Judgment :- Rengasamy, J. This reference under Sec.366, Code of Criminal Procedure is made by the Additional District and Sessions Judge, Nagapattinam, and the appeal is preferred by the accused, from the conviction and the sentence of death imposed by the learned Additional District and Sessions Judge, in S.C. No.191 of 1995 on his file for the murder of one Ranganayaki Ammal. The Criminal Miscellaneous Petition No.3220 of 1996 has been filed to receive the newspaper ‘Malai Malar’ dated 30.9.1994 in evidence. 2. The occurrence had taken place on 29. 1994 between 1.30 and 2.30 p.m. in Sattaiappar Street, Nagapattinam Town. The prosecution case can be narrated in brief as follows: The deceased Ranganayaki Ammal was the wife of late N.R. Subramanian, an advocate of Nagapattinam, who also had died on 14. 1994. Their daughter P.W.2 is married in Mayiladuthurai and of their two sons, one is employed in Jamshedpur and the other son is an advocate at Madras. Their another daughter is also married at Madras. After the death of N.R. Subramanian, the deceased Ranganayaki Ammal was residing alone in Door No.23, Sattaiappar Street, Nagapattinam. P.W.11 was formerly working as a driver of the car owned by N.R. Subramanian and five years before the death of N.R. Subramanian, P.W. 11 joined as a driver in Cholhan Transport Corporation. Therefore, the appellant herein Kumaravel was working under N.R. Subramanian as his driver. After the death of N.R. Subramanian, though the deceased Ranganayaki Ammal retained the car bearing registration No. M.D.O.7648 for her use, she was not regularly using the car and only whenever she wanted to go out, she used to send for this appellant for driving the case. However, this appellant used to come to the house of the deceased for cleaning the car. As the appellant had no regular work in the house of the deceased, he was doing plumping work and electrical works wherever the works were available to him and whenever he was called upon by the deceased for attending small domestic work, he used to go and attend the work. However, he was not satisfied with the payments made by the deceased and he complained to P.W.6, another driver, that the deceased was stingy, that she was not paying his wages and he was finding it difficult to meet both ends. However, he was not satisfied with the payments made by the deceased and he complained to P.W.6, another driver, that the deceased was stingy, that she was not paying his wages and he was finding it difficult to meet both ends. The appellant complained to P.Ws.1 and 3 also in the same manner about the conduct of the deceased in not paying proper wages and that it would be helpful for him if she made a lumpsum payment so that he could invest money in some small industry to make his livelihood. P.Ws.1 and 3, who are brothers, are residing in door No.21, which is next adjacent to the house of the deceased Ranganayaki Ammal on the eastern side. RW.4 is another neighbour of the deceased in door No.25, on the western side. The odd numbers of the houses are situated in one row and the even numbers are situated in opposite row. P. W.5 is residing opposite to the house of the deceased, in door No.28. As Ranganayaki Ammal was living alone, the main door of her house would be always bolted inside and only when known persons knocked the door, she used to open it after seeing them through the window. On 29. 1994, P.W:5 met the deceased Ranganayaki Ammal by about 7.00 p.m. and she told him that as the motor in the well went out of order, she had sent word to the appellant through P.W.11. On 29. 1994, this appellant, who is residing with his brother P.W.11 in Kadampadi Main Road, went to the cycle shop of P.W.9 in Velipalayam and hired M.O.21 cycle for going to the house of the deceased. He reached the house of the deceased by about 9.30 a.m. and this was seen by P.W.5. After sometime, the appellant came out in the cycle with a plastic bag and went out. By about 1.30 p.m. he returned back and P.Ws.1, 4 and 5 saw the deceased talking with the appellant and the appellant entering into the house of the deceased. The deceased was wearing M.Os.5 and 6, gold bangles, M.O.7, a part of M.O.10 gold chain with beads, M.O.8, single row chain with amulet and M.O.9 double row chain. By about 2.30 p.m., P.W.1, with his brother, P.W.3, was sitting outside their house in the portico discussing family matters. The deceased was wearing M.Os.5 and 6, gold bangles, M.O.7, a part of M.O.10 gold chain with beads, M.O.8, single row chain with amulet and M.O.9 double row chain. By about 2.30 p.m., P.W.1, with his brother, P.W.3, was sitting outside their house in the portico discussing family matters. At that time, they heard the iron gate in the compound wall of deceased, being rashly closed creating a noise and when they saw towards that direction, they saw this appellant hastily leaving in his cycle towards east and in the front side of his white shirt M.O.2, there were blood stains. M.O.1 was the pant worn by the appellant at that time. P.W.4 also saw the accused coming out from the house and moving towards east. As Ranganayaki Ammal was alone in the house and as the appellant was moving out of the house in a suspicious manner, P.Ws.1 and 3 went to the house of the deceased and knocked at the door. There was no response from inside. Through the side lane, which proceeds to the backyard, they went to the backyard and entered into the house through a door on the back side, which was not closed, and they saw the deceased Ranganayaki Ammal lying near the well on the eastern side. They found blood stains on the floor. When they tested her breathing, they found Ranganayaki Ammal was already dead. Her backside was burnt by pouring kerosene. Except the nose screw and the ear rings, all the other jewels worn by her were found missing. Therefore, P.W. 1 immediately sent a message through phone to P.W.2 and also to her son at Madras. P.W.2 was able to reach the place only by 8.00 p.m. on account of the band on that day. In the meanwhile, this appellant went to the house of P.W.10, who is known to him, and told him that he had murdered Ranganayaki Ammal by beating her with iron rod on her head and also had stolen her jewels and to escape from the place, he was leaving to Coimbatore after receiving the money from his brother. When the appellant was proceeding to his brother’s house, he was seen by P.W.12 and one Jagannathan, when they were taking tea in a tea shop. When the appellant was proceeding to his brother’s house, he was seen by P.W.12 and one Jagannathan, when they were taking tea in a tea shop. As the appellant had blood stains in his shirt, they enquired him about the same and he told them also that he committed the murder of Ranganayaki Ammal. The appellant came to the house of his brother P.W.11, to whom he told that he had murdered Ranganayaki Ammal and relieved of her jewels. P.W.11 scolded the appellant that they were treating Ranganayaki Ammal as their own mother and he had committed a great sin by murdering her. By about 3.00 p.m. on that day, P.W. 1 went to Nagapattinam Town Police Station and gave the complaint Ex.P-1 to P.W.17 Inspector of Police, who registered the same in Crime No.1062 of 1994 under Secs.302 and 380, Indian Penal Code. Ex.P-20 is the First Information Report prepared by him and the same was sent to the Court and the other superior police officers. P.W. 17 immediately came to the scene of occurrence and prepared the observation mahazar Ex.P-2 in the presence of P.W.7 and another. He also drew a rough sketch Ex.P-22 for the house of the deceased. Ex.P-23 is the rough sketch for the street. Between 7.00 p.m. and 9.00 p.m. in the presence of the Panchayatars, he conducted the inquest. Ex.P-24 is the inquest report. He examined P.Ws.1 to 5 at that time. The body was handed over to P.W. 15 Constable for being taken to the hospital for postmortem a long with the requisition Ex.P-11. In the cement floor at the place of occurrence, there were blood stains and therefore, P.W.17 recovered the bloodstained cement plastering M.O.11 and the sample cement plastering M.O.12. He also recovered M.O.13, broken spectacle, M.O.4 burnt saree, M.O.14 bloodstained red towel, M.O.15 an electrical testor lying near by, M.O.16, the kerosene bottle, M.O.17 the bottle cap, M.O.18 series50 paise, 5 paise and 10 paise coins, M.O.19, chappal and M.O.10 broken chain sticking to the neck of the deceased with beads, in the presence of P.W.7 and others under Ex.P-3. P.W.15, the police constable, handed over the body of the deceased in Government Hospital on the same night to P.W.14, who sent the same to the mortuary. Ex.P-13 is the accident register. On 30.9.1994 at 10.30 a.m. P.W.13 the Medical Officer attached to the Government Hospital. P.W.15, the police constable, handed over the body of the deceased in Government Hospital on the same night to P.W.14, who sent the same to the mortuary. Ex.P-13 is the accident register. On 30.9.1994 at 10.30 a.m. P.W.13 the Medical Officer attached to the Government Hospital. Nagapattinam, commenced the post-mortem and found the following injuries on the body of the deceased: 1. A lacerated wound in 3 cm x 2 cm x bond depth in the right temporal parietal region on the scalp. Multiple homorragic spots present in the border of the wound. The wound is antero posterior in dissection about 5 cm. above the right pinna. 2. A lacerated wound running transversely in the back 5 cm x 2 cm x bone depth. Multiple haemorragic are present in the border of the wound: 3. A lacerated wound running vertically about 3 cm x 1 cm x bone depth - 3 cm. below the wound no.2. Multiple haemorragic were present in the border of the wound. 4. A lacerarted wound running obliquely 2 cm z 2 cm x bone depth - 3 cm behind the wound No.1. 5. Burn injury on the face, over the web, whole of the back, Buttocks, right shoulder, right upper limb, whole of the back, full thigh wherein the lower limbs below the knee joint skin depth. On dissection: Chamber normal, skin present, No line of redness. Venication fingers were defused. On dissection, the scalp in the area of injury No.(1). There was cut in the right muscle cut, haemorragic are seen. A fracture of 2 cm in shape running transversely in the right tempero bone. A star fracture starting from the fracture running transversely and posteriorly from the right parietal bone. Sub-dural haemotoma of 10 cm. occupying the right temporal, right sub. dural parietal and occipital bone in the brain present. Sub dural haemotoma in 6 cm x 6 cm in the left temporal and left parietal bone in the brain present. Hyoid bone intact. Liver partly along with the fracture of large bronchi. Stomach empty normal pale. No peculiar odour. Other organs were all normal in whole and pale in out section. The doctor was of the opinion that the deceased had died of shock due to the injury to the vital organs like the scalp, skull bone and brain. Ex.P-12 is the post-mortem certificate issued by her. Stomach empty normal pale. No peculiar odour. Other organs were all normal in whole and pale in out section. The doctor was of the opinion that the deceased had died of shock due to the injury to the vital organs like the scalp, skull bone and brain. Ex.P-12 is the post-mortem certificate issued by her. After the postmortem, P.W.15 , recovered bloodstained saree M.O.3, petticoat M.O.23, and blouse M.O.24, under Ex.P-14, Form No.95, and handed over these articles in the police station and the body to the relatives. On 30.9.1994, when P.W.17 was in the scene of occurrence with P.W.8, he received a message that the appellant was available in Nagore. Therefore, he proceeded to Nagore with him men along with the witnesses P.W.8 and another. At 11.10a.m. on 30.9.1994, he arrested the appellant in the main road near Arabsaw Darga. When questioned, the appellant handed over M.O.5 series pair of gold bangles, which were recovered under Ex.P-6 mahazar in the presence of the witnesses. The appellant gave a confession, the admissible portion of which is Ex.P-4. The appellant took them to his house and in the backside of his house, under a mango tree, he took out M.O.20 newspaper, which was buried under the earth and when the newspaper was unfolded, it contained M.O.6, a pair of bangles, M.O.7, part of the broken chain, M.O.8, a gold single row chain, M.O.9, gold two rows chain. They were seized under mahazar Ex.P-6 in the presence of P.W.9 and another. The accused showed the cycle M.O.21 which also was seized under Ex.P-7 mahazar. His blood stained shirt M.O.2 and Pant M.O.1, which were kept in the house were also seized under Ex.P-8. The accused took the police party and the witnesses to the house of the deceased, that is to the scene of occurrence, and pointed out the well. The Inspector asked one Xavier to get into the well and he took out M.O.22. iron rod from the well. The iron rod was seized under Ex.P-9. In the presence of the witnesses. Thereafter, P.W.17 recovered the register for the cycle M.O.25, maintained by P.W.9, for giving the cycle M.O.21 for hire to the appellant. On 10. 1994, he sent a requisition Ex.P-15 to the Judicial Magistrate, Nagapattinam, to send the articles for forsenic examination. The Judicial Magistrate forwarded them under his covering letter Ex.P-16. In the presence of the witnesses. Thereafter, P.W.17 recovered the register for the cycle M.O.25, maintained by P.W.9, for giving the cycle M.O.21 for hire to the appellant. On 10. 1994, he sent a requisition Ex.P-15 to the Judicial Magistrate, Nagapattinam, to send the articles for forsenic examination. The Judicial Magistrate forwarded them under his covering letter Ex.P-16. to the Forensic Laboratory, which after chemical analysis, sent the reports Exs.P-17 and P-18 and the serologist’s report is Ex.P-19. The Inspector of Police, after completing the investigation, filed the charge sheet against the appellant on 111. 1994. 3. After the committal of the case of the Court of Sessions, the learned Additional District and Sessions Judge, Nagapattinam, framed charges against this appellant for the offences under Secs. 302 and 392 read with Sec.397, Indian Penal Code. When the appellant was questioned for the charges, he pleaded guilty and therefore, the learned Additional District and Sessions Judge, examined the witnesses produced by the prosecution. Of the 17 witnesses examined, P.Ws.10 to 12 did not support the prosecution and turned hostile. After the trial was over, the appellant was questioned under Sec.313, Code of Criminal Procedure with regard to the incriminating circumstances found against him in the evidence and the appellant denied his complicity in the crime. He admitted that he made complaints to P.W.1. about the nonpayment of wages by the deceased and said that he was arrested even on 23rd itself by 5.00 p.m. He did not examine any witnesses on his side. The learned Additional District and Sessions Judge, after taking into consideration of the evidence placed before him, has found that the appellant is guilty of the offences under Secs.302 and 397, Indian Penal Code and has sentenced him to death for the offence of murder and rigorous imprisonment for 10 years for the offence under Sec.397, Indian Penal Code. Therefore, the learned Additional District and Sessions Judge, Nagapattinam has referred the sentence for confirmation by this Court and the appellant has filed the appeal separately challenging the conviction. 4. The learned counsel Mr.T.Arulraj, appearing for the appellant, contended that this is a case on purely circumstantial evidence and the evidence on the prosecution side is full of inconsistency and improbabilities and the arrest and the recovery of the articles, as alleged by the prosecution, is highly improbable and therefore the conviction of the appellant is bad. 4. The learned counsel Mr.T.Arulraj, appearing for the appellant, contended that this is a case on purely circumstantial evidence and the evidence on the prosecution side is full of inconsistency and improbabilities and the arrest and the recovery of the articles, as alleged by the prosecution, is highly improbable and therefore the conviction of the appellant is bad. The learned counsel for the appellant has filed Crl.M.P.No. 3220 of 1996 to receive in evidence the newspaper “Malai Malar” dated 30.9.1994, which refers to the concurrence and also the arrest of the appellant within three hours after the occurrence. According to the learned counsel, as this news item refers to the arrest of the appellant even on 29. 1994, it is an important detail available now, which completely falsifies the arrest, confession and recovery of the articles, as alleged by the prosecution and this newspaper, has to be received in evidence. The learned counsel contended that it is the evidence of P.Ws.17 and 8 that the appellant was arrested on 30.9.1994 at 11.10 a.m. near Arabsaw Darga, that on the information furnished by the appellant on 30.9.1994 the jewels were seized from the person of the appellant and also from the backyard of the house of the appellant where the jewels were buried in the earth, but the newspaper Malai Malar dated 30.9.1994, which is an evening publication, reveals that the appellant was arrested even on 29. 1994 and this newspaper completely blasts the important link alleged to be with the appellant, viz., the recovery of jewels from him on 30.9.1994, and in the interest of justice, this newspaper has to be received in evidence though the same was failed to be marked even when the witnesses were in the box before the trial Court or at the time of the statement of the appellant under Sec.313, Code of Criminal Procedure. The learned counsel relies upon a decision of the Calcutta High Court in Chakravarthi v. Public Prosecutor, 1981 C.W.N. 125 which relates to a proceeding under Sec.198-B of the Code of Criminal Procedure for the defamation of the complainant. Certain defamatory statements were made by the accused therein, who had published it in the newspaper and therefore, the newspaper containing the defamatory statement was sought to be marked in that case. Certain defamatory statements were made by the accused therein, who had published it in the newspaper and therefore, the newspaper containing the defamatory statement was sought to be marked in that case. As the basis of the complaint was only the publication of the defamatory statement in the newspaper, in that case it was held that the newspaper could be received in evidence. The learned counsel for the appellant further contended that under Sec.81 of the Indian Evidence Act, a presumption can be drawn as to the genuineness of the gazettes, newspapers private Acts of Parliament and under Sec. 391, Code of Criminal Procedure, the appellate court has right to take further evidence in case where such evidence is required and in this case, as mentioned above, the news column in the newspaper is very important and therefore, the newspaper has to be received as an additional evidence. So far as Sec.81 of the Evidence Act is concerned, it relates to only the genuineness of the newspaper. It does not refer to the contents therein. As the paper was published only on the evening of 30.9.1994 before which time the appellant was already arrested, the time of the arrest of the appellant, as published in the newspaper, must be only a hear-say. In Laxmi Raj Shetty v. State of Tamil Nadu, A.I.R. 1988 S.C. 1274: J.T. (1988)2 S.C. 180, the Apex Court has held that the court cannot take judicial notice of the case stated in the news item, being in the nature of hearsay secondary evidence, unless proved by evidence aliunde, and the newspaper is not one of the documents referred to in Sec.78(2) of the Indian Evidence Act by which an allegation of fact can be proved. Their Lordships also have referred to Sec.81 of the Evidence Act as to the newspaper report and they would hold that the newspaper report cannot be treated as proved of the facts reported and therefore, it is inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. Their Lordships also have referred to Sec.81 of the Evidence Act as to the newspaper report and they would hold that the newspaper report cannot be treated as proved of the facts reported and therefore, it is inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The learned counsel Mr.Arulraj submitted that the observation of the Apex Court is to the effect that even though the news item in the newspaper is hearsay evidence, the maker of the statement can prove the same by appearing in the Court and therefore, if the newspaper is received in evidence, an opportunity might be given to examine the reporter of this news and therefore, for this purpose, the application for additional evidence might be allowed directing to produce the witness to prove the contents of the news item. The name of the reporter who arranged for the publication of this news, is not even mentioned in the petition. Further, there is nothing to show that the reporter himself was able to see the arrest of the appellant on 29. 1994 itself. Unless the reporter had seen the arrest of the appellant and the custody of this appellant with the police even on 29. 1994, his statement for the arrest also would be only hearsay. But there is no averment in the petition that the reporter had actually witnessed the arrest or saw the appellant in the custody of the police even on 29. 1994 itself. Therefore, without such assurance, no purpose would be served even if opportunity is given to produce the witness, viz., the reporter is only to receive the newspaper dated 30.9.1994. As the news item therein is only hearsay, the same cannot be received in evidence. Therefore, this application for reception of the newspaper deserves to be dismissed and accordingly, it is dismissed. 5. Even assuming that the appellant was arrested on 29. 1994 around 5.00 p.m. the police had right for the custody of the appellant for 24 hours and any information furnished by the accused in the custody of the police leading to the discovery of certain facts connected with the crime is admissible under Sec.27 of the Indian Evidence Act. 5. Even assuming that the appellant was arrested on 29. 1994 around 5.00 p.m. the police had right for the custody of the appellant for 24 hours and any information furnished by the accused in the custody of the police leading to the discovery of certain facts connected with the crime is admissible under Sec.27 of the Indian Evidence Act. It is the case of the prosecution that the appellant, on interrogation, revealed that the jewels were buried in the backyard of his house and he also took the police party by 1.15 p.m. on that day to his house and from the backyard, he took out M.O.20, which is the newspaper buried in the earth, and when M.O.20. was unfolded, it contained M.O.6. gold bangles, M.O.7. part of M.O.10 gold chain, M.0.8, a single row chain and M.O.9. a double row chain. They were recovered under Ex.P-6 mahazar. It is also the prosecution case that by about 11.10 a.m. on that day, the accused himself produced M.O.5. gold bangles from his pocket to the Inspector and the same was seized under Ex.P-6 mahazar. Therefore, the evidence of the prosecution witnesses also is to the effect that when the appellant interrogated, he took out the articles concealed by him. It is not necessary that the information furnished by the appellant while in police custody need be voluntary and Sec.27 of the Evidence Act refers only to the information furnished by the accused in police custody. This Court in In re. Chinna Pappiah, (1940)2 M.L.J. 35 : A.I.R. 1940 Mad. 136 and also in In re. Chinnsami, 1960 Crl.L.J. 1344 has held that where after several hours of questioning by the police, the accused had given information about certain facts, leading to recovery of the weapon, whether such statement was voluntary or not, it is immaterial and even if the accused had made such statement under police influence, the recovery under Sec.27 of the Indian Evidence Act at his instance is valid in law. Therefore, even for argument sake, if it is accepted that the appellant was arrested even on 29. 1994, the evidence of police officer that the appellant, after interrogation, pointed out the place where the articles were concealed, is well within the admissible realm of the Indian Evidence Act. Therefore, even for argument sake, if it is accepted that the appellant was arrested even on 29. 1994, the evidence of police officer that the appellant, after interrogation, pointed out the place where the articles were concealed, is well within the admissible realm of the Indian Evidence Act. Even if the accused was in illegal custody, the same will be the rule of law as Sec.27 of the Evidence Act refers only to the information from an accused person in custody. The accused may have remedy for the illegal custody but the information furnished by him will not be illegal. But the learned counsel Mr.Arulraj would contend that if the appellant was arrested even on 29. 1994, the evidence of the police officer P.W.17. and P.W.8. that the appellant was arrested near the R.D.O. Office building on 30.9.1994 and that the appellant made a voluntary statement, will become completely false and therefore, the alleged recovery also cannot be believed. It is pertinent to mention that even in the complaint Ex.P-1, P.W.1 has specifically mentioned that the deceased was wearing gold bangles, a two row gold chain, another gold chain with amulet and one more chain with beads and that a portion of this part of the chain was found with the dead body and the rest were missing. So, all these items mentioned in the complaint have been recovered and marked as M.Os.5 to 10. M.O.10 is the part of the broken gold chain with beads and M.O.7 is that other part. P.W.8 would say that the Inspector of Police recovered.all these jewels barring M.O.5, concealed in the backyard of the house of the appellant buried in the earth and the place was pointed out by the appellant himself. M.O.5 bangle was seized from the appellant at the time when he was arrested. It was argued by the learned counsel for the appellant that P.W.8 would say that the bangles M.O.5 series were recovered from the shirt pocket of the appellant whereas P.W. 17 would say, the same was taken out from the pant pocket of the appellant and as there is inconsistency as to the pocket as between the evidence of P.W.8 and D.W. 17, the recovery is highly improbable. P.W.8 gave evidence on 16. 1996, nearly one and three fourth years after the occurrence. P.W.8 gave evidence on 16. 1996, nearly one and three fourth years after the occurrence. Therefore, probably, due to the poor memory, the might have stated that the gold bangles M.O.5 series were taken out by the appellant from his shirt pocket though actually it was from his pant pocket. We feel that this discrepancy is very minor arising form the loss of memory of the witness, and this will not in any way disprove the recovery spoken by P.W.18. Therefore, when specific description has been made in the complaint itself as to the jewels that were found missing and the very same jewels were recovered, and P.W.2, the daughter of the deceased also would say that he identified the jewels on the next day itself in the police station, there is no reason to disbelieve the evidence of P.Ws.8 and 17 for the recovery of the jewels at the instance of the appellant. Hence the recovery of the stolen goods from the appellant, is well established in this case. 6. It is the prosecution case that the deceased was living alone in her house after the death of her husband, which took place about six months prior to her death, and on the date of the occurrence, the appellant was asked to come to her house to appellant, who came in the morning by about 9.30 a.m., went out after some time and thereafter returned to the house by 1.30 p.m. and by about 2.30 p.m., he came out of the house hurriedly and agitatedly moving in his cycle M.O.21 towards the eastern side. It is also the prosecution case that the appellant, who was wearing M.O.2 shirt had bloodstains in the front side of his shirt. P.W. 1 would say in his evidence that by about 2.30 p.m. when he and his brother P.W.3 were talking to each other sitting in their portico adjacent to the house of the deceased, they heard the gate being slammed loudly and when they turned to that direction, they saw the appellant coming out with a cycle M.O.21 with bloodstains on the front side of his shirt, that he also looked agitated and as the appellant was moving hurriedly, they got suspicion as the deceased was alone in the house, and therefore, went to the house of the deceased, where she was found murdered in the backyard close to the well. With reference to this aspect, P.Ws.1, 3 and 4 have spoken about the appellant leaving the house by about 2.30 p.m. P.Ws.1 and 3 have stated about the bloodstains they saw on the front side of the shirt and P.W.1 has stated the agitated mood of the appellant, but P.W.4, has said that the appellant was moving out of the house in the normal manner and the learned counsel Mr.Arulraj contended that there is inconsistency as between the testimony of P.Ws.1 and 3 on one side and P.W.4 on the other side because P.W.4 has not mentioned about the presence of the bloodstains in the shirt of the appellant and this inconsistency is fatal to the prosecution. He further contended that P.W.4 would say in his evidence that the appellant was coming out of the house of the deceased and moved off in his cycle, which according to the learned counsel, would indicate that the appellant should have come out of the house through the main door from inside the house, whereas P.Ws.l and 3 in their evidence would say that when they went to the house, they knocked the front door, which was kept bolted from inside and as there was no response for their knocking the door, they entered through the lane on the eastern side leading to the backyard. According to the learned counsel Mr.Arulraj when the appellant had come out of the house through the main door, there was no chance for bolting of the main door from inside when the appellant had left the house and therefore, there is doubt as to the testimony of these witnesses. Absolutely, there is no inconsistency in these aspects. On a reference to the complaint Ex.P-23, we are able to see that the witnesses P.Ws.1 and 2 are residing in door No.21, which is immediately on the east of her house whereas P.W.4 is the western neighbour of the deceased. According to the evidence of the witnesses, the appellant, who came out. went towards the east in his cycle. Therefore, as the appellant was proceeding towards east, the moment he came out of the house, his case must have been towards east and his back towards west. According to the evidence of the witnesses, the appellant, who came out. went towards the east in his cycle. Therefore, as the appellant was proceeding towards east, the moment he came out of the house, his case must have been towards east and his back towards west. As P.W.4 is residing on the western side, he was unable to see the front side of the shirt and the face of the appellant closely, which opportunity was available only to P.Ws.l and 3, the eastern neighbours, and the appellant had passed over them when they were sitting in the portico. Therefore, P.Ws. 1 and 3 were able to see the bloodstains in the shirt in front side and P.W.1 was able to see the agitated mood of the appellant, which was not possible for P.W.4 and therefore, he would say, the appellant was moving out in the normal manner. Therefore, it cannot be stated that there is inconsistency on this aspect. Secondly, with regard to the belting of the main door from inside, it is the evidence of P.Ws.l and 3 that as the deceased was living alone in the house, her main door would always be kept closed bolted inside, and whenever anybody knocked the door, she used to identify them through the window and thereafter, would allow access into the house. The evidence of P.Ws.1 and 3 reveals that there is a small lane in between their house at door No.21 and the house of the deceased at door No.23 and one entering into the compound of the deceased through the iron gate outside, can go to the backyard of the house through this lane. The plan Ex.P-22 clearly shows that one can reach the backyard through the lane, on the eastern side even if the front door of the building is kept bolted. As the deceased was murdered in the backyard close to the well, the assailant should have come out of the house through the passage room in the backyard and had access to come out through the lane. Therefore, the main door was kept bolted as usual and the assailant had made his escape through the side passage. So, naturally, when P.Ws.l and 3 came and knocked the door when the appellant had left the house, they found the main door bolted inside. Therefore, the main door was kept bolted as usual and the assailant had made his escape through the side passage. So, naturally, when P.Ws.l and 3 came and knocked the door when the appellant had left the house, they found the main door bolted inside. They also entered into the house only though the side lane on the eastern side. Therefore, absolutely, we find no inconsistency in the testimony of these witnesses referred to above. 7. The learned counsel Mr.Arulraj submitted that the witnesses P.Ws.1 and 3 have mentioned that M.O.10, which is a broken part of chain with heads, was found in the neck of the deceased and the other part was missing, that if this appellant had murdered the deceased for the purpose of jewels, he would not have left part of the chain M.O.10 in the body itself and this circumstance is highly improbable in the prosecution case, namely, murder for gain. He further submitted that in column No.9 in Ex.P-24, the inquest report prepared at 7.00 p.m. on 29. 1994, it is mentioned that the assailant, taking advantage of the loneliness of the deceased, had attacked her on her head with aruval, and the inquest report mentions that the police officer and the panchayatars were of the opinion that the deceased was attacked with aruval as she had injuries on her head but the very same police inspector, when he sent the requisition Ex.P-11 to the doctor for post-mortem, after the inquest, he has mentioned in Ex.P-11 that the deceased must have been struck with a hard iron material or wooden reaper on the head causing bleeding injury and the post-mortem might be conducted on the body. It was argued that, it was not explained by the Inspector as to how he came to realise that the deceased was struck with iron rod or wooden reaper and according to the learned counsel, the Inspector of Police P.W.17 should have known about the iron rod within the well and therefore in Ex.P-11, the hard iron material is referred to though originally, the aruval was considered to be the weapon used, as mentioned in the inquest report Ex.P-24. On that basis, it is argued by the learned counsel that since even before the alleged recovery of the iron rod M.O.22 from the well on 30.9.1994, the iron rod is mentioned in the requisition Ex.P-24, it makes clear that the iron rod M.O.22 must have been known to the Police even on 29. 1994 itself and therefore, the recovery of M.O.22 under Ex.P-9 is false and the evidence of the witness P.W.8 for the recovery of M.O.22 also has to be disbelieved. With regard to the first part of the argument, viz., leaving M.O.10 part of the chain, the evidence of the witnesses would reveal that the assailant should have committed the robbery in a hurry for the reason that it was day time and there were neighbours on either side of the house, who might take notice of the offence by chance. Therefore, when the assailant was in a hurry, he pulled out the gold chain with beads and M.O.7 part alone came to his hand and the rest of the part stuck to the body as the deceased was lying down at that time. The assailant in the sense of terror, either might have failed to notice the broken piece M.O.10 sticking to the body or might have left the other part as it would require some time for the removal of the other part which was sticking to the body concealed in the clothes. Therefore, as the assailant was in a hurry to leave the house quickly he might have left M.O.10 broken piece either unnoticed or wantonly for want of time. This situation will not create any improbability in the prosecution case as to the murder for gain. With regard to the weapon of offence mentioned in Ex.P-24 and P.11, probably for the reason of a cut injury found on the head, the panchayatars might have been of the view that the deceased was attacked with aruval and therefore, in the inquest report, the panchayatars’ view, viz., the aruval as to the weapon, was mentioned. The Inspector of Police P.W.17 sent the requisition Ex.P-11 at his own discretion and he has not given the specific mention as to the weapon of offence in Ex.P-11 requisition. The Inspector of Police P.W.17 sent the requisition Ex.P-11 at his own discretion and he has not given the specific mention as to the weapon of offence in Ex.P-11 requisition. As the injury on the head of the deceased was a laceration, probably the Inspector of Police might have felt that some blunt edged weapon should have been used against the deceased. Therefore, without knowing the actual weapon used, he suspected that either a wooden reaper or a hard iron material might have been used for attacking the deceased. This will not lead to an inference that the availability of M.O.22 iron road in the well should have been known to the Inspector of Police. Therefore, for the reason that in Ex.P-11, the description of the weapon is mentioned as hard iron material or wooden reaper, the recovery of M.O.22 iron rod cannot be invalidated. 8. The learned counsel further submitted that even though it is mentioned that one Xavier dived into the well to take out M.O.22, he was not examined by the prosecution and. therefore, the recovery of M.O.22 at the instance of the appellant cannot be true. Even though the person mentioned Xavier, who according to P.W.17, was engaged to dive into the well for the purpose of tracing out the weapon used for the offence, was not examined, P.Ws.8 and 17 have spoken about the pointing out of the well by the appellant and the recovery of M.O.22 from the well under the mahazar Ex.P-9 on 30.9.1994 after the arrest of the appellant. The evidence of P.W.8 appears to be natural and there is no reason to disbelieve his evidence for the description of the weapon as wooden reaper or iron material in Ex.P-11. If M.O.22 was known to the Inspector of Police even on 29. 1996 itself, he would hot have mentioned about the wooden reaper also in Ex.P-11. Therefore, this contention of the learned counsel for the appellant also fails. 9. Another circumstance relied upon by the learned counsel Mr.Arulraj to improbabilise the case of the prosecution is the emptiness of the stomach of the deceased as seen from the post-mortem certificate Ex.P-12. 1996 itself, he would hot have mentioned about the wooden reaper also in Ex.P-11. Therefore, this contention of the learned counsel for the appellant also fails. 9. Another circumstance relied upon by the learned counsel Mr.Arulraj to improbabilise the case of the prosecution is the emptiness of the stomach of the deceased as seen from the post-mortem certificate Ex.P-12. According to the learned counsel, as the occurrence was said to have taken place by 2.30 p.m. soon after the lunch time, the stomach of the deceased should have contained some digested food particles but as the stomach was empty, she must have been murdered before 1.00 p.m. that is before taking the lunch and this circumstance falsified the testimony of the witnesses P.Ws.l, 3 and 4 that the appellant running out of the house by 2.30 p.m. There is no evidence as to when the deceased took her food before her death. In the family of the advocates, mostly they take one square meal in the morning itself around 9.00 or 10.00 a.m. before the advocate leaves for the court. As the deceased was the wife of an advocate, as per usual practice, she might have finished her lunch between 9.00 and 10.00 a.m. After this full meal, usually they do not take anything during the lunch time between 1.00 p.m. and 03.00 p.m. and only in the evening, they take coffee or some light tiffin. Therefore, nothing can be said for the emptiness of the stomach at 2.30 p.m. at the time of the occurrence and the argument that she ought to have been murdered before 1.00 p.m. is without any basis. 10. The next contention of the learned counsel Mr.Arulraj is that in Ex.P-16 namely the covering letter of the Judicial Magistrate addressed to the Forensic Laboratory, M.O.2 shirt is mentioned to be the white shirt with green and blue stripes, that when such stripes were in the shirt, P.Ws.1 and 3 could not have seen the bloodstains in the shirt when the appellant was moving in his cycle as the bloodstains will not be so conspicuous in such a background and therefore, the evidence of P.Ws.1 and 3 that they saw the bloodstains in the shirt of the appellant cannot be true. This contention has no merit at all. This contention has no merit at all. When the shirt was admittedly white in colour, naturally any stain, especially red colour would have been so conspicuous and visible even if there were stripes in the shirt. Further P.Ws.l and 3 were sitting in the portico of the house, which must be the front side of the house abutting the road and as the appellant had already drew the attention of P.Ws.1 and 3 by slamming the outer iron gate, which made P.Ws.1 and 3 to look towards the direction when the appellant was coming out and passing them closely, naturally, P.Ws.1 and 3 had the opportunity of watching the appellant closely. Hence, the blood stains in the white shirt ought to have been conspicuously visible for them. Even in the complaint Ex.P-1, P.W.1 has mentioned the presence of blood stains in the shirt of the appellant. .11. Yet another circumstances referred to by the learned counsel Mr.Arulraj is the absence of any cry or scream from the house of the deceased when she was murdered. According to him, the deceased must have raised alarm voice at the time of the attack and if really P.Ws.1, 3 and 4 were present in their house at that time, they might have heard the voice of the deceased and this circumstances also improbabilise the presence of P.Ws.1, 3 and 4 in their respective houses at the time of the occurrence and their evidence that they saw the appellant coming out of the house cannot be true. The case of the prosecution is that the appellant, who was formerly a driver working under the husband of the deceased, used to come to her house to attend certain domestic works whenever called or take the deceased in the car occasionally. Therefore, on the date of the occurrence also, he came there to attend the repair in the motor, which went out of order. When the appellant was inside the house, there was no reason for the deceased to become panicky and suspect, when especially the deceased herself had asked the appellant to come on that day to attend the repairs in the motor. Most of the injuries were found on the head of the deceased. When the appellant was inside the house, there was no reason for the deceased to become panicky and suspect, when especially the deceased herself had asked the appellant to come on that day to attend the repairs in the motor. Most of the injuries were found on the head of the deceased. The assailant should have struck at the head of the deceased when she was unaware of the danger and therefore, if the deceased was struck with M.O.22 with a heavy blow, she might have fallen down either unconsciously or dumb founded unable to make any cry or scream. Thereafter, the assailant might have repeatedly attacked her on the head. Therefore, there might have been no chance for the deceased to make a cry to draw the attention of the neighbours. Hence, this cannot be considered to be a circumstance to suspect the presence of the neighbours P.Ws.1, 3 and 4, at the time of the occurrence. 12. The learned counsel for the appellant commented upon the inefficiency of the Investigating Officer to find out the owner of M.O.14 red towel, M.0.15,electrical tester and M.O.19 left leg chappel and as P.W.14 would say that he was not able to ascertain the person to whom they belonged to, it leads to the suspicion that some other person might have also gained entry into the house and such person might have committed the offence. M.O.14 is only a towel and as the deceased was alone in the house probably, the towel M.O.14 could not be identified by others to explain whether this towel belonged to the deceased herself. Similarly, M.O.15 the electric tester and MO.19 the chappel also might be the articles of the deceased herself. For the reason that the Investigating Agency was not able to correctly tell to the court to whom these articles belonged, it cannot be inferred that they belonged to third parties and some other person also might have gained entry into the house. In view of the clear evidence of P.Ws.1 and 3 that the deceased will not allow the entry of strangers as the outer door would be always kept closed and the neighbours would say that the appellant entered into the house lastly by 1.30 p.m. there is no chance for the entry of any other person. In view of the clear evidence of P.Ws.1 and 3 that the deceased will not allow the entry of strangers as the outer door would be always kept closed and the neighbours would say that the appellant entered into the house lastly by 1.30 p.m. there is no chance for the entry of any other person. Even if some other person also had entered into the house of the deceased on that day, in view of the circumstances which we are going to refer again, connecting the appellant with the crime, there is no chance to hold that some other person should have committed this crime. .13. The learned counsel Mr.T. Arulraj would submit that even if the recovery of the stolen articles from the appellant is accepted, in the absence of any evidence for his participation in the commission of murder, the recovery of the articles from him will only prove that he is the receiver of the stolen articles and therefore, he cannot be punished for the offence of murder. In support of his argument, the learned counsel relies upon the decision of the Apex Court in Sanwat Khan v. State of Rajasthan A.I.R. 1956 S.C. 54, wherein the Supreme Court has held that when the evidence was only for the recovery of the stolen property from the accused and though the circumstances might indicate that the theft and the murder might have been committed at the same time, it was not safe to draw the inference that the person in possession of the stolen property was the murderer as suspicion cannot take the place of proof and therefore, the possession of the articles would prove that he must be either the receiver of the stolen article or he had committed the theft of the articles but it does not necessarily indicate that the theft and murder took place at one and the same time. But this view of the Apex Court has been reconsidered in the rent decision of the Apex Court in Gulab Chand v. State of M.P., (1995) 3 S.C.C. 574 , wherein the Apex Court would observe that when the accused was not affluent enough to possess the ornaments in his possession and from the nature of the evidence adduced and from the recovery of the said articles from his house and his dealing with the ornaments of the deceased immediately after the murder and robbery, a reasonable inference of the commission of murder and robbery can be drawn against the accused. The Apex Court further adds that from the circumstances, the murder and robbery could have been integral part of the same transaction and therefore, the presumption arising under Illustration (a) of Sec.114, Evidence Act is that not only the appellant had committed the murder of the deceased but also committed the robbery of her ornaments. 14. All the doubts created by the learned counsel for the appellant, which are nothing but myths, have been cleared by the prosecution and nothing remains unexplained or irreconcilable. Therefore, though the prosecution case is based on the circumstantial evidence, the circumstances are so strong well linked with the appellant unerringly pointing towards him as the perpetrator of the crime. The learned Public Prosecutor Mr.Shanmugasundaram explained that the evidence is so overwhelming in this case because P.Ws.1, 4 and 6 speak about the appellant’s presence in the house of the deceased and they being last seen together. He also would submit the conduct of the appellant in leaving house hurriedly by 2.30 p.m. agitatedly and having the bloodstains in his shirt and the moment he left the house, it was seen by P.Ws.1 and 3 that the deceased was found murdered and lastly, the recovery of the jewels from the appellant and also at the instance of the appellant, completely unravel the mystery as to the author of the crime. P.Ws.1 and 4 are the neighbours on either side of the deceased and P.W.6 is reading in the opposite row, opposite to the house of the deceased. P.W. 1 has mentioned that in the morning by 10.00 when he had been to the bark and was passing through the house of the deceased, he saw the appellant going to the house of the deceased with certain pipes. P.W. 1 has mentioned that in the morning by 10.00 when he had been to the bark and was passing through the house of the deceased, he saw the appellant going to the house of the deceased with certain pipes. P.W.6, who is an auditor, would say that on 29. 1994 evening he met the deceased at about 7.00 p.m. and that the deceased told him that the motor in her house went out of order and therefore, she had sent message to this appellant through his brother P.W.11 to come on the next day to attend the repair and he saw the appellant entering into the house of the deceased by about 9.30 a.m. on 29. 1994 and after sometime, he went out with a plastic bag in his hand. According to P.W.6 the appellant, by about 1.30 p.m. returned to the house of the deceased. The western neighbour P.W.4 also would say that around 1.30 p.m. on the date of the occurrence he saw this appellant and the deceased talking to each other when the appellant came to the house of the deceased and both of them, thereafter entered into the house. P.W.6 ‘thereafter, did not see the appellant whereas by about 2.30 p.m. P.Ws.1, 3 and 4 had seen him when he was coming out through the iron gate. P.Ws.1 and 3 have mentioned that as the appellant slammed the iron gate, they happened to see him when they were chatting sitting in the portico of the house and they saw the appellant coming out hurriedly in an agitated mood and moving in his cycle, towards the eastern side. Therefore, this shows that the appellant was within the house of the deceased from 1.30 p.m. till he left the house by 2.30 p.m. and as he was having bloodstains in the shirt, it gave suspicion to P.Ws.1 and 3, who immediately went to the house of the deceased. As the front side door was bolted inside as usual, they entered through the lane and reached the backyard where they saw the deceased lying dead with injuries on her head and her back portion was burnt with kerosene. Immediately they also found all the jewels worn by the deceased missing. As the front side door was bolted inside as usual, they entered through the lane and reached the backyard where they saw the deceased lying dead with injuries on her head and her back portion was burnt with kerosene. Immediately they also found all the jewels worn by the deceased missing. Therefore, this circumstance, viz., the appellant being the only person within the house of the deceased at the time of her death and he leaving hurriedly and agitatedly with bloodstians on his shirt, is an important circumstances to connect him with the crime. Ex.P-19 is the Serologist’s report to prove that the appellant’s shirt M.O.2, which was seized by the Inspector of Police at the instance of the appellant himself contained human ‘A’ group blood, which was the blood group of the deceased as the same group was found in the saree M.O.3, blouse piece M.O.24 and the petticoat M.O.23. This circumstance, therefore certainly connects the appellant with the crime. We have already elaborately dealt with the recovery of the jewels from the appellant. The accused was complaining to P.Ws.1 and 3 that he was struggling to maintain his family for want of work and the deceased also was not paying the wages properly. Therefore, it shows that the appellant was in impecunious circumstances and there was no possibility for him to possess all these jewels M.Os.5 to 10. Further, except M.O.5, all other jewels were kept buried in the backyard of the house of the appellant and they were recovered only at the instance of the appellant, who took them out from the place of concealment. Similarly, M.O.22, iron rod, which was thrown into the well, also was taken out only at the instance of the appellant and the doctor is of the opinion that his iron rod M.O.22 could have caused the lacerated injuries on the head of the deceased. Therefore, the recovery of the jewels is another landmark in the prosecution case to fix the perpetrator of the crime. Therefore, the recovery of the jewels is another landmark in the prosecution case to fix the perpetrator of the crime. In Laxmi Raj Shetty v. State of Tamil Nadu, A.I.R. 1988 S.C. 1274, the Apex Court has held that in a case where the evidence is of a circumstantial nature, all the facts established should be consistent only with the hypothesis of the guilt of the accused and the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. According to the Apex Court, there must be a chain of evidence so far complete as not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. All the circumstances referred to above encircle only the appellant and there is no hypothesis consistent with the innocence of the appellant. Therefore, the only possible conclusion that can be arrived at is that this appellant himself is the culprit, who had committed the heinous crime of murder and also the robbery by removing the gold ornaments of the deceased. The learned Additional District and Sessions Judge, Nagapattinam, is perfectly right in holding this appellant guilty of the offence under Secs.302 and 397, Indian Penal Code. Therefore, we are of the considered view that the finding of the appellant guilty of the abovesaid offence is well founded. 15. Coming to the punishment, the learned Additional District and Sessions Judge has inflicted the capital punishment, sentence of death, to the appellant for the offence under Sec.302, Indian Penal Code and he has given certain reasons namely that he was very close to the deceased as he was working under the husband of the deceased as his driver, that in view of this closeness, as the deceased had reposed fullest confidence on the appellant the appellant should have taken the responsibility of protecting the deceased but with his perfidy and treachery, he had attacked her with the evil intention of murdering her for stealing her jewels and to confirm her death, he burnt her by pouring kerosene on her back and therefore, this brutal murder falls within the parameters of the rarest of rare cases deserving the sentence of death. The learned Judge has referred to three decisions in Amrulal Someshwar Joshi v. State of Maharashtra, A.I.R. 1994 S.C. 2516, Suresh Chandra Bashri v. State of Bihar, A.I.R. 1994 S.C. 2420 and Kailash Kaur v. State of Punjab, A.I.R. 1987 S.C. 1368. The learned Public Prosecutor Mr.Shanmugasundaram also argued that this is a case in which the servant, on whom the deceased had reposed fullest confidence, had betrayed her for the sake of her jewels and therefore, this is a rarest of rare case warranting the death penalty. The learned Public Prosecutor has cited some more decisions to confirm the death penalty on the appellant. Before we pass on to the other decisions cited by the learned Public Prosecutor, we have to distinguish those three decisions referred to by the lower court. The first decision viz., Amrutlal Someshwar Joshi v. State of Maharashtra, A.I.R. 1994 S.C. 2516 is, no doubt, a case of murder for gain by the domestic servant and their Lordships of the Apex Court have observed that the attack was brutal and the same established that the accused left no chance for anybody’s survival lest they may figure as a witness and that the heinous crime had been committed in a cruel and diabolical manner only with a view to commit robbery, that the subsequent conduct and his movements would show that the accused was a clever criminal prepared to go to any extent in committing such serious crimes for his personal gain and the murders committed by him manifest and exceptional depravity falling within the category of the rarest of the rare cases for awarding the death sentence. But in that case, apart from the master, who was aged 77 years, two other persons including a child of three years old, were also murdered. So, the culprit of that case did not spare even a child of three years old. The next case, Suresh Chandra Bashri v. State of Bihar, A.I.R. 1994 S.C. 2420, relied on by the learned Judge, is a case in which the husband himself had murdered his own wife and his two children for the reason that his wife wanted to settle in a foreign country after disposing of her properties. Apart from the wife, two innocent children also were killed by their own father within showing even the minimum sympathy. Apart from the wife, two innocent children also were killed by their own father within showing even the minimum sympathy. Therefore, in that case also, it was observed that the murder was extremely brutal, gruesome, diabolical, revelging and was committed in a distardly manner so as to arouse intense and extreme indignation of the society. The third case Kailash Kaur v. State of Punjab, A.I.R. 1987 S.C. 1368 is a dowry death case in which the husband and the inlaws poured kerosene and set fire the deceased, who was throughout harassed. Therefore, we feel that the facts of these cases are distinguishable from the facts of the present case on hand. 16. At this stage, we feel it is proper to refer the statement of the appellant made to the police soon after his arrest, the admissible portion of which is marked as Ex.P-4. It is true that under Sec.25 of the Indian Evidence Act, no confession made to a police officer shall be proved as against the accused of an offence and under See.27 of the Act, the information received leading to the recovery alone is admissible in evidence. Even though a confession of the accused to a police officer cannot be used against the accused, the Courts have held that such confession can be used in favour of the accused provided the facts therein are not inconsistent to the prosecution case. In this case, there is no evidence on the prosecution side as to what had happened within the house, after the entry of the appellant. P.W.6 in his evidence would say that the deceased had told him on the previous day evening that she Had sent word to the appellant to come on the next day to attend the motor, which went out of order. Therefore, this evidence of P.W.6 makes it clear that the appellant himself did not come to the house with any pre-conceived motive but he was asked by the deceased herself to come to her house to repair the motor. P.W.6 had seen the appellant by about 9.30 a.m. entering the house of the deceased. Therefore, this evidence of P.W.6 makes it clear that the appellant himself did not come to the house with any pre-conceived motive but he was asked by the deceased herself to come to her house to repair the motor. P.W.6 had seen the appellant by about 9.30 a.m. entering the house of the deceased. The appellant would say in his confession statement: This shows that the appellant came to the house of the deceased without taking his breakfast and when he requested the deceased to pay Rs.10 for taking his breakfast, the deceased neither paid the money nor provided food except a cup of coffee and extracted the work from him fill she was murdered around 2.30 p.m. The appellant was utilised for repairing the motor, thereafter to go to the carpenter’s house to fetch him for attending another repair and thereafter was sent to sell the curry leaves which he could not seen it in the market and returned by 1.30 p.m. P.W.6 also would confirm that the appellant, who entered into the house around 9.30 a.m. was coming out twice and he refers to a plastic bag carried by the appellant when he was coming out and this plastic bag referred to, was containing curry leaves carried by the appellant to the market for sale. The appellant also has stated in the preamble of his confession that initially, he was working in A.D.J. Ladies Polytechnic as a driver and thereafter, when his brother P.W.11 joined Chozhan Transport Corporation Service, he came to work under the advocate N.R. Subramanian on the recommendation of his brother on a monthly salary of Rs.500, that when he represented to N.R. Subramanian that the salary was not sufficient for his family, he promised that he would arrange for some loan but as he suddenly died, his request to the advocate N.R. Subramanian remained unfulfilled. He has also stated in his confession statement that a sum of Rs.3,000 was due to him towards his wages and after the death of N.R. Subramanian as the car was not used by his wife, he was thrown out of employment except that he was called to attend certain domestic works, that therefore, he was doing electrical works but the earning was not sufficient to meet both the ends. It is further stated by him that the amount of Rs.3,000 which was due to him from his master was repeatedly demanded by him from the deceased Ranganayaki Ammal but she said that she did not know anything about the dues from her husband and when he requested the sons of his deceased master when they came to attend the ceremonies, they said that they had informed their mother to give him the amount but the deceased Ranganayaki Ammal did not pay the amount. Therefore, this shows that the appellant was claiming some amount from the deceased Ranganayaki Ammal as it was due to him from his deceased master but she was refusing to pay the same. The appellant’s version is that on the date of the occurrence also after his return from the market with curry leaves, when he demanded the money so that he could invest it in some business elsewhere and carry on his livelihood, the deceased said that she would not pay even a pie and had scolded him indecently. Therefore, it is made clear that the appellant had not only grievance against the deceased, his erstwhile master’s wife, but also was irritated by her because when he was starving in the morning, she refused to give money for taking in his breakfast but extracted work from him till 1.30 in the afternoon. Added to that is the scolding of the deceased when the appellant demanded money from her. So, in this background, we have to approach the case regarding the commission of the offence of murder by the appellant. As a matter of fact, the learned Additional District and Sessions Judge, in paragraph 32 of his judgment, would refer to this conduct of the.........deceased stating that the deceased even without engaging a servant maid, was attending to her works by remaining alone, that she was very strict and refused to pay the cash demanded by the appellant and her scolding, made against the appellant, had not only created bitterness against her but also a feeling of anger. However, the learned Judge would observe that the gruesome murder committed by the appellant falls within the category of the rarest of the rare cases. 17. The learned Public Prosecutor Mr. However, the learned Judge would observe that the gruesome murder committed by the appellant falls within the category of the rarest of the rare cases. 17. The learned Public Prosecutor Mr. Shanmugasundaram referred to a recent decision of the Apex Court in Rajiv alias Ramchandra v. State of Rajasthan, J.T. (1996) 2 S.C. 175, in which five persons were murdered in a cool and calculated manner without any provocation. In that case, without any motive, the accused, in a cool and calculated manner, killed the wife and three minor children while they were asleep and he went to the neighbours house and attempt to kill his neighbour’s wife also, who was asleep, and when the neighbour came on his way, he immediately killed him in an extremely brutal manner. So, in that case, the accused committed murder of three minor children, who were asleep, when they did not even give any resistance, and he was going on murdering the persons, who were coming in front of him. It was argued in the Apex Court that the appellant must have been an insane person on account of his conduct in killing the persons, who were not inimical towards him. The Apex Court held that even a temporary psyche disorder was not acceptable and as he betrayed the trust reposed in him by his wife and children, he deserved the death penalty. The learned Public Prosecutor cited another decision in Gentela Vijavardhan Rao and another v. State of Andhra Pradesh, J.T. (1996) 7 S.C. 491, wherein the Apex Court has held as follows: "20 ....The Bench laid stress on the reaction of the community at large in cases when its collective conscience is shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.‘ Rarest of rare cases would be discerned when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime’. The Bench has suggested a few instances thereof as guidelines and has observed that in the order to apply those guidelines, the following questions may be asked and answered: (1) Was there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence." (2) Were the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" The Apex Court would observe further, "23.... High Court also dealt with the sentence aspect in detail, giving the most anxious consideration keeping in mind that the life once taken under the order of the Court cannot be registered by the order of the Court and that mercy seasons justice, but at the same time guards against misplaced sympathy for that would shake the confidence of the citizens in the administration of justice and would have the tenancy to tempt them to resort to private vengeance which would be destructive of the administration of justice...... 25. Bearing in mind the principles governing the sentencing police, particularly the death sentence, we have considered the overall picture in this case. We have no doubt that this is one of the rarest of the rare cases not merely because of the record number of innocent human beings roasted alive by the appellants but by the inhuman manner in which, they have plotted the scheme and executed it. What they needed, perhaps, was only wealth by pludering others. For that motive, they designed a scheme with the highest proportion of viciousness. Carrying most inflammable liquid in a can together with a match box, they sneaked into a passenger bus during the dawn of the ill-fated day none of the harmless faces of the unfortunate incinerating them into charred corpse in a split second. For that motive, they designed a scheme with the highest proportion of viciousness. Carrying most inflammable liquid in a can together with a match box, they sneaked into a passenger bus during the dawn of the ill-fated day none of the harmless faces of the unfortunate incinerating them into charred corpse in a split second. When human mind was allowed to be transferred itself into such demonic form and the planned program was executed with extreme depravity, we have no hesitation to agree with the courts below that this is one of the rarest of the rare cases in Which alternative option is unquestionably foreclosed." The above narration show that 23 passengers, including some innocent children, in a bus were roasted to death by the appellants therein and many other passengers sustained serious burns, the offence having been committed only for wealth. Apart from the plurality of the casualties in that case, as observed by the Apex Court, even the cute faces of the innocent children did not deter the horrendous criminals from committing the heinous crime of setting fire to the bus to incinerate may valuable lives. Therefore, the manner of the execution of that plot mercilessly, had made that case as a rarest of the rare cases warranting the death penalty. Another decision cited by the learned Public Prosecutor is Kehar Singh v. State (Delhi Admn.), A.I.R. 1988 S.C.1883, popularly known as ‘Indira Gandhi murder case’ wherein the Supreme Court expressing the shock that the persons, who were posted to protect the then Prime Minister from the intruder or from any attack from outside, had themselves resorted to aim their guns against the then Prime Minister Indira Gandhi, held that the fact that she was unarmed and was attacked by those two persons with a series of bullets, and the manner in which mercilessly she was attached by the accused therein on whom the confidence was reposed to give her protection, repels any consideration of reduction of sentence and the gruesome murder committed by the accused therein, who were aimed to protect her, makes it clear that the did not deserve any leniency in the matter of sentence as there was no reason or mitigating circumstances on the question of sentence to reduce the death penalty. The learned Public Prosecutor Mr. The learned Public Prosecutor Mr. Shanmugasundaram emphasized that from the above decisions, the motive for the murder and the manner of execution alone are to be taken into consideration to hold whether it is a rarest of the rare cases and the ingredients set out in the above cases fit in for this case for the reason that this is also a case of murder for gain, as the appellant in whom, the deceased had absolute confidence and faith by allowing him inside when she was alone, had misused it and he not only cruelly beat her on the head several times to take out her life but also poured kerosene on her back and set fire to make it sure that she should not survive so that his involvement in the crime should not come to light, and when this case, is perceived in those angles. certainly, it is a rarest of the rare case deserving death penalty and therefore, the Court below is perfectly correct in awarding the death sentence. 18.Per contra, the learned counsel for the appellant Mr.Arulraj relies upon a series of decisions to distinguish this case from the cases cited by the learned Public Prosecutor and he, very much relies upon the famous case, Bachan Singh v. State of Punjab, 1980 Crl.L.J. 636, wherein the Apex Court has used the expression of rarest of the rare cases for awarding the death penalty. The Apex Court would observe in paragraph 207 as follows: "...Judges should never be blood-thirsty. Hanging of murderers has never been to good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlines in Sec. 354(3) viz.; that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concert for the dignity of human life postulates resistance to take a life through law’s instrumentality. A real and abiding concert for the dignity of human life postulates resistance to take a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed." In Karam Ali v. State of U.P., A.I.R. 1978 S.C. 35, while awarding the punishment for the offence of murder awarding the punishment for the offence of Supreme Court would observe that the accused had three daughters and two sons, all of whom were minors, and as the appellant had happened to be the earning member for the family and also having regard to the economic condition and the special circumstances of this case, though the case was of brutal murder, yet having regard to the facts and circumstances relating to the family of the accused, the Supreme’ Court commuted the sentence of death to imprisonment for life. In Rajendrd Prasad v. State of U.P., A.I.R. 1979 S.C. 916, while emphasizing death penalty, must relate not to the crime as such but to the criminal, the Supreme Court held that the crime may be shocking and yet the criminal may not de-serve death penalty whereas the crime may be less shocking than other murders, yet the callous criminal e.g. a lethal economic offender, may be jeopardising societal existence by his act of murder. The Apex Court would observe in paragraph No.82(10) of its judgment, as follows: "We must always have the brooding thought that there is a divinity in every mart and that none is beyond redemption. But death penalty, still on our Code, is last step in a narrow category where, within a reasonable spell; the murderer is not likely to be cured and tends to murder others, even within the prison Or immediately on release, if left alive - a king cobra, which, by chronic habit, knows only to sting- to death unless defanged if possible. The patience of society must be tempered by the prudence of social security and that is the limited justification for deprivation of fundamental rights by extinguishment of the whole human being. The extreme penalty can be invoked only in extreme situations." In another case in Allauddin Mian v. State of Bihar, 1989 Crl.L.J. 1466, the view of the Apex Court is as follows: "12.... The extreme penalty can be invoked only in extreme situations." In another case in Allauddin Mian v. State of Bihar, 1989 Crl.L.J. 1466, the view of the Apex Court is as follows: "12.... However, in order that the sentences may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should, as observed in Bachan Singh’s case, A.I.R. 1980 S.C. 98, be reserved for the rarest of rare cases which are of an exceptional nature. Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a three-fold purpose (i) punitive (ii) deterrent and (iii) protective. That is why this court in Bachan Singh’s case, A.I.R. 1980 S.C. 98 observed that when the question of choice of sentence is under consideration, the Court must not only look to the crime but also the circumstances of the criminal and the impact of the crime on the community.. Unless the nature of the crime and the circumstances of the Offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only...." 19. Unless the nature of the crime and the circumstances of the Offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only...." 19. The learned counsel Mr.Arulraj would submit that the appellant-has no criminal record in the past and all along he was liked by the family of the deceased in view of his docile character and sincerity in his duty, that though he was not acting as the driver on monthly wages after the death of N.R. Subramanian, husband- of the deceased the appellant, on account of his past connection with the family as driver, himself used to come and clean the car as spoken by the witnesses; that when his conduct was such, the above decision of the Apex Court is squarely applicable for this case because he had not committed any offence before this incident and he is not a menace to the society and there is no chance for this appellant repeating such Offence after his serving the period of life imprisonment and therefore, there are no materials in this case to held that the life sentence is inadequate and extreme punishment of death alone is adequate. He also would submit that for the reason that the appellant had beat the deceased with M.O.22 iron rod and thereafter set fire on her, calling it as a gruesome murder, this case cannot be brought under the rarest of the rare cases and as every murder is gruesome, unless there are aggravating circumstances compelling the court to impose the capital punishment, the normal sentence of life imprisonment alone has to be imposed in this case. The learned counsel points out a decision of the Supreme Court in Muntappa v. State of Tamil Nadu, A.I.R. 1981 S.C. 1220: 1981 Crl.L.J. 726: (1981)3 S.C.C. 11 :1981 S.C.C. (Crl.) 617. The Apex Court has held in that case that all murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence, then every murder shall have to be visited with that sentence and in that event, death sentence will become the rule, not an exception and Sec.354(3) will become a dead letter. In Jasu v. State of Rajasthan, 1995 Crl.L.J. 1160, the Rajasthan High Court has taken the view that when the accused has not committed any crime against the society, although committing brutal murder, and no material was brought to the notice of the Court to show that the accused was a member of an organised mafia or a habitual Offender but belonging to a very poor family, he might be given an opportunity to become a reformed member of the society and therefore, the life imprisonment was the proper sentence for him. The Bench would observe. "32.... The accused appellant admittedly belongs to a very poor family of a labour class. In our humble opinion, he is entitled to be given an opportunity to become a reformed member of society in keeping with the concern for the dignity of human life which is basic concept of our Indian culture. With the passage of time, deterrent theory of punishment in civilized society is loosing its importance and reformative theory is getting universal acceptance." In Shankar v. State of Tamil Nadu, (1994)4 S.C.C. 478 , when six persons were killed in a organised manner, the Apex Court, while referring to the punishment, has held that the aggravating and mitigating circumstances of the crime are the criteria for the death penalty and if the murder was diabolically conceived and cruelly executed, it would justify the imposition of death penalty on the murderer. While referring to the aggravating circumstances, the Apex Court, has cited the decision in Bachan Singh v. State of Punjab, 1980 S.C.C. (Crl.) 580, mentioned the following as aggravating circumstances: "Aggravating circumstances: A Court may however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality: or .(b) if the murder involves exceptional depravity; or .(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed (i) while such member or public servant was on duty; or .(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as. the case may be, or had ceased to be such member or public servant; or .(d) if the murder is of a person who had acted in the lawful discharge of his duty under Sec.43 of . the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a Police Officer demanding his aid or requiring his assistance under Sec.37 and Sec.129 of the said Code." Then the following are mentioned as mitigating circumstances: "Mitigating circumstance. In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances: .(1) That the, offence was committed under the influence of extreme mental or emotional disturbance., .(2) The age of the accused If, the accused is young or old, he shall not be sentenced to death. .(3) The probability that the accused would not commit criminal acts of violence as would constitute continuing threat to society. .(4) The probability that the accused can be re-formed and rehabilitated, The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. .(5) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. .(6) That the accused, acted under the duress or domination of another person. .(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct." Applying these principles in this case, it is pointed out by the learned counsel for the appellant that the appellant was under the influence of extreme mental and emotional disturbance for the reason that the deceased was extracting work from him without paying the wages due to him and also that she had scolded him, as found in his confession statement. Further, it was not a pre-planned murder and everything happened within a few minutes soon after the appellant happened to see the deceased keeping the jewels within a container. To answer the persistent argument of the learned Public Prosecutor that the deceased reposed confidence and trust upon the appellant, as he was a servant, and that she was a defenceless women, the learned counsel for the appellant had cited few decisions, in which domestic servants had committed the murder of the members in the family of the Master for gain. As a matter of fact, in this case, the appellant was not a domestic servant because the evidence discloses that after the death of the husband of the deceased, the deceased was not using the car regularly and the appellant also was not kept as a driver. But whenever she wanted to go out, she used to send for the appellant and only and only on such occasions, he would be coming to the house of the deceased. It is because of this, the appellant was doing the electrical works privately and therefore, it cannot be stated that the appellant was employed as a domestic servant under the deceased. In Earabharappa v. State of Kamataka, A.I.R. 1983 S.C. 446: 1983 Crl.L.J. 546: (1983)1 S.C.C. 330: 1983 S.C.C. (Crl.) 447, the domestic servant had murdered his Master’s wife for gain and the Supreme Court observes, "14. Finally, there remains the question of sentence. It was cruel hand of destiny that the deceased Smt. Bachamma met a violent end by being strangulated to death by the appellant who betrayed the trust of his master P.W.3 and committed her preplanned cold blooded murder for greed in achieving his object of committing the robbery of the gold ornaments on her person and in ransacking the iron safe and the almirah kept in her bed room on the fateful night The appellant was guilty of a heinous crime and deserves the extreme penalty. But we are bound by the rule laid down in Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684 .A.I.R. 1980 S.C. 898, where the Court, moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the ‘rarest of the rare’ cases. The result now is that capital punishment is seldom employed evert though it may be a crime against the society and the brutality of the crime shocks the judicial conscience. A sense or pattern of sentence which fails to take due account of me gravity of the offence can seriously undermine respect for law. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Failure to impose a death sentence in such grave cases where it is a crime against the society-particularly in cases of murders committed with extreme brutality - will bring into naught the sentence of death provided by Sec.302 of Penal Code. The test laid down in Bachan Singh’s case, A.I.R. 1980 S.C. 898, is unfortunately not fulfilled in the instant case. Left with no other alternative, we are constrained to commute the sentence of death passed on the appellant in to one for imprisonment for life." Ranjeet Bahadur v. State of U.P, (1993)3 Crimes 387 is also a case of murder committed by the servant, who came from Nepal, and was employed only about 20 days prior to the occurrence. The Bench of the Allahabad High Court has held that the general rule in a murder case is that sentence of life imprisonment should be awarded but in exceptional cases, for reasons to be recorded, death sentence can be awarded. In that case, which was a case of murder for gain by the domestic servant, the accused came from Nepal for an employment and his age was 20 years at the time of the occurrence. As the accused was removed from service once during this period by the deceased but the husband of the deceased retained him in employment, and he was asked to do jobs like cleaning the latrine and also urinal and was not given proper food, the accused was not happy with engagement, especially due to the behaviour of the deceased. It is further mentioned therein that the deceased talked too much and the accused did not like this behaviour extended to him by the deceased: Taking into consideration of these circumstances and the antecedent of the accused that he had not committed any crime before, the Allahabad High Court has held that the normal punishment, namely the sentence of life imprisonment is sufficient in that case. In P.B. Aind v. State of Maharashtra, 1995 Crl.L.J. 1694, the domestic servant committed murder of the master and also inflicted injuries on the person of wife of the deceased master. In P.B. Aind v. State of Maharashtra, 1995 Crl.L.J. 1694, the domestic servant committed murder of the master and also inflicted injuries on the person of wife of the deceased master. The evidence revealed that when the accused, while committing the theft, was seen by the deceased and when the deceased tried to stop the accused from committing robbery, the master was assaulted with the lid of the pressure cooker causing fatal injuries on the master and bruises on the wife of the master. The Bombay High Court took the view in that case that the accused had no bad antecedent and as he was seen by the master and his wife while committing the theft, he attacked them with the articles and he had not preplanned to commit murder. For that reason, the High Court had awarded only life imprisonment. 20. In the light of the above decisions of the various High Courts and also the Apex Court, when we look into the facts of this case and the background at which the appellant had developed bitterness against the deceased, we feel that this case can be distinguished from the cases falling under the category of rarest of the rare cases. As mentioned above, the lower Court itself has mentioned that even an ordinary man would have been exasperated by the conduct of the deceased in treating the appellant while extracting the work from him. Further, it is not a planned murder and the appellant came to the house of the deceased only to attend the repair of the electric motor and the idea of killing the deceased should have occurred to him only the moment he saw the deceased removing the jewels from her neck and keeping them in a container before she wanted to take bath. Therefore, me availability of the jewels tempted him and this sudden development by impulse off a weak moment, rather a momentary lapse of good senses, aggravated by the bitterness he developed against the deceased, blind folded his good conscience which he was maintaining all along in the past; He has no bad antecedent and he is not a habitual Offender to hold that there is no chance for his remorse and lead a reformed life after the period of life imprisonment. In the background of these circumstances, we are of the considered view that this is not an exceptional case falling within the category of rarest of rare cases for convicting the appellant with judicial death. Therefore, we hold that the sentence of life imprisonment is sufficient to meet the ends of justice. 21. Though we confirm the findings of the lower Court with regard to the guiltiness of the appellant for the offences under Secs.302 and 392 read with Sec.397, Indian Penal Code, the penalty of death imposed by the court below is modified to that of the life imprisonment. In other respects, the findings of the Court below is confirmed. 22. In the result, subject to the modification of the sentence from penalty of death to life Imprisonment, the appeal otherwise stands dismissed. The reference is answered accordingly.