar; a Lakshmi gold coin; a pair of gold Kappu; Karukamani chain with gold pottu; fallen down gold pieces from M. O. 35; one diamond Pavithra ring and M. Os. 43 to 46 namely gold thali pottu, 5 pieces of earring; gold dollar in the shape of Om; and a nose screw with a red stone. They were seized under Mahazar Ex. P. 29. A. 1 to A. 3 were taken to the Police Station and kept in lock up. P. W. 9 was examined, on being pointed out by A. 3, on 21/12/1983. On 21/12/1983 at or about 4 P. M. at the junction of Chinnakadi Veethi and Eazhuthanikarar Street, P. W. 34 arrested A. 4, in the presence of P. W. 27. EX. P. W. 9 was examined, on being pointed out by A. 3, on 21/12/1983. On 21/12/1983 at or about 4 P. M. at the junction of Chinnakadi Veethi and Eazhuthanikarar Street, P. W. 34 arrested A. 4, in the presence of P. W. 27. EX. P. 31 is the admissible portion of the statement volunteered by A. 4. A. 4 had in his possession a bag M. O. 73, which contained M. O. 10 (a pair of bangles); M. O. 15 (a gold ring with coral); M. O. 16 (4 bangles weighing 6 sovereigns); M. O. 21 (a pair of gold bangles wighing 2 1/2 sovereigns); M. O. 38 to 42 (a pair of diamond earrings; another pair of diamond earrings; a diamond ring; a gold ring weighing one sovereign; a rakkoti (head ornament) containing green and red stones made of silver and gold plated ). These material objects produced by A. 4, were seized under Mahazar Ex. P. 30, attested by P. W. 27. A. 4 also pointed out P. W. 9. .( 21 ) DURING investigation P. W. 34 seized Ex. P. 9 from P. W. 15. On 21/12/1983, P. W. 34 showed the jewellery seized, to P. W s. 1 and 2 who identified them as the jewellery robbed from them. .( 22 ) P. W. 34 requested for the conduct of an identification parade, by forwarding Ex. P. 44, a letter, to the Chief Judicial Magistrate, Madurai. P. W. 31, the then Judicial II Class Magistrate, No. 2, Madurai conducted an identification parade on 6/1/1984. In that identification parade, conducted in accordance with law by P. W. 31, on 6/1/1984, P. W. 1 identified A. 4 alone. Ex. P. 34 is the record prepared by P. W. 31. Yet another identification parade was conducted on 24/1/1984. P. W. 8 identified A. 3 alone. Ex. P. 36 is the record of the identification proceedings held on 24/1/1984. .( 23 ) P. W. 34 forwarded the material objects seized during investigation for chemical analysis, through Court. Exs. P. 39 and 40 are reports of the Chemical Analyst and Serologist respectively. Ex. P. 13 was seized from P. W. 20 on 2/1/1984. After completion of investigation, P. W. 34 laid the charge-sheet against the appellants, before the committal Court, on 23/2/1984. .( 24 ) WHEN the appellants were examined under Section 313 Cr. Exs. P. 39 and 40 are reports of the Chemical Analyst and Serologist respectively. Ex. P. 13 was seized from P. W. 20 on 2/1/1984. After completion of investigation, P. W. 34 laid the charge-sheet against the appellants, before the committal Court, on 23/2/1984. .( 24 ) WHEN the appellants were examined under Section 313 Cr. P. C to explain the incriminating circumstances appearing against them in evidence, they chose to deny their complicity in the crime. They went on to add, that when they went over to the house of the deceased, on learning about her death, they were taken into custody by the police. They did not choose to adduce any evidence in defence. However, on their request, records in C. C. No. 334 of 1983 on the file of the Judicial II Class Magistrate, Madurai and C. C. No. 25 of 1984, on the file of the Chief Judicial Magistrate, Madurai were summoned, to ascertain, if P. W. 27 was a prosecution witness, in those calender cases also. .( 25 ) ON a consideration of the oral and documentary evidence, the learned trial Judge accepted the prosecution case, rejected the defence and dealt with the appellants in the manner indicated earlier. .( 26 ) MR. N. Dinakar, learned Counsel representing Appellants 1 to 3 contended, that Ex. P. 2 could not have come into existence as alleged by the prosecution. He pointed out several pieces of evidence, to substantiate his contention that the appellants ought to have been arrested much earlier and a make believe story of confession and recovery, including tallying of thumb impressions, had been trotted out to bolster up a false case. He submitted that there was no truth, that A. 1 was in need of money, and that was very clear from the evidence on record. He specifically urged that M. Os. 53 to 55 were in the custody of P. W. 34, when he claims to have arrested the appellants. The finger prints of the appellants had not been obtained in a manner known to law and at the time alleged. There was every possibility of manipulation of, finger prints to connect the appellants with the crime. .( 27 ) MR. 53 to 55 were in the custody of P. W. 34, when he claims to have arrested the appellants. The finger prints of the appellants had not been obtained in a manner known to law and at the time alleged. There was every possibility of manipulation of, finger prints to connect the appellants with the crime. .( 27 ) MR. S. Ilangovan, learned counsel for the 4th Appellant contended, that P. W. 1 would not have been in a position to correctly identify A. 4 as the person who had entered inside her house, especially when she could have had only a fleeting glance of the offender during night time, when she woke up from slumber. If identification evidence cannot be safely accepted, the arrest and recovery has to be rejected, on the basis of a variety of grounds urged by Mr. M. Dinakar, which grounds he adopted. .( 28 ) ON these contentions, we have heard Mr. S. Shanmughavelayutham, learned Additional Public Prosecutor. He submitted that there was no scope for any false implication. A. 1, who knew the family of P. W. 2 very well, had taken advantage of the absence of P. W. 2 and had committed these grave crimes of murder and robbery, with the help of his brother-in-law; son-in-law and associate. The evidence of P. W. 1 cannot be disbelieved. Recoveries were effected within a short time after the commission of murder and hence a presumption is capable of being drawn under section 114 of the Indian Evidence Act, that the persons who possessed the jewellery of the deceased were not only robbers but murderers as well. As far as the thumb impressions of the appellants, stated to have been obtained, on the direction of P. W. 34, by Raman, Police Constable 1910, he was unable to contradict the various infirmities pointed out by the defence counsel. .( 29 ) AS we were hearing the appeal, we noticed a grave dereliction of duty by the Public Prosecutor, who was in charge of this prosecution, before the 3rd Additional Sessions Judge, Madurai Police Constable Raman, who is stated to have obtained the finger prints of A. 1 to A. 4, was not put in the witness-box, to connect Ex. P. 18 to P. 21, as the finger prints obtained by him, from the respective appellants. P. 18 to P. 21, as the finger prints obtained by him, from the respective appellants. We felt that it was equally unfortunate, that the learned Sessions Judge did not notice, this vital lapse. On perusal of the records received by this Court from the learned trial Judge, we found, that during investigation, statements under Section 161 Cr. P. C. had been recorded from Police Constable Raman. If that be so, we felt, that examination of Raman as a Court witness was essential to the just decision of the case. Copies of the Statements of Police Constable Raman, had been furnished to the appellants, even during trial, and hence they cannot complain of any prejudice. We summoned Raman, Police Constable 1910, and had examined him as Court witness No. 1, on 28/1/1992. The Additional Public Prosecutor did not desire to cross-examine C. W. 1. But the learned defence Counsel extensively cross-examined him. C. W. 1 was examined with reference to Exs. P. 18 to P. 21 which are already on record, as prosecution exhibits. After examination of C. W. 1, it was deemed necessary, that the Investigating Officer also, had to be examined, to elicit certain contradictions in the evidence of C. W. 1. We also felt it expedient to question the Investigating Officer, since his evidence appeared to be vital for a just decision. Hence P. W. 34 was examined on 28/1/1992 as C. W. 2. C. W. 2 was also cross-examined by the defence Counsel, and the learned Additional Public Prosecutor had no questions to be asked. 29. Daring robbery, obviously pre-planned, had been committed at the residence of P. W. 2, when his absence was known to the culprits whom-so-ever they may be. The offenders were apparently aware, that only two women aged 83 years and 55 years respectively, were available in the house on that unfortunate night. The manner in which the perpetrators of the crime had succeeded in their mission while nonchalanty committing murder too, clearly shows involvement of persons, either known to the household of P. W. 2, or aware of the habits of the members of that family. It also appears that only on this basis investigation had commenced, but unfortunately over-enthusiasm had cast a cloud of suspicion on the involvement of one or other of the appellants. Scientific evidence is not only welcome, but absolutely essential. It also appears that only on this basis investigation had commenced, but unfortunately over-enthusiasm had cast a cloud of suspicion on the involvement of one or other of the appellants. Scientific evidence is not only welcome, but absolutely essential. But such evidence must equally pass the test of strict scrutiny. If the evidence let in, on scientific basis, through finger prints of the appellants, to connect them with the crime, is unassailable, guilt of the appellants, would easily get flood-lighted. On the contrary, if such scientific evidence appears tainted, and looks as though, it had been let in to somehow or other fix the identity of the appellants with the crime, even the other foundation, gets cracked beyond repair. The investigating agency must be aware, that even sans scientific evidence of finger print connection with the crime, clinching evidence of recent and unexplained possession of the jewellery of the victim, coupled with movement evidence, would easily permit a presumption under Section 114 of the Indian Evidence Act, being drawn, that such persons were not only robbers but murderers as well. If clear scientific evidence is available, it should be placed before Court. But attempts to adduce such evidence also, haphazardly, to somehow or other connect suspected accused in the crime, to bolster up the other evidence, should not be resorted to, more So, when such evidence, as in the instant case, is open to grave doubt and consequent suspicion. ( 30 ) TALLYING of finger prints of A. 2 to A. 4, with the chance prints found at the scene, is the basis as well as the main piece of evidence to connect A. 2 to A. 4 with the crime. The case of A. 4 may stand on a slightly different footing, since his identifying features, have been stated by P. W. 1 in Ex. P. 1 and further she has identified him, in the identification parade held on 6/1/1984, by P. W. 31. Though finger prints of A. 1 were also obtained during investigation, they did not tally with the prints found at the scene. It is not even the prosecution case, that A. 1 was present at the venue of crime. It appears therefore proper to initially scrutinise the evidence relating to finger prints, which is the bastion of the prosecution. We have already commented, that care was not bestowed to connect Ex. It is not even the prosecution case, that A. 1 was present at the venue of crime. It appears therefore proper to initially scrutinise the evidence relating to finger prints, which is the bastion of the prosecution. We have already commented, that care was not bestowed to connect Ex. P. 18 to P. 21, as the finger prints obtained from the respective appellants, by examining constable Raman, who is stated to have obtained those finger prints. On 28/1/1992, We had examined Raman as C. W. 1. He claims to have taken the finger prints of A. 1 to A. 3, inside a lorry T. T. U. 1053 on 20/12/1983. He has further stated that on 21/12/1983, on information he went to Chinnakadai Ezhuthanikarar Street and took the finger prints of A. 4. However, C. W. 2 (P. W. 34 in the Court of Sessions) is certain, that the finger prints of A. 4 were taken in B. 4 Police Station. It has also been made clear by C. W. 2, that C. W. 1 had not stated specifically during investigation that the finger prints of A. 1 to A. 3 were taken near Chinthamani Theatre and that too inside a lorry. The place of obtaining of the finger prints of the appellants and particularly that of A. 4 is obviously divergent between these two witnesses, who claim to have been present, on both occasions, when finger prints of the appellants were taken, on two different dates. We have the evidence of P. W. 10, that on the date on which he was examined by the Police, the latter crime to his shop over again in the company of A1, A. 3 and A. 4. It is admitted by the prosecution that P. W. 10 was examined during investigation on 19/12/1983 around 11 or 11. 30 a. m. Therefore it is apparent, that during noon or slightly thereafter on 19/12/1983, A. 2, A. 3 and A. 4 were in the custody of the investigating police. If that be so, the claim of P. W. 34, that he had arrested A. l to A. 3 on2o. 12. 1983 between 2 P. M. and 6 P. M. and that A. 4 was arrested at 4 P. M. on 21. 12. 1983 is certainly open to doubt. If that be so, the claim of P. W. 34, that he had arrested A. l to A. 3 on2o. 12. 1983 between 2 P. M. and 6 P. M. and that A. 4 was arrested at 4 P. M. on 21. 12. 1983 is certainly open to doubt. P. W. 10 was not reexamined which should have been done by the prosecution, if it had thought that P. W. 10 was committing a bona fide mistake. The doubt we have entertained does not terminate with the evidence of P. W. 10, but extends to documentary confirmation as well through Ex. P. 22, the certificate of Latent Print Examination marked through the finger print expert P. W. 24. The contents of Ex. P. 22 are revealing. It refers to articles examined which are respectively ever-silver Kinnam (M. O. 53), empty snow-box (M. O. 54) and Eversilver tumbler (M. O. 55 ). The finger prints examined were that of inmates of the house P. W. 2, P. W. 5, P. W. 1, Angammal and Lakshmi (not examined ). The finger prints of the suspects examined were that of V. Krishnasamy (A. 2) Muthupandi (A. 3) and Ramachandran (A. 4 ). Ex. P. 22 refers to the phone message from the Inspector of Police dated 19/12/1983 and also memos of the same number 309/soc/ms/83 dated 20/12/1983; 21/12/1983 and 22/12/1983, sent to the Sub Inspector of Police, B. 4 (Det, Madurai), by the Finger Print Expert. In the report of finger print, the following statement has been made by P. W. 24. TIJ have examined and compared the chance prints marked as Ri, R2 and R3 (found on M. Os. 53 to 55) with the finger prints of inmates and SUSPECTS which were received at SDFP Section Madurai South on 20/12/1983 and my opinion are as follows: The chance prints marked as R. l to R. 3 are not identical with any of the above-said inmates. But the above chance prints marked as R. 1 to R. 3 were found identical with the F. Ps of the following suspects as detailed on next page. Ex. P. 22 further states, that chance print marked as R. 3 (M. O. 55) was identical with left middle finger of Ramachandran (A. 4), the mark on the slip being KI. Hence Ex. Ex. P. 22 further states, that chance print marked as R. 3 (M. O. 55) was identical with left middle finger of Ramachandran (A. 4), the mark on the slip being KI. Hence Ex. P. 22 confirms affirmatively, that the finger print of the suspects, A. 2, A. 3 and A. 4 were received at the Finger Change prints Identical Marked on Name of the marked as fingers the silp accused R. 1 Right Middle S. 1 I. Krisnasamy R. 2 Right thumb P. 1 Muthupandi sb shanmugaiah ??? R. 3 left Middle K. 1 Ramchandran Sb Irulandi Serval Print Bureau, even on 20/12/1983. If the finger print of A. 4 was available with the Finger Print Bureau on 20/12/1983, we are unable to comprehend how the prosecution could claim that A. 4 was arrested only on 21/12/1983 and thereafter his finger print was obtained by CW. 1, be it at Chinnakadai-Ezhuthanikarar Street or B. 4 Police Station. Further if A. 1 to A. 3 were arrested between 2 P. M. and 6 P. M. on 20/12/1983 and thereafter their finger prints were obtained by C. W. 1, it appears rather doubtful if the SDFP Section of the Finger Print Bureau could have received these finger prints, after working hours on 20/12/1983. Even if we take it that the prosecuting agency was so prompt in forwarding the finger prints of A. 1 to A. 3 soon after they were obtained, to the SDFP Section, Madurai South, on the very night, it is impossible to hold in favour of the prosecution as far as the finger print of A. 4 is concerned, which also is claimed to have been received on 20/12/1983, obviously even before the finger print of A. 4 is claimed to have been taken by CW. 1 in the presence of C. W. 2 on 21/12/1983 after his arrest at or about 4 P. M. The evidence of P. W. 10 and the contents of Ex. P. 22 probabilises the defence case, that all the accused were in the custody of the police even from 19/12/1983. In view of these grave infirmities, we decided to examine the finger print slips themselves to find out, if they could throw any light, as to when they were taken, for being forwarded to the Expert. Our decision to scrutinise Ex. In view of these grave infirmities, we decided to examine the finger print slips themselves to find out, if they could throw any light, as to when they were taken, for being forwarded to the Expert. Our decision to scrutinise Ex. P. 18 to P. 21 landed us not only in greater shock, but irreparable anguish as well. Ex. P. 18 is stated to be the finger print of A. 1 taken by C. W. 1 on the evening of 20/12/1983, in a lorry T. T. U. 1053, near Chintamani Theatre. We find the signature of CW. 1 with a date underneath it. A look at the date beneath the signature of CW. 1 makes it clear that 2 1/12/1983 had been corrected into 20/12/1983. Not only that, there is an entry on the left side of Ex. P. 18, which again bears the date. Here again, even for the naked eye, it is clear that 21. 12. 1983 had been corrected into 20/12/1983. The writing on the left bottom of Ex. P. 18 had been marked as EX. D. 1, on 28/1/1992, when defence Counsel cross-examined C. W. 1. On the right top of Ex. P. 18, there is again some writing which has been marked as EX. D. 3 by the defence, though C. W. 1 on 28/1/1992. EX. D. 3 reads as follows: Ex. D. 3: B. 4 Cr. No. 2880/83 u/s. 302 and 394 I. P. C - Shanmugaiya Thevar s/c. Valangaiya Thevar, 102, Andalammal Compound, Palanganatham, Madurai. EX. D. 1 apart from containing the altered date, reads as follows: Ex. D. 1 B. 4 (Det), Madurai P. S. , Madurai South. C. W. 1 claims, that Ex. D. 1 and D. 3 were not made by him, but were in the handwriting of the Writer of the police Station. Contrary to the evidence of C. W. 1, CW. 2 the Investigating Officer (P. W. 34) claims that EX. D. 1 and D. 3 are in the handwriting of CW. 1. C. W. 1 was constrained to admit, that when the finger prints were taken, he had not written anything on the finger print slips themselves, to indicate that the finger prints related to a particular individual. 2 the Investigating Officer (P. W. 34) claims that EX. D. 1 and D. 3 are in the handwriting of CW. 1. C. W. 1 was constrained to admit, that when the finger prints were taken, he had not written anything on the finger print slips themselves, to indicate that the finger prints related to a particular individual. In other words, he admitted that no contemporaneous record was made at the time when finger prints were obtained, from the various appellants that a particular finger print slip, will relate to one particular appellant. It is better to extract the answer of C. W. 2 to the Court question on this aspect. Q. Did you give instructions to write the names of the suspects while taking the finger prints? A. Yes, it was written by P. C. 1910. Endorsements have been made by the P. C. who accompanied me. Those endorsements have been disclaimed by C. W. 1. It is certain that the Writer, who was not present when the finger prints were taken, had made those endorsements at the police station later, when the finger print slips were handed over to him. Similarly excluding Ex. P. 19, which is the finger print of A. 2, even wherein the entry Ex. D. 4 had been made by the writer of the Police Station, according to C. W. 1, the other two finger print slips of A. 3 and A. 4 respectively Exs. P. 20 and P. 21 contain corrections in the date, 21/12/1983 or 20/12/1983, having been altered into 20/12/1983 and 21/12/1983 respectively. The manipulation of dates in Exs. P. 18, P. 20 and P. 21 further casts a very serious doubt if the finger prints of A. 1 to A. 4 could have been taken at all, as claimed by the prosecuting agency, on 20th and 21st December, 1983. It is further disturbing to notice that instructions under the Police Standing Orders relating to taking of finger prints had not been followed by C. W. 1 or C. W. 2. When a specific question was put to C. W. 1, that he did not follow the procedure contemplated under the Act or under the orders while he took the finger prints, he answered that he did not follow the procedure because of forgetfulness. When a specific question was put to C. W. 1, that he did not follow the procedure contemplated under the Act or under the orders while he took the finger prints, he answered that he did not follow the procedure because of forgetfulness. No evidence has been placed before Court that C.W. 1 was either trained or proficient in taking finger prints. The Police Standing Orders show that an Officer should be declared as a person competent by the Superintendent of Police, to take fingerprints. No such order is forthcoming. But C. W. 1 would claim that as per the order of the authorities, he had taken the finger prints of the accused. He does not appear to know even the types of finger prints. C. W. 1 claims to have taken 5 finger print slips of each one of the appellants totalling in all to 20 sheets, but only four of them had been forwarded to the Expert. The Police Standing Order specifies that finger prints had to be obtained in Form No. 141. C. W. 1 is not even aware of the existence of such form. C. W. 2 (P. W. 34) would have it that four finger print slips will have to be taken from each of the suspects and in this case he could not remember as to how many finger print slips were taken for each of the accused. The evidence of C. Ws. 1 and 2, apart from exhibiting shabbiness and lack of knowledge of the procedure to be followed, while taking finger prints, casts a substantial doubt as to the time, place and manner in which the finger prints of A. 1 to A. 4 had been obtained. If as stated earlier A. 1 to A. 4 should have been in the custody of the police even on 19/12/1983 or in any event, inclusive of A. 4 on 20/12/1983, the whole exercise of obtaining finger prints, projects itself to be a make believe affair, totally farthered away from the truth. .( 31 ) IN this context, it would be worthwhile to refer to certain provisions of the Identification of Prisoners Act 1920 (Act No. 33 of 1920 ). The object of this Act was to authorize taking of measurements and photographs of convicts and others. .( 31 ) IN this context, it would be worthwhile to refer to certain provisions of the Identification of Prisoners Act 1920 (Act No. 33 of 1920 ). The object of this Act was to authorize taking of measurements and photographs of convicts and others. The word measurements has been defined under Section 2 (a) of the Act to include finger impressions and foot-print impressions and under Section 2 (b), it is stated that TPolice Officer means an Officer in charge of a Police Station, a police officer making an investigation under Chapter XIV of the Code of Criminal Procedure, 1898 (5 of 1898) or any other police officer not below the rank of Sub-Inspector. Section 3 of the Act concerns itself with taking of measurements etc. , of convicted persons. In the instant case we are not concerned with this Section. Section 4 deals with taking of measurements or photographs of non-convicted persons, Section 4 reads as follows: 114 Taking of measurements of photographs of non-convicted persons, Any person (a) who has been arrested - i. under section 55 of the Code of Criminal Procedure; 1898, or under section 4 of the Bombay Beggars Act, 1945; ii. in connection with an offence punishable under section 122 of the Bombay Police Act, 1951, or under section 6 or 9 of the Bombay Beggars Act, 1945, or in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards, or (b) in respect of whom a direction or order under section 55 or 56 of the Bombay Police Act, 1951, or under subsection (1) or (2) of section 23 of the Bombay Beggars Act, 1945, or under section 2 of the Bombay Public Security Measures Act, 1947, has been made, shall, if so required by a Police Officer, allow his measurements or photograph to be taken in the prescribed manner. T A look at Section 4 of the Act shows, that any person who had been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards (as far it is relevant to this case) shall, if so required by a police Officer allow his measurements or photograph to be taken in the prescribed manner. .( 32 ) SECTION 4 refers to taking of measurements etc. of habitual offenders against whom restriction order is made. .( 32 ) SECTION 4 refers to taking of measurements etc. of habitual offenders against whom restriction order is made. We are not concerned with this section in the present appeal. Section 5 deals with the power of a Magistrate to order a person to be measured or photographed. Under this Section if a Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a Police Officer. Such an order can be made only by a Magistrate of First Class and further unless the person has at some time been arrested in connection with such investigation or proceeding. The Act does not say, that Section 5 refers to the prescribed manner spell out in Section 4 of the Act. The power of the Magistrate under Section 5 of the Act does not seem to affect the power of a Police Officer, to take finger prints or photographs of the persons arrested in connection with, the various facets referred to under Section 4 of the Act. .( 33 ) SECTION 6 takes in its fold permissibility of use of lawful means necessary to secure measurements or photographs when resistance is offered or refusal is indicated by the person concerned. Such resistance or refusal, according to Section 6 of the Act shall be deemed to be an offence punishable under Section 186 of the Indian Penal Code. We are not concerned with Section 7 of the Act. .( 34 ) SECTION 8 confers powers on the State Government to make rules for the purpose of carrying into effect the provisions of this Act. It was stated by the learned Public Prosecutor, that the State of Tamil Nadu had not framed any rules for the purpose of carrying into effect the provisions of the Act. After careful consideration of Sections 4 and 5 of the Act, we are unable to agree with Mr. It was stated by the learned Public Prosecutor, that the State of Tamil Nadu had not framed any rules for the purpose of carrying into effect the provisions of the Act. After careful consideration of Sections 4 and 5 of the Act, we are unable to agree with Mr. N. Dinakar, that invariably during investigation a person arrested must be taken before a Magistrate and orders obtained before the finger prints of such persons could be taken by a Police Officer. Sections 4 and 5 operate in different fields and obviously if the State Government had made any rules for the purpose of carrying into effect the provisions of this Act, the Investigating Officer, ought to have followed such rules which would fall within the ambit of prescribed manner contemplated under Section 4 of the Act. If the State Government has not made any rules under the Act, it will be the duty of the investigating Officer, to follow Police Standing Order 836. Police Standing Orders are in the nature of instructions given, to be followed by the Police force. Police Standing Order 836 (3) (a) defines finger prints as including prints of thumb and are either Trolled or plain, P. S. 0, 836 (3) (f) defines proficient to be an officer, who has been declared by a Superintendent of Police or in the City of Madras by the Commissioner of Police, to be qualified to take clear and well-rolled impressions. The method of taking finger prints with reference to appliances, forms part of P. S. O. 836 (4) (a ). P. S. O. 836 (4) (d) states that prints should invariably be taken on the authorised Finger-Print Slip (Form No. 141 ). It also states, that the headings of the slip are self-explanatory: .( 35 ) IF Form No. 141 had been used in the instant case, the various infirmities we have pointed would in all possibility, not have occurred at all. .( 36 ) P. S. O. 836 (4) (k) reads as follows: Finger impressions shall be taken only by officers declared by a Superintendent or, in the City of Madras, by the Commissioner of Police, to be qualified to take clear and well-rolled impressions. None of the provisions of Police Standing Order 836 had been followed by the investigating agency. .( 36 ) P. S. O. 836 (4) (k) reads as follows: Finger impressions shall be taken only by officers declared by a Superintendent or, in the City of Madras, by the Commissioner of Police, to be qualified to take clear and well-rolled impressions. None of the provisions of Police Standing Order 836 had been followed by the investigating agency. Of course, it is possible to argue that Police Standing Orders do not have statutory force and therefore non-following of the Standing Order cannot be held in favour of the appellants. Even if the provisions of the Police Standing Orders had not been complied with and if the obtaining offinger prints from the appellants in the manner spoken to by C. Ws. 1 and 2, did inspire confidence, we would have still to consider if non-following of the procedure of the Police Standing Orders, was only irregular, which did not affect the fact of finger print impressions having been obtained by C. W. 1 in the presence of C. W. 2, as claimed by the former. We have already pointed out several infirmities, which taint the whole process of obtaining of finger print impressions and probably less said it would be better for the prosecution. We think it necessary that the State Government must make rules under Section 8 of the Identification of Prisoners Act 1920 for the purpose of carrying into effect the provisions of this Act. Some of the State Governments have made rules. A proper procedure in obtaining finger prints must be followed for otherwise, the sanctity of scientific evidence not only gets obliterated but also becomes an exercise in futility. ( 37 ) IN State of Bombay v. Kathi Kalu the Apex Court observed as follows: (10) To be a witness may be equivalent to furnishing evidencet in the sense of making oral or written statements, but not in the larger sense of the expression so as to including giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. Furnishing evidence in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that-though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject-they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being completed to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution makers were aware of the existing law, for example, S. 73 of the Evidence Actor Sections 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920), Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so: Measurements include finger impressions and foot-print impressions: If any such person who is directed by a Magistrate under Section 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by Section 6 to use all necessary means to secure the taking of the required measurements of photographs. Similarly Section 73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison. (11) The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not to be a witness. To be a witness means imparting knowledge in ,respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. To be a witness means imparting knowledge in ,respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. A person is said to be a witness to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely (1) oral testimony, (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharmas case, 1954 SCR 1077 : (A. I. R. 1954 SC 300) that the prohibition in Cl. (3) of Art. 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy, If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of Section 139 of the Evidence Act, which, in terms, provides that a person may beummoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents. In our opinion therefore, the observation of this Court in Sharmas case 1954 S. C. R. 1077: (A. I. R. 1954 S. C. 300) that S. 139 of the Evidence Act has no bearing on the connotation of the word witness is not entirely well founded in law. In our opinion therefore, the observation of this Court in Sharmas case 1954 S. C. R. 1077: (A. I. R. 1954 S. C. 300) that S. 139 of the Evidence Act has no bearing on the connotation of the word witness is not entirely well founded in law. It is well established that C1. (3) of Art. 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a personal testimony. The giving of a personal testimonyt must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness. The Apex Court has made reference to Sections 5 and 6 of the Identification of Prisoners Act and Section 73 of the Evidence Act .( 38 ) IN Shankaria v. State of Rajasthan, the Supreme Court while negativing the contention of the learned Counsel, that in view of section 5 of the Identification of Prisoners Act, it was incumbent on the police to obtain the specimen thumb impression of the appellant before a Magistrate and since that was not done, the opinion rendered by the Finger-print Expert by using those illegally obtained specimen finger impressions, must be ruled out of evidence, held that the contention appeared to be misconceived because in the State of Rajasthan, the police were competent under Section 4 of the Identification of Prisoners Act, to take the specimen finger-prints of the accused, which they did in the presence of Superintendent of Police. It was therefore not necessary for them to obtain an order from the Magistrate for obtaining such specimen finger-prints. .( 39 ) KRISHNASWAMY Reddy, J in T. Subbaiah Alias Subbaraj v. S. K. D. Ramaswamy Nadar held, that the Magistrate had no jurisdiction under Section 73 of the Evidence Act, to direct the petitioner therein to give his specimen handwriting or signature when the charge-sheet had not been filed. The learned Judge observed as follows: The Magistrate can direct a person to give his finger prints in the course of investigation by the police only by virtue of Section 5 of the Identification of Prisoners Act, in appropriate cases, but not under Section 73 of the Evidence Act though the finger prints are included therein for the purpose of comparison, in a case like the present one. In yet another portion of the Judgment, the learned Judge observed as follows:In the Punjab case, the impressions of the Palms and fingers of the accused were taken by the Police in the course of investigation in the presence of a Magistrate, obviously under the provisions of Section 5 and 6 of the Identification of Prisoners Act. Some more observations in SUBBIAHS case need extraction. Some more observations in SUBBIAHS case need extraction. Furthermore it must be assumed that the Constitution makers were aware of the existing law, for example Section 73 of the Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920) 5. 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so:Measurements include finger impressions and footprint impressions. If any such person who is directed by a Magistrate, under Section 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs. It has been declared lawful by Section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly Section 73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison. Nowhere in this passage we find that Section 73 of the Evidence Act authorises the Court to take the finger impression or specimen handwriting of the person present in Court in the Course of investigation by the police. The learned Judge had not laid down, that invariably during investigation arrested persons will have to be produced before a Magistrate under Section 5 of the Identification of Prisoners Act 1920, before their finger prints could be obtained. We cannot overlook, that the finger print impressions, measurements or photographs of a person could not possibly be fabricated by any agency in view of their intrinsic nature and inherent characteristics. We need not have to go into the question in the instant case, if Section 4 does not directly apply to a case, where the accused person is arrested in connection with an offence punishable with death, as held by the Bombay High Court in Nizammuddin Usman v. State of Maharashtra and Usman Ismail. We need not have to go into the question in the instant case, if Section 4 does not directly apply to a case, where the accused person is arrested in connection with an offence punishable with death, as held by the Bombay High Court in Nizammuddin Usman v. State of Maharashtra and Usman Ismail. .( 40 ) DUE to a variety of factual infirmities pointed out by us, inclusive of the procedure adopted to obtain finger prints, we are not able to accept safely, the arrest and consequent recoveries, either from the person of the appellants or in pursuance of the particulars gathered, from their confessional statements. The vital link in the prosecution case thus gets shaped. While on the question, we have to advert to one another argument of the learned defence Counsel, that P. W. 24, the Expert, has not deposed in his substantive evidence, of the reasons which impelled him to conclude that specimen finger print impressions obtained from one or other of the accused, tallied with the finger prints found on M. Os. 53 to 55, recovered from the scene. It was pointed out that Ex. P. 22, the report cannot be treated as substantive evidence. The learned Additional Public Prosecutor while meeting this argument submitted that the Expert had stated, that on the basis of the ridges and identical points found in finger prints in M. Os. 53 to 55 and the finger prints of A. 2 to A. 4, he had offered his opinion in Ex. P. 22. This according to the learned Additional Public Prosecutor would suffice and every detail found in Ex. P. 22, need not have to form part of his substantive evidence. He further contended that under Section 293 Cr. P. C. Ex. P. 22 would be admissible in evidence, even without examination of the Expert. Section 293 Cr. P. C, permits using as evidence in any Enquiry or trial or other proceedings under the Code, any document purporting to be a report under the hand of a Government Scientific Expert to whom that Section applied, upon any matter or thing duly submitted to him, for examination or analysis and report, in the course of any proceeding under the Code. The Court of course has the power, if it thinks fit, to summon for examination any such expert, as to the subject matter of his report. The Court of course has the power, if it thinks fit, to summon for examination any such expert, as to the subject matter of his report. The Section applies, among others, to the Director of the Finger Print Bureau. Ex. P. 22 has been signed by the Finger Print Expert, District Finger Print Bureau, Kamarajar District, Virudhunagar and not by the Director of the Finger Print Bureau. The report of the finger print expert does not fall within any of the categories contemplated under Section 293 (4) Cr. P. C. Hence Ex. P. 22 cannot be used in evidence without the examination of the Finger Print Expert. Therefore the prosecution must be deemed to have been aware of the need to examine P. W. 24, to substantiate his report Ex. P. 22. Prima facie it appears that the evidence of P. W. 24, on the reasons which prompted him to offer his opinion in Ex. P. 22, is bereft of details which he ought to have spoken. On the facts and circumstances in the instant case, no further probe into this question is deemed necessary. It will always be better and indeed very relevant for the Expert to offer the reasons, which prompted him to arrive at his conclusions, in his substantive evidence, so that prejudice to the cross-examiner, cannot be claimed. .( 41 ) IT was again pointed out by the learned defence Counsel, that the finger print Expert himself did not take photographs and the photographer had not been examined. It may be that in certain cases examination of the photographer may be very relevant, but the non-examination of the photographer, in this case, does not appear to enure in favour of the appellants. .( 42 ) THERE is yet another infirmity, which as claimed by the defence, does cast a serious doubt on the acceptability of finger print evidence, in this prosecution. The taint attached to finger print evidence can be summarised, thus: M. Os. 53 to 55 which were handed over by P. W. 24 the Expert, to the Sub Inspector of Police, even at the scene were forwarded to Court on 19. 12. 1983, only to be returned to be kept in the custody of the police officer himself, till they were received back in Court on 22. 12. 1983. It is thus obvious, that M. Os. 12. 1983, only to be returned to be kept in the custody of the police officer himself, till they were received back in Court on 22. 12. 1983. It is thus obvious, that M. Os. 53, 54 and 55, which are stated to have contained the finger prints of the appellants were available with the investigating agency from 19. 12. 1983 till 22. 12. 1983, within which period, the prosecution claims to have arrested the appellants and obtained their finger prints. We have already detailed various deficiencies, insurmountable as they are, in the process of obtaining finger prints. Coupled with that, the availability of M. Os. 53 to 55, with the Investigating Officer, at or about the time, when the finger prints were taken from the or other of the appellants, probabilises possible manipulation. Mr. S. Shanmughavelayutham, learned Additional Public Prosecutor would strenuously contend, that it would not be proper to hold, that the finger print of A. 4 had also reached the expert even on 20. 12. 1983 as found in the body of Ex. P. 22, for the report refers to certain memos on 21. 12. 1983 and 22. 12. 1983 as well, which would be sufficient to indicate, that the finger print impressions of A. 4 must have been received on 21. 12. 1983 or 22. 12. 1983. This argument has no substance, since the memos referred to under Sl. No. 2 in Ex. P. 22 correlate to Exs. P. 17, P. 16 and P. 23, sent to the Sub Inspector of Police, B. 4 (Det, Madurai), by Finger Print Expert, P. W. 24. 41. If on the basis of our above discussion, we have to exclude the finger print evidence as not worthy of safe acceptance, and we have to further hold, that in all possibility the appellants were in the custody of the police, long before the claimed arrest on 20. 12. 1983, and 2 1. 12. 1983, obviously the recovery evidence would pale into insignificance, and hence we have to find out as to what still remains in the prosecution case, after eschewing all the material aforestated. 42. P. W. 25, Murthy is the only witness examined by the prosecution, to speak of the conspiracy hatched by the appellants. However, he did not support the prosecution and was treated hostile. 42. P. W. 25, Murthy is the only witness examined by the prosecution, to speak of the conspiracy hatched by the appellants. However, he did not support the prosecution and was treated hostile. Inspite of hostility, the learned Sessions Judge was of the view, that his evidence could be accepted, in the background of the evidence furnished by P. Ws. 8, 9 and 20. , regarding the movements of the appellants, on 18. 12. 1983. This approach, to our mind, will neither be proper nor justified, on the facts and circumstances of this case. .( 43 ) THE gist of an offence of conspiracy is the agreement to do an unlawful act. Mere evidence of association may not always be sufficient to lead to an inference of conspiracy. The agreement between the conspirators must be capable of being inferred from the established facts in a given case. There should be acceptable evidence to infer pre-mediation or pre-arranged plan by the assailants either to commit robbery and/or murder. The circumstances placed before Court to facilitate drawing of an inference-must be incapable of any other reasonable interpretation. It is true that the evidence of a hostile witness need not have to be rejected in toto and if circumstances so warrant could be taken in favour of the prosecution or the defence, as the case may be. Inherently the evidence of P. W. 25, even on the basis of what he had stated during investigation, which has been elicited in cross-examination by the learned Public Prosecutor, does not inspire confidence. P. W. 25 is a cycle rickshaw driver, who claims to have over-heard the conversation of the appellants, at the junction of the house of A. 1 and the Public Street. While A. 4 was leaving, P. W. 25 would have it, in his statement during investigation, that A. 1 beckoned him and advised, that the house of P. W. 2 could be opened with the duplicate key and inside the house only two ladies would be available whose hands and legs could be tied and the mouths gagged. If the old lady created any problem, he could kill her. A. 4 promised to take care of everything, before he left the scene. If the old lady created any problem, he could kill her. A. 4 promised to take care of everything, before he left the scene. If conspiracy to murder and commit robbery was hatched between the appellants, it is incongruous, that the plan was trotted out in a public street and that too within the hearing distance of P. W. 25. It is further odd, that A. 4 and A. 2 had casually arrived earlier in a cycle rickshaw and a little later A. 3 joined them, before all of them confided with Shanmugaiah (A. 1 ). Now that the evidence of P. W. 25 which appears inherently improbable, is further not available to the prosecution, in view of his hostility, it will not be safe to place any reliance on his evidence, merely on the basis of the other evidence, which we will refer to presently, to convict the appellants, on a charge of conspiracy, and other offences stated to have been committed in pursuance of such conspiracy. .( 44 ) SINCE the learned Sessions Judge had chosen to accept the evidence of P. W. 25 in the background of the evidence of P. Ws. 8, 9,10 and 20, it is better to scrutinise the evidence of those witnesses, in the present context. .( 45 ) P. W. 10 is a cycle repair shop owner. His shop was located at the junction of Kamala Thope Road and Tamil Sankam Road, in the vicinity of the house of P. W. 2. He claims to have known A. 1, A. 3, and A. 4 earlier. On 18. 12. 1983, at or about 11 a.m. , A. 1 had approached P. W. 10 for filling in air, in M. O. 4. Thereafter A. 1 had asked P. W. 10 to clean the cycle. A little later A. 3 and A. 4 are stated to have questioned P.W. 10, if A. 1 was available in the house. This obviously must refer the availability of A. 1 in the house of P. W. 2. Thereafter A. 1 had asked P. W. 10 to clean the cycle. A little later A. 3 and A. 4 are stated to have questioned P.W. 10, if A. 1 was available in the house. This obviously must refer the availability of A. 1 in the house of P. W. 2. It passes ones comprehension, if A. 3 and A. 4 really, could at all have asked P. W. 10, about the availability of A. 1 in P. W. 2s house for P. W. 10 is certain that both A. 3 and A. 4 not only used to visit the house of P. W. 1 quite often but also used to do odd jobs, of purchasing rice and fire-wood, entrusted to them, by the family members of P. W. 2. A. 3 and A. 4 could have themselves walked over to the house of P. W. 2, which was so nearby and found out about the presence of A. 1. Even if it be, that A. 3 and A. 4 wanted to avoid proceeding to the house of P. W. 2 on that morning, due to their prior concert to commit robbery, on the very same night in the house of P. W. 1, it appears odd, that A. 1 had so openly removed a key from a key bunch and handed it over to A. 4, with a request to make a duplicate key. In the normal course, the curiosity of P. W. 10 must have been aroused to find out why a duplicate key of the model key taken out from a key bunch, was sought to be made by A. 1 through A. 4. The hurry with which A. 4 had made the key and brought it back to be handed over to A. 1, again in the shop of P. W. 10, must have kindled his thoughts further more. It appears rather strange, that A. 1 went over to the house of P. W. 2 with the duplicate key, before he returned to the shop of P. W. 10 to hand over the duplicate key to A. 4. The instruction is that the manufactured key was tried in the lock with a guilty mind such ready reckoning may not be possible. The evidence of P. W. 10 appears rather tell-tale, even if true. The instruction is that the manufactured key was tried in the lock with a guilty mind such ready reckoning may not be possible. The evidence of P. W. 10 appears rather tell-tale, even if true. If the accused had conspired to use a duplicate key to gain entry into the house of P. W. 2, it appears rather fascinating, that they were so openly going about performing some acts to the knowledge of several others, in attaining their ultimate object. P. W. 10 seeks to identify M. Os. 2 and 3 in Court. When cross-examined, he was certain that he did not scrutinise the keys during exchange by obtaining them. The exchange transaction of the keys took place between A. 1 on the one hand and A. 3 and A. 4 on the other. It will be very difficult for P. W. 10 to identify the key, as the one connected with the crime. While considering the key manufacturing theory we cannot erase from our minds the evidence of P. Ws. 1, 2, 5 and 7. They used to hand over the keys to A. 1 quite often and further he was put in charge of the house, during the absence of the members of the family, in view of the trust imposed on him. If that be so, the evidence discloses, that even shortly before the crime, A. 1 was in charge of the house and if he had desired to manufacture a key, he could have very well done it in the absence of the inmates of the house of P. W. 2 rather than hurriedly obtaining a key by manufacture on the very day totally open to public gaze. On the basis of the evidence of P. W. 10 even if true it appears difficult to connect the appellants, safely with the crime. P. W. 9 is none other than the locksmith, who had prepared M. O. 3 on the same mould as that of M. O. 2, presented to him by A. 3 and A. 4 at or about 11. 30 a. m. on 18. 12. 1983. He claims to have made the duplicate key M. O. 3 within a short time, on payment of charges of Rs. 2. 50 by A. 4. 30 a. m. on 18. 12. 1983. He claims to have made the duplicate key M. O. 3 within a short time, on payment of charges of Rs. 2. 50 by A. 4. He had not known A. 3 and A. 4 earlier and he seeks to identify them in Court, since three days after the preparation of the duplicate key, P. W. 34 brought A. 3 to his shop, and asked him to identify, the latter. This portion of the evidence of P. W. 9 was objected to be the defence. Similarly it was the investigating agency, which produced A. 4 before P. W. 9. According to him it is as though A. 3 and A. 4 had pointed him out and on that basis, he was traced, though P. W. 34 would claim so. If P. W. 9 was a stranger to A. 3 and A. 4, and the investigating agency had also arranged for test identification parades for P. Ws. 1 and 8, it is notunderstandable why P. W. 9 was not taken to the parade to identify A. 3 and A. 4. It is very difficult to comprehend, how P. W. 9 was able to remember those two customers. His cross-examination discloses that he would be unaware of several of his other customers who had obtained duplicate keys from him. He was not even asked to identify M. Os 2 and 3 during investigation, for he claims that after he had manufactured them, he saw them over again, for the first time only in the Court hall. .( 46 ) THE evidence of P. W. 8 does not seem to connect the appellant with the crime. P. W. 8 is a rickshaw puller. He used to park his rickshaw in the North veli rickshaw stand. He claims to have known A. 3 earlier. If in fact he had known A. 3 earlier, it is not known why he was asked to identify A. 3 in a test identification parade conducted by P. W. 31 on 24. 1. 1984. According to him a person came behind two persons who were riding-on a bycycle, from Kamala Thope Junction at or about 1. 45 a. m. , on the night of a Sunday, approximately 2 years prior to his deposition in Court. At or about that time. A. 3 questioned him, if he was available for hire. 1. 1984. According to him a person came behind two persons who were riding-on a bycycle, from Kamala Thope Junction at or about 1. 45 a. m. , on the night of a Sunday, approximately 2 years prior to his deposition in Court. At or about that time. A. 3 questioned him, if he was available for hire. Thereafter he took A. 3 in his cycle rickshaw to Pazhanganatham via West Masi Street, Dindigul Road, bus stand and over bridge. A. 3 told him that he was perspiring and wanted the top of the rickshaw to be undone. He has not connected the three other persons, as having accompanied A. 3, on the fateful night. He has also not been able to identify those three persons. An innocusus act of A. 3 having travelled in a cycle rickshaw on a Sunday at or about 1. 45 a. m. alone, even if he had perspired on the way, does not lead to the inference that he was one of those connected with this crime. We have no hesitation in rejecting the evidence of P. W. 8, since nothing incriminating is found, against any of the appellants. ( 47 ) P. W. 20 is another Cycle hire shop owner having a shop at Pazhanganatham. He has not supported the prosecution case and was treated hostile. The prosecution would have it, that he had told during investigation, that at or about 8. 30 a. m. on 18. 12. 1983, A. 3 and A. 4 had come to his shop and A. 4 hired a cycle from him. He seems to have further stated during investigation, that A. 4 asked him to make an entry in the name of Pandi, who would return the cycle. The cycle was returned at 12. 30 noon by Muthu Pandi, after paying the hire charges. He has also stated that the person Pandi who had returned the cycle was not present in Court. The statement of P. W. 20 even during investigation, elicited in cross-examination by the Public Prosecutor, is so omnibus in character and not proximate to the time of crime. Obviously this evidence had been sought to let in, to show that A. 3 and A. 4 were travelling together on the morning of 18. 12. The statement of P. W. 20 even during investigation, elicited in cross-examination by the Public Prosecutor, is so omnibus in character and not proximate to the time of crime. Obviously this evidence had been sought to let in, to show that A. 3 and A. 4 were travelling together on the morning of 18. 12. 1983, during which period P. W. 10 claims to have met them in his shop, when they arrived on a cycle. When P. W. 20 has been treated hostile and the identity of the person, who had hired the cycle had not been established, it would be too arduous an exercise to give credence to this evidence merely to connect it with the evidence of P. W. 10. We reject the evidence of P. W. 20. Even if the versions of P. Ws. 9 and 10 were to be accepted, for sometimes truth is stranger than fiction and the mental make up of individuals cannot be predicted, those circumstances alone, without anything further, especially when the recovery evidence has been rejected, would not be sufficient to hold one or other of the appellants, guilty of murder or robbery. A few plausible links in the chain are of course there, but the missing links totally out-weigh them. .( 48 ) PROSECUTION has let in evidence of a few witnesses to indicate, that A. 1 was in need of money and hence there was every possibility of his having conspired to commit robbery, from the house of P. W. 2, when the latter was absent. P. W. 15 claims to have advanced Rs. 18,000. 00 to A. 1 approximately two years prior to his deposition in Court on the strength of a promissory note. Thereafter the wife of A. 1 obtained a loan of Rs. 12,000. 00 from him, subsequent to the involvement of A. 1 in this crime and executed a mortgage deed Ex. P. 9, for the total debt of Rs, 30,000. 00. EX. P. 9 was registered on 23. 12. 1983, three days after the commission of this crime. In crossexamination he has stated. that the promissory note was executed by the wife of A. l and not be A. 1 himself. He has not told during investigation that he had tom the promissory note soon after the execution of Ex. P. 9, the mortgage deed. Ex. 12. 1983, three days after the commission of this crime. In crossexamination he has stated. that the promissory note was executed by the wife of A. l and not be A. 1 himself. He has not told during investigation that he had tom the promissory note soon after the execution of Ex. P. 9, the mortgage deed. Ex. P. 9 does not refer to the earlier loan transaction. The document recites, that before the Registrar, Rs. 5,000. 00 was paid, while Rs. 25,000. 00 had been obtained earlier by the wife of A.1. to construct a building in the mortgaged site and for family expenses. The contents of the document Ex. P. 9 contradict the oral evidence of P. W. 15. .( 49 ) P. W. 18 Ayyavoo had lent Rs. 15,000/-on a promissory note to A. 1, 2 1/2 years prior to f his deposition, to celebrate the marriage of his (A. ls) daughter. The house document was handed over to P. W. 18. Further after the marriage, the loan was repaid. As to when exactly, the marriage of A. ls daughter took place, there is no a evidence. If A. l had repaid the borrowed sum to P. W. 18, it shows, that he was not in need of money. It is also not the prosecution case, that the A return of the loan by Al to P. W. 18 had any connection with robbery committed in this case. P. W. 19 had lent Rs. 3,000/-on a promissory note Ex. P. 12, to A. 1 on 14. 8. 1983. A. 1 had paid m interest of Rs. 90/- and the balance was yet to be paid. The obtaining of a loan has not been disputed by A. 1. The evidence of P. W. 21, that he as had lent Rs. 10,000/- to A. 1 two years prior to his 48 deposition which was also repaid within a month thereafter does not appear to have any sinister significance. The evidence of P. W. 21 is as vague as vaguness could be. It is very difficult to conclusively, conclude that A. 1 was in such dire need of M. money, that he had planned to commit robbery with the aid of his brother-in-law, son-in-law and his associate, to get out of his financial difficulties. The evidence of P. W. 21 is as vague as vaguness could be. It is very difficult to conclusively, conclude that A. 1 was in such dire need of M. money, that he had planned to commit robbery with the aid of his brother-in-law, son-in-law and his associate, to get out of his financial difficulties. In this context, if we scan the evidence of P. W. 1 and 2, it is fairly clear, that A. 1 was full to of gratitude to P. W. 2 and the latter used to render financial help to the former whenever required P. W. 2 has stated during investigation, that A. 1 fore and his wife approached him for a loan, and he promised to help them, though he has added, that it could be as and when funds were available with him. It would be impossible to arrive at a clinching conclusion, that A. 1 was not only in need of money, but had decided to act against P. W. 2, since loan was not forthcoming, though he owed him gratitude for his employment and service in the Electricity Board and also had been available to serve the family for over 25 years, inclusive of the fateful morning, when he had purchased fire wood and had taken waste paper to be sold in the shop of P. W. 11. The hostility of the waste paper shop owner, P. W. 11 is of no consequence, for P. W. 1 and P. W. 5 are certain, that in fact A. l took waste paper on the morning from the house of the former, to be sold. The sequence of events as to all that had happened on the unfortunate night, soon after P.W. 1 regained consciousness, get full corroboration from the evidence of P. Ws. 3 to 5. The prompt setting of the law in motion by preferring Ex. P. 1 before P. W. 30 Sub Inspector of Police, fits in with the sequence of events. We are unable to attach any importance to the evidence of P. W. 12 the dhobi that M. O. 48 towel seized from the venue of occurrence, belonged to A. 1. It is not the case of the prosecution that A. 1 had entered into the house on the occurrence night. We are unable to attach any importance to the evidence of P. W. 12 the dhobi that M. O. 48 towel seized from the venue of occurrence, belonged to A. 1. It is not the case of the prosecution that A. 1 had entered into the house on the occurrence night. So the towel M. O. 48 even if it belonged to A. 1, could not have been left at the scene, on the night of crime, to facilitate any connection with the crime proper. Though it is admitted that the dhobi mark of A. 1 was V. S and the dhobi mark assigned to P. W. 2 was 21, it looks odd, that M. O. 48 bore the dhobi mark of P. W. 2 and A. 1. Further the seizure mahazar Ex. P. 8 gives an entirely different mark to the towel seized. It mentions the dhobi mark in the towel as VS/41. To crown all these, P. W. 12 has stated in his evidence that M. O. 48 was the towel of P. W. 2 and not that of A. l. The seizure of the towel of P. W. 2 from his own house, cannot incriminate A. 1. The evidence of P. W. 12 is totally worthless. The evidence of P. Ws. 16 and 17, Assistant Engineers was sought to be relied upon by the prosecution, to show that after the commission of this crime, A. 1 had attempted to leave the scene village and had therefore, presented a leave letter Ex. P. 10 on the guise of his need to go to his native place urgently. The evidence of these two witnesses instead of helping the prosecution tends to support the case of the defence. Though P. W. 16 would have it that A. l wanted leave and attempted to give Ex. P. 10, a leave application to him, he asks A. 1 to meet P. W. 17, the Assistant Engineer in charge. Ex. P. 10 pleads for leave for 2 1/2 days to attend personal work urgently. P. W. 16 was unable to identify the handwriting in Ex. P. 10. Admittedly it was not handed over to him. No date has been mentioned in Ex. P. 10. P. W. 17 seeks to identify Ex. P. 10 as A. lts leave letter forwarded through his office. Leave was not granted. Meanwhile he received information on 20. 12. P. W. 16 was unable to identify the handwriting in Ex. P. 10. Admittedly it was not handed over to him. No date has been mentioned in Ex. P. 10. P. W. 17 seeks to identify Ex. P. 10 as A. lts leave letter forwarded through his office. Leave was not granted. Meanwhile he received information on 20. 12. 1983 of the arrest of A. 1, from which date, he placed the latter under temporary suspension. P. W. 17 had seen Ex. P. 10. for the first time on 23. 12. 1983. He was unaware as to who had scribed the said letter, which had been kept on his table. The attendance Register does not show that A. 1 had been marked absent from the after-noon of 19. 12. 1983. On the afternoon of 20th December, 1983, he was placed under temporary suspension, on the basis of the news, in the dailies. A reading of chief and cross-examinations of P. W. 17 will reveal, that suspension on the after-noon of 20. 12. 1983 of A. 1, had been based on Newspaper report of his arrest, in connection with this crime. We cannot over look that the definite case of the prosecution is that A. 1 was arrested around 2 P. M. on 20. 12. 1983. It would, therefore, be a matter of surprise that even on the afternoon of 20. 12. 1983, A. 1 had been suspended. It is quite possible, that A. 1 had been arrested probably earlier, as we have reasoned out. It is quite possible that he was not able to attend to his job and during the course of investigation on 23. 12. 1983, a letter had been placed for consideration for grant of leave to A. 1, by P. W. 17. The evidence of P. Ws. 16 and 17 probabilises the possibility of custody of A. 1, long prior to his claimed arrest at 2p. M. on 20. 12. 1983. .( 50 ) THERE is no need to discuss the evidence of P. W. 13, Dr. Athiaman, who examined and treated P. W. 1, for the injuries sustained by her, and the evidence of P.W. 22 who conducted autopsy on the dead body of Kaveriammal. There is no doubt whatsoever, that the deceased met with her death, when the offenders, whom-so-ever they might be, had committed her murder, to facilitate robbery. Athiaman, who examined and treated P. W. 1, for the injuries sustained by her, and the evidence of P.W. 22 who conducted autopsy on the dead body of Kaveriammal. There is no doubt whatsoever, that the deceased met with her death, when the offenders, whom-so-ever they might be, had committed her murder, to facilitate robbery. Similarly P. W. 1 had undoubtedly sustained injuries, when intruders entered into her house and one of such intruders robbed her of certain pieces of jewellery worn by her. The evidence of P. W. 1, one of the victims of robbery, has fully been corroborated by the medical evidence furnished by P. Ws. 13 and 22. Ex. P. 1 the complaint of P. W. 1 written by P. W. 4, also clearly details the manner in which the occurrence had taken place and the possibility of P. W. 1 having been in a position to identify a dark complexioned man of medium height, who had not only gagged her mouth but had also removed her jewellery, while causing hurt in the course of the said transaction. ( 51 ) BASING on the evidence of P. W. 10, that he had seen A. 3 and A. 4 frequenting the house of P. W. 2 and doing odd jobs for the said family, it was contended, that A. 4 must have been known very well to P. W. 1 and if that be so, non-mentioning of his name in Ex. P. 1 would put an end to the alleged involvement of A. 4 in this crime. We are unable to accede to this contention for, not only P. W. I but also P. W. 2 had denied of their having known A. 3 and A. 4, or both of them (A. 3 and A. 4) having performed any odd jobs for their family. P. W. 1, a house-wife had no reason whatever to falsely implicate a person, who had not entered into her house, and involved himself in the company of others, in committing robbery. It may be that PW. 1 was not able to identify others, who had accompanied A. 4 on that crucial night, since only one person had tackled her while others were ransacking the house and dealing with deceased Kaveriammal. It may be that PW. 1 was not able to identify others, who had accompanied A. 4 on that crucial night, since only one person had tackled her while others were ransacking the house and dealing with deceased Kaveriammal. The one person, whom P. W. 1 had seen, had been in her vicinity, for quite a length of time for the said person had initially closed her mouth with his hand and thereafter pushed a lime into her mouth. The said person also indulged in tying a cloth over her mouth to prevent her from shouting. It was the same person who was near her, who could be identified in the light shed by M. O. 5, the night lamp, who had removed her bangles, chain, nose screw, Karukamani malai and. the coral ring (M. Os. 10, 11, 14, 12, 8, 13 and 15 ). The acts indulged in by the offender, should have taken quite some length of time and P. W. 1 should have been in a position to identify the said person, who was in close proximity for some length of time and had also indulged in removing jewellery from various parts of her body. We are not prepared to accept the evidence of P. W. 10 that A. 3 and A. 4 used to frequent the house of P. Ws. 1 and 2 earlier. The evidence of P. Ws. 1 and 2 on that aspect is certainly acceptable and creditworthy. In spite of her shock and physical strain due to injuries sustained, P. W. 1 had specifically stated, the identifying features of the person, who relieved her of jewellery after gagging her mouth, in Ex. P. 1. , the First Information Report, preferred within 2 hours after the occurrence. P. W. 1 has also identified A. 4 as the intruder in her house, who had relieved her of her jewellery after causing hurt to her, in the identification parade conducted on 6. 1. 1984 by P. W. 31, the then Judicial II Class Magistrate No. 1, Madurai. The identification parade was held within a short period after the commission of the crime and we are not surprised that P. W. 1 was able to identify A. 4. 1. 1984 by P. W. 31, the then Judicial II Class Magistrate No. 1, Madurai. The identification parade was held within a short period after the commission of the crime and we are not surprised that P. W. 1 was able to identify A. 4. We are unable to agree that P. W. 1 could have had only a fleeting glance of A. 4, which would not be sufficient, to safely accept her evidence on identity. We have already held, that A. 4 and P. W. 1 were in close proximity for quite some time and hence the evidence of identity by the latter of the former, is totally credit-worthy. If it was the intention of P. W. 1 to implicate one or other of the accused in the crime, she could have easily identified in the parade, the brother-in-law and son-in-law of A. 1, which she did not do. The evidence of P. W. 1 rings true and is also so natural, exhibiting the untarnished truth. ( 52 ) LEARNED defence Counsel pointed out that certain pieces of jewellery, though stated to have been recovered, in the oral evidence, do not get sanctified by the contents of the corresponding mahazars. As an example M. O. 11 and M. O. 13 stated to have been seized from A. 3 (P. Ws. 26 and 34) do not have confirmation in the relevant mahazars. It was also pointed out, that there was some over-lapping of the items of jewellery spoken to by P. W. 1 and the contents of Ex. P. 2. , the complaint given by P. W. 2 on the next evening, after becoming aware of the looting of jewels kept in the iron safe and the trunk box. Taking note of several items of jewellery seized from various accused especially, when the seizure contained some broken jewellery as well, it will be very difficult to accurately identify each and every piece of jewellery either by the Investigating Officer or the mahazar witnesses. The identification by P. Ws 1 and 2 therefore becomes very relevant. It was then pointed out, that even P. W. 1 had not mentioned about M. O. 10 in her chief-examination, though stated to have been seized from A. 1, through Mahazar Ex. P. 26. M. O. 11 referred to by P. W. 1 in her chief examination does not form part of Ex. P. 26. It was then pointed out, that even P. W. 1 had not mentioned about M. O. 10 in her chief-examination, though stated to have been seized from A. 1, through Mahazar Ex. P. 26. M. O. 11 referred to by P. W. 1 in her chief examination does not form part of Ex. P. 26. In fact M. O. 11 was recovered from A. 3, vide the evidence of P. W. 26. We cannot overlook that M. Os. 10 and 11 series are bangles (wheat pattern) and hence if there is an error in the identification, as to which one of these bangles were exactly removed from the person of P. W. 1, on the fateful night, when P. W. 1 was deposing in Court two years after the occurrence, it cannot be held that the discrepancy is so vital to throw out the prosecution case in its entirety. Reasonable allowances have to be given to the power of retentivity of P. W. 1. We have no hesitation in holding, that in a pre-planned attempt to commit theft from the house of P. W. 2, in his absence all the jewellery, which have been produced as material objects in this prosecution, had been removed out of possession of P. Ws. 1, 2 and deceased. It of course looks a bit odd, that the investigating agency had not initially noticed, carefully, the ransacking of the trunk box and iron safe in the western room of the house of P. W. 2, even when they entered into the house, for the first time on the morning of 19. 12. 1983. P. W. 2 is certain, that when he went into this room on the evening of 112. 1983, he found the box and the iron safe open. The Dog squad had also been taken, and it appears that P. W. 34 who had visited the scene of occurrence and prepared an observation mahazar, had been negligent in not having noted, that both of them were found open. The suspicion of P. W. 34 must have been aroused as to the possibility of other property from the house of P. W. 2, other than those mentioned in Ex. P. 1, having been committed theft of. The suspicion of P. W. 34 must have been aroused as to the possibility of other property from the house of P. W. 2, other than those mentioned in Ex. P. 1, having been committed theft of. However, due to negligence of the police, we are not prepared to hold, that at a later point of time to somehow or other connect the accused, a second list of missing jewellery mentioned in Ex. P. 2, was furnished by P.W. 2, with an ulterior object. There was no animosity for P. W. 2 to introduce a second list, if in fact those jewellery were not found missing. There would be no need for him, to allow available jewellery with him, to be seized and produced in Court, for the purpose of this prosecution, especially when he had no animosity against A. 1. He had not even known the other accused closely, to have any motive to falsely implicate them in this crime. It is true, that some suspicious features do appear in the recovery mahazars. If we carefully scrutinise the recovery mahazars Ex. P. 26, P. 27, P. 29 and P. 30, based on the jewellery lost, listed in Ex. P. 2, it is fairly apparent, that the weight mentioned in Ex. P. 2 exactly tally with the weight mentioned in the seizure mahazars. If weight had not been mentioned in Ex. P. 2, the Mahazar also is silent about the weight. It is rather amazing that P. W. 34 was able to give the approximate weight of the jewellery seized, by holding them in his palm, to correctly tally with Ex. P. 2. He seems to be too accurate a balance, that even 1/4 sovereign, could be correctly deciphered by him while listing the weight of the various pieces of jewellery, in the seizure mahazar. It is quite possible, that the weight of the jewellery seized, had been mentioned in the seizure mahazar, on the basis of the weight of those jewellery mentioned in Ex. P. 2. This practice is not unusual. But the investigating agency must endeavour, to avoid unnecessary suspicion being cast on such petty matters, which could assume magnified proportions, in the background of several other circumstances, unfurled in evidence. We have already discredited the recovery. P. 2. This practice is not unusual. But the investigating agency must endeavour, to avoid unnecessary suspicion being cast on such petty matters, which could assume magnified proportions, in the background of several other circumstances, unfurled in evidence. We have already discredited the recovery. .( 53 ) ONE other circumstance which tends to support the defence contention, that the recoveries had been sought to be allotted to one or other of the accused, who were already in the custody of the Police, has to be seriously taken note of, since it cannot be brushed aside, as insignificant or immaterial. Ex. P. 2, list of missing jewellery furnished to the investigating agency by P. W. 2 on 19. 12. 1983 contains 31 items. Investigating Officer when cross-examined, has accepted the items 1 to 5 in Ex. P. 2 apart from M. Os. 17 and 19 were seized from A. 1. Items 6 and 7 in Ex. P. 2 and two other pieces of jewellery were seized from A. 2. Items 8 to 24 in Ex. P. 2 were recovered from A. 3 while items 25 to 31 and three other pieces of jewellery were recovered from A. 4. It would be too much of a strange coincidence, that in the serial ranking of the accused, the jewels in seriatim shown in Ex. P. 2, could be recovered in the same order. As we have already stated if theappellants were in the custody of the police, even prior to their arrest, the inescapable conclusion is, that all the persons suspected in this crime were allotted some pieces of jewellery, to connect them with the offence. Though strong suspicion may centre around A. 1 to A. 3, that they could have participated in the crime, on suspicion, we cannot find them guilty. If the finger print evidence, so shabbily placed before Court, had not intervened, probably on the basis of certain other circumstances available in evidence, the complicity of one or other of the accused could have been easily judged, and if presumption could be applied, they could have very well been convicted for robbery and murder. If the finger print evidence, so shabbily placed before Court, had not intervened, probably on the basis of certain other circumstances available in evidence, the complicity of one or other of the accused could have been easily judged, and if presumption could be applied, they could have very well been convicted for robbery and murder. When once scientific evidence, so suspicious and haphazard, tends to tilt the balance in favour of all the appellants except one, no useful purpose would be served, by indulging in vocabulary, in criticising the carelessness in investigation, which had paved the way for escape of certain offenders, whom-so-ever they might be. Criminals seem to escape from the clutches of law, due to serious infirmities, in the investigation. We are constrained to acquit A. 1 to A. 3 of all the charges framed against them. .( 54 ) AS far as A. 4 is concerned, since we have disbelieved arrest and recovery, he is also bound to be acquitted of charges 1, 3, 5 and 6. However, A. 4 cannot escape conviction under Section 457 Indian Penal Code (Charge No. 2) P. W. 1 has identified A. 4 as the intruder in her house, who had removed her jewellery, in which process she sustained injurios, affirmed by medical evidence furnished by P. W. 13. Section 457 Indian Penal Code in its Second part, provides for punishment even if the offence intended to be committed, was theft. That the intention of A. 4 and his associates whom-so-ever they might be, was to commit theft, is so clear and patent. If that be so, A. 4 would be liable under Section 457 Indian Penal Code. The conviction and sentence imposed under Charge No. 2, on A. 4, shall stand confirmed. Except to this limited extent so far it concerns, A. 4, this appeal is otherwise allowed. .( 55 ) ON return of property we have heard the Counsel for the appellants, Counsel for P. W. 2 and the learned Additional Public Prosecutor. We have no hesitation in confirming the order directing the return of M. Os. 1, 2, 5 to 7, 53 and 55 to P. W. 2, made by the trial Judge. .( 56 ) AS far as M. Os. 8 to 47 are concerned, during the pendency of this appeal, P. W. 2 preferred Criminal M. P. No. 3879 of 1987, seeking their return. 1, 2, 5 to 7, 53 and 55 to P. W. 2, made by the trial Judge. .( 56 ) AS far as M. Os. 8 to 47 are concerned, during the pendency of this appeal, P. W. 2 preferred Criminal M. P. No. 3879 of 1987, seeking their return. A Division Bench of this Court, on 29th June, 1987, passed the following order: This petition is filed by P. W. 2 in Sessions Case No. 155 of 1984 on the file of the Court of the Third Additional Sessions Judge, Madurai, praying for the return of the jewels M. Os. 8 to 47 on the ground that they all belong to his deceased mother only and that he is the only heir to the deceased. Mr. K. R. Thiagarajan, learned Counsel appearing for A. 1 to A. 3, states that the accused had not claimed the jewels as belonging to them in their statements under Section 313 Cr. P. C. Learned Counsel for A. 4 has no objection for the return of the jewels to the petitioner. Under these circumstances, we direct the Sessions Court to return M. Os. 8 to 47 to the petitioner viz. , H. D. Subramaniam, on his undertaking that he would keep all the jewels intact till the disposal of the appeal and that he would produce the same before the Court whenever required during the hearing of the appeal. We are satisfied that the same order will hold good even now though at that time, it was made on interim basis. M. Os. 8 to 47 to which P. W. 2 is entitled to, can be retained by him. The undertaking executed by P. W. 2 on the basis of the order in Crl. M. P. No. 3879 of 1989, shall Stand cancelled. Before this Court, C. W. 1 and C. W. 2 were Examined and Exs. D. 1 to D. 4 were marked. Appeal allowed.