Judgment :- Sreedharan, J. Sessions Court, Manjeri convicted accused 1 and 2 in S.C. 20 of 1993 for offences under Ss.302, 201 and 392 read with S.34 of the Penal Code. First accused was thereupon sentenced to death under S.302 of the Code and directed to be hanged under S.302 of the Code and directed to be hanged by the neck till he is dead. For the offences under S.2011.P.C., he was sentenced to undergo rigorous imprisonment for five years and under S.397 to suffer rigorous imprisonment for seven years. The death sentence passed against the first accused has been sent up for confirmation and hence R.T. 5/ 1993. First accused challenges the conviction and sentence in Criminal Appeal 889/ 1993. Learned Sessions Judge sentenced the second accused for imprisonment for life under S.302 of the Penal Code. He was again sentenced to undergo rigorous imprisonment for five years and seven years under Ss.201 and 397 respectively of the Penal Code. He questions the conviction and sentence in Appeal 891/1993. 2. Short facts which led to this case are as follows: - One Sivadasan, who was a goldsmith working in Kodangad market, was missing from the evening of 7-9-1991-. His relatives searched for him in all possible places. When the attempt to trace him failed, they lodged a complaint before the police on 9-9-1991. On the basis of that complaint, police registered Crime 308/1991 of Kondotty Police Station, as "man missing". The police also could not find out the whereabouts of Sivadasan. On 5-10-1991, his skeletal remains, soiled dress and watch were found in the paddy field of PW-2, in which harvesting was being done by his employees. The servants informed PW-2 of these articles seen in the paddy field. PW-2 then visited the paddy field and verified the truth of the information given to him. Thereupon he went to the police station and informed the police. On getting that information, police sent Ext. P6 report to Court stating that the skeletal remains are of the missing man Sivadasan and so the case is being investigated for offence under S.302 of the Code. Necessary steps were taken by the police to guard the scene. Next day morning, 6-10-1991, Circle Inspector of Police, PW-39, came to the scene, prepared inquest, scene mahazar, etc. P6 report to Court stating that the skeletal remains are of the missing man Sivadasan and so the case is being investigated for offence under S.302 of the Code. Necessary steps were taken by the police to guard the scene. Next day morning, 6-10-1991, Circle Inspector of Police, PW-39, came to the scene, prepared inquest, scene mahazar, etc. He got the services of PW- 36, Police Surgeon attached to District Hospital, Manjeri and arranged for site postmortem examination. Circle Inspector questioned witnesses on 7-10-1991, arrested first and second accused at 1.45 P.M. and 3.15 P.M. respectively on the same day and virtually completed the investigation by the night of 7-10-1991 itself. 3. The prosecution case is that every night Sivadasan was taking all valuables in his shop in a bag to his house for safety and it was being taken back in the succeeding morning when he goes to the shop. It is alleged that on 7-9-1991 there was substantial quantity of gold with him. Knowing that, the first accused, who was friendly with Siyadasan, conspired with second accused to do away with the life of Sivadasan. In implementation of the common intention of both accused, first accused enticed the deceased to Kaithakkal padom, a lonely place. While the deceased was walking in front, first accused made a cut from behind and also inflicted several other injuries, which caused the instantaneous death of Sivadasan. He snatched away the valuables kept in the bag by the deceased. Thereafter second accused, who was hovering around, joined the first accused; they together dragged or removed the dead body to a distance of about 350 feet north and hid it in the paddy field. Seeing the skeletal remains and clothes within the paddy field, it has come out that Sivadasan had been murdered and buried in that paddy field. 4. First accused was arrested at 1,45 P.M. on 7-10-1991 and second accused was arrested at 3.15 P.M. It is the prosecution case that on the basis of the information given by the first accused, gold ingot weighing about 40.200 gms., some silver ornaments, chopper, umbrella, torch and clothes worn by him on 7-9-1991 were recovered from his house. At the instance of the second accused, some broken parts of a gold chain were recovered on 7-10-1991 itself. At the instance of the second accused, some broken parts of a gold chain were recovered on 7-10-1991 itself. These recoveries are the main items of evidence relied on by the prosecution to connect the accused with the crime. 5. There is no eye witness for the incident alleged by the prosecution. The case is based solely on circumstantial evidence. In a case based on circumstantial evidence, all circumstances from which the conclusion of guilt is to be drawn should be fully and cogently established. The facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and should have a definite tendency unerringly pointing towards the guilt of the accused. The proved circumstances should be consistent only with the hypothesis of the guilt of the accused and those circumstances should be of a conclusive nature as to exclude all hypothesis of the innocence of the accused. In other words, the chain of evidence must lead to the conclusion that in all probability the act must have been done by the accused and the accused alone. According to Their Lordships of the Supreme Court, when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: - (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that mere is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence", (vide Padala Veera Reddy v. State of A.P., 1991 SCC (Cri.) 407). From the various circumstances relied on by the prosecution in the case, it has to be seen whether they cumulatively lead to the conclusion that the crime alleged to have been committed by the accused was in fact committed by them and by them alone. 6. From the various circumstances relied on by the prosecution in the case, it has to be seen whether they cumulatively lead to the conclusion that the crime alleged to have been committed by the accused was in fact committed by them and by them alone. 6. A Division Bench of this Court in Joy v. C.I. of Police, 1989(1) KLT 443, observed: - "Before convicting an accused on the basis of circumstantial evidence, it is necessary to ensure mat the chain of circumstantial evidence is complete and conclusive without even a missing link. The effect of all the links separately and of the chain cumulatively should lead only to the guilt and not in any way to the innocence. No circumstance should be capable of any explanation on any hypothesis other than the guilt" On the basis of the above observation, learned counsel representing the accused advanced an argument that each circumstance relied on by the prosecution must lead to the guilt of the accused. If among those circumstances some are consistent with the innocence of the accused, then it is contended that such circumstances cannot form the link in the chain of events leading to the guilt of the accused. Such innocent circumstances will result in breaking the chain. Consequently, the prosecution must fail. This approach, we are afraid, cannot be resorted to. 1991 SCC (Cri)) 407 referred to earlier is authority for the prosecution that the circumstances taken cumulatively need only lead to the conclusion that with all human probability the crime was committed by the accused and none else, to other words, circumstances in their totality should unerringly lead to the conclusion that the offence was committed by the accused and none else. 7. As observed by the Supreme Court in Kishore Chandv. State of H.P., A.I.R 1990 SC 2140, the Court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that facts leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the events which form the chain which should be consistent only with the hypothesis of the guilt of the accused. The circumstances cumulatively should be of a conclusive nature and they should exclude all hypothesis, but the one proposed to be proved by the prosecution. In the case on hand, we have to see whether the prosecution succeeded in discharging their burden. 8. Sivadasan was found missing from the night of 7-9-1991. When the search for finding him did not succeed, his relatives reported the matter to the police. Nearly a month thereafter, while harvesting was in progress in the paddy field of PW-2, his employees came across skeletal remains, soiled dress and a watch. Immediately this fact was reported to the police. PW-39, Circle Inspector of Police, recovered the shirt, MO-1, the double dhoti, MO-2 and the electronic watch, MO-3, from the paddy field. With the help of the doctor, PW-36, tuft of hair was also recovered from the scene. Pw.2, the owner of the paddy field where the above articles were seen, gave evidence before Court that MOs.1 to 3, skeletal remains and tuft of hair were recovered from the paddy field. This evidence of PW-2 is corroborated by PW.4,5 and 6, who were harvesting the crops in the paddy field. PW-1, brother of the deceased, PW.8, another relative of the deceased who was with Sivadasan in the evening of 7-9-1991, PW-13, another brother of the deceased and PW-15, the sister-in-law of the deceased, gave evidence before Court that MOs.1 to 3 were of the deceased. PWs.1,13 and 15 were staying with the deceased in the same house. We see no reason to disbelieve the evident given by these witnesses, when they stated before Court that MO-1 shirt and MO-2 dhoti recovered from the paddy field where the skeletal remains were found, were the dress worn by deceased on 7-9-1991 when he was found missing from the house. They also stated that MO-3 wrist watch, which was brought from foreign by the paternal uncle of the deceased, was also being used by him. The recovery of these articles from the paddy field shows that the skeletal remains found were could be that of deceased Sivadasan. They also stated that MO-3 wrist watch, which was brought from foreign by the paternal uncle of the deceased, was also being used by him. The recovery of these articles from the paddy field shows that the skeletal remains found were could be that of deceased Sivadasan. MO-29 is the tuft of hair recovered from the paddy field from near the place where the skull was found. The comb used by Sivadasan was recovered by the police under Ext. P7 mahazar. The hair seen in that comb was compared with the tuft of hair taken from the paddy field by PW.40, Assistant Director of Biology Division, Forensic Science Laboratory, Thiruvananthapuram. According to him, 281 hairs entangled on the comb were human scalp hairs which were similar to the sample scalp hair taken from the scene. This shows that the tuft of hair recovered from the scene was identical with those seen in the comb used by Sivadasan on all parameters. 9. PW-36, the Police Surgeon, collected 160 pieces of bones from the scene. Some of the bones and teeth were lost. The bones that were recovered, according to this doctor, were that of a human being, belonging to a single and same person. He preserved the skull and mandible for superimposition. PW-40, the Assistant Director of Forensic Science Laboratory, conducted superimposition with the help of Ext. P3 photograph of the deceased recovered by the police from his shop. According to him, the two pieces of mandible were assembled in the original position with adhesives. The skull and mandible were articulated in the original position with proper occlusion of the maxillary and mandibular teeth. He then fixed the skull with mandible in position with the exact found and lateral flexions and the rotation of the skull as measured from the photograph. The skull and mandible so fixed on the eraniophore was then photographed. That was enlarged into life-size and developed both on black and white paper and transparent diapositives. The life-size diapositives of the skull with the mandibles and the face were then superimposed -by him in transmitted light marking the important anthropometric land marks. They were found to superimpose perfectly. The skull and mandible so fixed on the eraniophore was then photographed. That was enlarged into life-size and developed both on black and white paper and transparent diapositives. The life-size diapositives of the skull with the mandibles and the face were then superimposed -by him in transmitted light marking the important anthropometric land marks. They were found to superimpose perfectly. Thereupon he came to the folio wing conclusions: - (1) The eyeballs were within the orbital cavities; (2) The eyebrows corresponded to the upper orbital margin; (3) The root of the nasal bone corresponded to nasim; (4) The nasal spine was just above the tip of nose; (5) The upper alveolar margin was just below the tip of nose. The gorious corresponded to the maxillary eminence; (6) Grathion corresponded to symphysisnient; (7) The outlines of the jaw and jaw bones were congruous, granting due allowance to soft tissue, thickness. The distance between the various anthropometric landmarks on the face and skull were accurately measured and ratios calculated. The ratios were found identical On the basis of these findings, this witness gave the opinion that the skull and the mandible could have belonged to the person whose photograph was made available by the police. The photograph made available to this witness was that of deceased Sivadasan. As held by Their Lordships of the Supreme Court in Ram Lochan v. State of West Bengal, A.I.R 1963 SC 1074, the skull would be admissible in evidence for establishing the identity of the deceased and similarly a photograph of that skull. When the outlines of the skull which is seen in the superimposed photograph show the nasion prominences, the width of the jaw bones, their shape, the general contours of the cheek bones, the position of the eye cavity on comparison show similarity with the contours etc. of the face of the deceased when the features of the bone on the face of the deceased are identical with that of the skull or atleast more similar, then that evidence would fall within S.9 of the Evidence Act and relevant. So, the evidence given by PW-40, the Assistant Director, Forensic Science Laboratory, has to be accepted as the superimposed photograph is not any trick photograph seeking to make something appear different from what it is in reality. So, the evidence given by PW-40, the Assistant Director, Forensic Science Laboratory, has to be accepted as the superimposed photograph is not any trick photograph seeking to make something appear different from what it is in reality. On going through the evidence of this witness, we are clear in our mind that there is no distortion of truth involved in his report. A superimposed photograph is really two photographs merged into one or rather one photograph seen beneath the other. Both photographs are of existing things. They are superimposed or brought into the same enlarged size for the purpose of comparison. The said comparison is technically perfect and we find no ground to doubt its correctness. The certificate given by PW-40 and his evidence prove beyond doubt that the skull recovered from the paddy field was that of Sivadasan. 10. From the above discussion, it is clear that prosecution has succeeded in proving that the skeletal remains that were recovered from the paddy field belonging to PW-2 were that of Sivadasan, who was found missing from 7-7-1991. Now the question that remains to be considered is whether the accused were responsible for the murder of Sivadasan. 11. As stated earlier, Sivadasan was found missing from the night of 7-9-1991. This fact was reported to the police on 9-9-1991. The police thereupon registered Crime 308/1991. PW-34, Head Constable attached to Kondotty Police Station, registered the crime. He conducted the investigation in that case. He questioned ten witnesses on 10-9-1991. The first witness questioned by him was the second accused in this case, since he happened to run the tailoring shop in the room adjacent to that held by deceased. He did not get any clue regarding the missing man. Thereafter PW-35 took over the investigation after verifying the investigation conducted by PW-34. That continued till 2-10-1991. According to this witness, during the course of his investigation none gave any information regarding any suspicious circumstance. This witness further stated that the investigation in the case was taken over by the Circle Inspector of Police an 2-10-1991. The Circle Inspector also did not succeed in getting any information regarding the disappearance of Sivadasan till PW-2 reported about the skeletal remains of the human being on. 5-10-1991. On 5-10-1991 and 6-10-1991, the Circle Inspector did not get any time to question any witness. So, actually he began questioning the witnesses only on 7th morning. The Circle Inspector also did not succeed in getting any information regarding the disappearance of Sivadasan till PW-2 reported about the skeletal remains of the human being on. 5-10-1991. On 5-10-1991 and 6-10-1991, the Circle Inspector did not get any time to question any witness. So, actually he began questioning the witnesses only on 7th morning. By noon on that day, he could fix accused as the persons responsible for the murder of Sivadasan. When examined before Court, he stated that he fixed up the first accused only on getting the statements of Kodakunnan Assainar (not examined in this case), Palliyali Velayudhan (PW-7), Naduveettil Ashokan (PW-14) and K.K. Mohammed (PW-18). So, it is worthwhile to examine whether the evidence of PWs.7,14 and 18 give any clue for fixing up first accused and whether had any part to play in the murder of Sivadasan. 12. PW-7 is an employee of P. W-14, who is a goldsmith having his jewellery shop. On 7-9-1991 PW.14, Ashokan, was laid up and was taking rest in his house. So, this witness had to go over to the house of PW-14 to report on that day's business. While he was on his way to the house of PW-14, he swears that he saw first accused in the company of Sivadasan at the place where the bye-lane branches from Kozhikode-Malappuram road. At that time, Sivadasan was having a bag in his armpit and another plastic bag. Sivadasan was seen engaged in conversation with first accused. When this witness asked the reason for Sivadasan to wait there, he said that there was nothing particular. It has come out in evidence that the bye-lane which branches from Kozhikode-Malappuram road is the one which leads to the house of Sivadasan and first accused. If Pw-7 saw first accused and the deceased, Sivadasan, at that place, there is nothing unusual or abnormal. It was on their way home. 13. PW-14, the employer of PW-7,is a relative of the deceased. It is common case that from 7-9-1991 Sivadasan was found missing after 9.30 P.M. Sivadasan's relatives were searching for him. They lodged a complaint before the police and police were also investigating. PW-7 had not told anyone that he had seen Sivadasan along with first accused at about9.30P.M. on 7-9-991. He did not divulge this fact to his employer, Pw-14, either. They lodged a complaint before the police and police were also investigating. PW-7 had not told anyone that he had seen Sivadasan along with first accused at about9.30P.M. on 7-9-991. He did not divulge this fact to his employer, Pw-14, either. In such a situation, when he stated to the Circle Inspector that he had seen the deceased along with the first accused at 9.30 P.M. at a place where the bye-lane branches from Kozhikode-Malappuram road, can it be considered as an incriminating circumstance to fix up first accused as the person responsible for the murder of Sivadasan? 14. PW.14, Naduveettil Ashokan, has not stated anything to connect the accused with the crime. He identified MOs. 13,14,16 and 17 as silver ornaments taken by Sivadasan from his shop. According to us, the evidence of PW-14 has not at all gone to implicate the accused in any manner whatsoever with the crime. The other witnesses on whom the Circle Inspector placed reliance for fixing first accused as an accused is K.K. Mohammed, PW-18. He is a goldsmith, who weighed MO-5 gold ingot, which is stated to have been recovered from the first accused on the basis of the information given by him. PW-18 comes into the picture only after the arrest of the first accused. So, we are left with the evidence of PW-7 only for fixing the first accused as the person or one of the persons involved in the murder of Sivadasan. That evidence, according to us, is too flimsy and no reliance can be placed on it. 14-A. PW-8 is a relative of deceased Sivadasan. According to him, whenever Sivadasan had more work, he used to entrust some with him for its execution. Sivadasan had asked him to make jimiky and ear studs, weighing 6 gms. The jimiky and studs so made by him were brought to the shop of Sivadasan in the evening of 7-9-1991. When those articles were entrusted with Sivadasan, first accused was in the shop. PW-8 was paid his labour charges. First accused, who was in the shop, was then asked to bring three cups of tea. Tea brought by him was taken by this witness, Sivadasan and first accused. Thereafter Sivadasan asked him to help in melting some gold ornaments in his possession. They were melted and a gold ingot was made. It was weighed and found to be of 40.200 gms. Tea brought by him was taken by this witness, Sivadasan and first accused. Thereafter Sivadasan asked him to help in melting some gold ornaments in his possession. They were melted and a gold ingot was made. It was weighed and found to be of 40.200 gms. First accused then took the gold ingot in his hand and felt its weight. After returning that ingot to sivadasan, according to this witness, first accused went out and entered in a conversation with the second accused, who was conducting a tailoring shop in the adjoining room. From this evidence of PW-8, the prosecution wants to make out a case that when the first accused came to know that Sivadasan was having a gold ingot weighing 40.200 gms., he hatched out a plan along with second accused to appropriate the same when Sivadasan returns home in the night by killing him. 15. PW-1, the brother of Sivadasan, stated before court that accused 1 and 2 were intimate friends of Sivadasan. Second accused was running a tailoring shop in the room adjoining to that of Sivadasan. First accused was a daily labourer, who used to spend time either in the shop of Sivadasan or second accused. Prosecution has no case that only on 7-9-1991 had Sivadasan in his possession gold weighing 40 and odd grams. Even if the entire evidence given by PW-8 that the first accused examined the ingot is accepted, it cannot in any way be taken as a circumstance tempting the first accused to hatch out a plan to murder Sivadasan for appropriating the gold ingot. 16. The evidence of PW-7 was relied on for the purpose of showing that deceased Sivadasan was seen last along with first accused prior to his disappearance. Even if that be the case, can the Court come to the conclusion that first accused should have been-responsible for the murder of Sivadasan? Since PW-7 had not divulged that fact cither to the relations of Sivadasan or to the police when search was being made for Sivadasan right from 8-9-1991, according to us, the evidence of PW-7 is not at all sufficient to show that Sivadasan was seen last in the company of the first accused. Since PW-7 had not divulged that fact cither to the relations of Sivadasan or to the police when search was being made for Sivadasan right from 8-9-1991, according to us, the evidence of PW-7 is not at all sufficient to show that Sivadasan was seen last in the company of the first accused. On account of the silence of this witness from 7-9-1991 till 7-10-1991, it is highly unsafe to rely on this witness to hold that Sivadasan was last seen alive in the company of the first accused. 17. Even if conceding for argument sake what was stated by PW-7 is correct, the evidence in the case shows that accused were the intimate friends of Sivadasan and that the place where Sivadasan was seen in the company of first accused was on the way to the house of the deceased. In such a situation the circumstance that deceased was last seen in the company of the accused cannot be taken as an incriminating circumstance against the first accused. Reference may be made to the decisions in Inderjit Singh v. State of Punjab, MR 1991 SC 1674, and Anant Bhujangrao Kulkarni v. State of Maharashtra, A.I.R 1993 SC 110. 18. Prosecution relies on the testimony of PWs. 9,10 and 11 to show that accused 1 and 2 were seen at the vicinity of the scene of occurrence immediately after the incident. It is the prosecution story that first accused enticed Sivadasan to a place near the paddy field of PW-2, murdered him and thereafter with the help of second accused buried him in the paddy field. For achieving this, it is alleged, accused 1 and 2 were somewhere around the scene of occurrence. PW-9 claims to have seen both accused at about 10.30 p.m. at the Mukkootta junction. Mukkootta junction is far away from the scene of occurrence. It is near the shop of deceased and second accused. If the murder had taken place at the place suggested by the prosecution, there was no possibility for accused 1 and 2 to be present at the place where PW-9 is stated to have seen them. On seeing accused there, PW-9 claims to have asked the second accused as to why he was there. Second accused did not reply. This witness without pursuing the matter, left the place. On seeing accused there, PW-9 claims to have asked the second accused as to why he was there. Second accused did not reply. This witness without pursuing the matter, left the place. PW-10 claims to have seen Al and A2 near the scene of occurrence at Thengintharachira. Even according to this witness, when he questioned the reason for their presence there, he was told that they came there for catching fish. Even according to this witness, it was usual for the people of the locality to catch fish from there. PW.11, the next witness on whom reliance was placed by prosecution to prove the presence of the accused in the vicinity was made to swear in re-examination that he saw them at about 11.00 P.M. According to him, he came there for diverting the flow of water in the canal. The evidence given by PWs.9,10 and 11, even if accepted, cannot in any way go to connect them with the murder of Sivadasan. They could not have been at Mukkootta junction where PW-9 saw them for away from the scene of occurrence at 10.30 P.M. and thereafter at about 11.00 P.M. close to the scene of occurrence. If they were responsible for the murder, why should they go to Mukkootta junction? Had they gone there after disposing of the dead body? If the body was not disposed of would they have" gone away? If the body was disposed of before going to Mukkootta Junction, they would not have come anywhere near the scene for PWs. 10 and 11 to see them. There appears to be artificiality in the evidence of these witnesses and we place no reliance on their testimony. 19. What remains is the alleged recovery of articles belonging to Sivadasan on the basis of the statements given by accused. Sivadasan was found missing from 7-9-1991. Valuables alleged to have been taken from Sivadasan are shown to have been recovered on the basis of the statements given by the accused after the lapse of one month of the disappearance of Sivadasan. This delay is fatal to the prosecution. If the recoveries put forth by the prosecution is relied on, it can lead only to the inference mat they are either receivers of stolen property or were persons who committed the theft. It cannot necessarily indicate that the theft and the murder took place at one and the same time. This delay is fatal to the prosecution. If the recoveries put forth by the prosecution is relied on, it can lead only to the inference mat they are either receivers of stolen property or were persons who committed the theft. It cannot necessarily indicate that the theft and the murder took place at one and the same time. Even for drawing a presumption under S.114 of the Evidence Act, the possession of the stolen article by the accused must be soon after the theft. In Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54, Their Lordships observed: - "In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the muder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof. This observation was reiterated in Sheo Nath v. State of U.P., A.I.R 1970 SC 535. In the instant case, much reliance was placed on the recovery of MO-5 gold ingot from the house of the first accused purporting to be on the basis of the statement given by him. On the basis of this alleged statement, a packet containing MOs. 5, 6, 7,10,11,13 to 17,19 and 20 was recovered under Ext. P5. The gold and silver ornaments were claimed to have been kept in a packet on the roof in between the palmura leaves. The knife, MO-20, was taken from inside the but where Al was staying. It was lying exposed and was being used by the members of the family of the first accused. MO-10, Umbrella, was also in the house of Al, not kept concealed from the view of others. The torch-light was kept rolled in the bed. The shirt and lungi were taken from the hanger. These articles, namely the shirt, lungi, umbrella, torch and knife can under no circumstance be taken as kept concealed. What remains is the recovery of gold and silver. The gold ingot taken from the house of Al was got weighed by PW-18. He found it to be weighing 40.200 gms. 20. The shirt and lungi were taken from the hanger. These articles, namely the shirt, lungi, umbrella, torch and knife can under no circumstance be taken as kept concealed. What remains is the recovery of gold and silver. The gold ingot taken from the house of Al was got weighed by PW-18. He found it to be weighing 40.200 gms. 20. PW-30 stated before Court that he entrusted an old chain and a ring with Sivadasan for making new ornaments. The total weight of the gold entrusted was less than five sovereigns. That means it weighed less than 40 gms. Sivadasan, according to his relations examined in this case, was having a diary showing his business transactions. He used to enter the details in that diary. The last entry in that diary, as noted by the Sessions Judge as well, is given as 39.800 gms. This 39.800 grms could be the weight of the gold ingot he had on that day. The weight of the gold ingot alleged to have been recovered from the house of Al weighs 40.200 gms. This ingot cannot be the one which Sivadasan had. Prosecution has no explanation as to how the weight of the ingot which Sivadasan had, namely 39.800 gms., became 40.200 gms. So, we are not inclined to accept the prosecution case that MO-5 ingot was the one which Sivadasan had with him. 21. In regard to the recoveries effected by the police of the articles from the house of first accused, two material facts are to be borne in mind. Firstly it is undisputed that the place from where the recovery was effected was not in the sole control of the first accused. The members of his family were free to deal with the torch, umbrella and the knife. The alleged concealment of the ornaments in a packet among the palmyra leaves used for thatching the building is highly suspicious. Secondly, the recovery was made after about a month from the date of the incident. 22. Prosecution also relies on the evidence of PW-20 and recovery of MOs. 22 and 23 for implicating the first accused with the crime. According to this witness, first accused sold MOs. 22 and 23 silver ornaments, weighing 28 gms., for a consideration of Rs.111/--. PW-20 is a goldsmith having jewellery shop. No witness has given evidence before court that MOs. 22 and 23 belonged to Sivadasan. 22 and 23 for implicating the first accused with the crime. According to this witness, first accused sold MOs. 22 and 23 silver ornaments, weighing 28 gms., for a consideration of Rs.111/--. PW-20 is a goldsmith having jewellery shop. No witness has given evidence before court that MOs. 22 and 23 belonged to Sivadasan. Further, PW-20 had stated that he has accounts showing the purchase of articles from strangers. MOs. 22 and 23, which were purchased by him two or three days prior to its recovery, should necessarily have been entered in the account. If they were purchased from first accused, the accounts should have been produced before Court. The non-production of the accounts will go a long way against the prosecution. Further, the recovery effected after a month from the date of the incident cannot connect the accused with the murder or theft even. 23. Learned Sessions Judge heavily relied on the stains of blood found on MO-20 chopper for finding Al guilty of the murder. As stated earlier, MO-20 was seen recovered from the house of the first accused more than a month after the incident. That weapon was not kept concealed in any place. It was in the kitchen of the but belonging to the first accused. The but was having only two rooms. The members of first accused' s family was freely moving around. The recovery of MO-20 knife after the lapse of one month from the date of the incident cannot, according to us, be a circumstance against the accused. When the first accused was questioned under S.313 of the Code of Procedure, he was not specifically asked as to how MO.-20 knife happened to have stains of human blood. So, the presence of human blood on the knife cannot be put against the first accused. 24. The second accused is sought to be implicated on account of the recovery of MOs.24 to 26 from PW.22. PW-22 is also a goldsmith, running Bismillah jewellery. From him, MOs. 24 to 26, together weighing 2.350 gms were recovered. According to him, four or five days prior to its recovery, second accused sold MOs. 24 to 26 for a sum of Rs. 382/-. PW-24 stated before Court that MO-24 was entrusted with deceased for making a ring. So also according to PW-23, Mos. 25 and 26 were entrusted with Sivadasan for making new ornaments. According to him, four or five days prior to its recovery, second accused sold MOs. 24 to 26 for a sum of Rs. 382/-. PW-24 stated before Court that MO-24 was entrusted with deceased for making a ring. So also according to PW-23, Mos. 25 and 26 were entrusted with Sivadasan for making new ornaments. The recovery of these articles, MOs. 24 to 26, from PW-22, the owner of a jewellery shop, is highly suspicious and it is not at all safe to rely on the evidence of this recovery and PWs.22 to 24 for connecting the second accused with the murder of Sivadasan. 25. In view of what has been stated above, we hold that the prosecution has miserably failed in establishing the guilt of the accused beyond reasonable doubts. At best they can claim that they succeeded in creating some suspicion. But, that suspicion cannot take the place of proof. The benefit of that doubt must necessarily go to the accused. They are, therefore, entitled to be acquitted. 26. Before parting with this case, we would like to say a few words on the death sentence imposed on the first accused. The learned Sessions Judge came to the conclusion: - "The first accused was exploiting the confidence and belief the deceased was having in him, and they were moving very closely and confidentially also. Exploiting and violating that trust, he led the deceased to a lonely place and inflicted the murderous cuts, and not satisfied with that he dragged the dead-body along with A2, and concealed it underneath the paddy growth. This commission reveals a very violent and gruesome motive for getting about Rs. 15,000/- as value of the gold etc.". We are at a loss to understand how these findings were arrived at. There is no. evidence worth the name to support the conclusion arrived at by the learned Judge. He came to this conclusion purely on the basis of surmises and conjuctures. But for the above conclusion, which has no legal basis for its support, the learned judge would not have committed the wrong in awarding death sentence to the first accused. The circumstances under which the death occurred and the part played by each of the accused in causing that death are not at all evident. But for the above conclusion, which has no legal basis for its support, the learned judge would not have committed the wrong in awarding death sentence to the first accused. The circumstances under which the death occurred and the part played by each of the accused in causing that death are not at all evident. So, on the facts and circumstances of this case, the learned Sessions Judge was not at all justified in awarding death sentence. 27. Learned Judge observed: - "By following the general principle laid down in the body of the judgment in Bachan Singh case, the imposition of death penalty can be permissible in all cases of intentional and cruel murder. This case is a cruel case intentional and diabolic murder. The formula of "rarest of rare cases" is not to be applied in the statistical sense, but only in the judicial sense.". We are afraid that these observations are not warranted in the light of the decisions of Supreme Court in Bachan Singh v. State of Punjab, A.I.R 1980 SC 898, and Machhi Singh v.State of Punjab, A.I.R 1983 SC 957. In the light of the decision in A.I.R 1983 SC 957, the court has to see whether there is something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence. The Court will also have to examine whether there is no alternative, but to impose death sentence even after according maximum weightage to mitigating circumstances. In the instant case, first accused is aged 30. He has a family consisting of his wife and two children. He is the sole bread-winner of the family. Prosecution has not shown that he inflicted the cut on Sivadasan which resulted in his death. In these circumstances, there was no justification whatsoever for awarding the death sentence to him. Appeals and Referred Trial are disposed of by setting aside the conviction and sentence passed against the accused. They are acquitted. They are set at liberty forthwith, if their continued detention is not required in any other case.