R. P. AWASTHY, J. ( 1 ) CRIMINAL Appeals Nos. 343 and 344 of 1996 preferred separately and respective1y by Mukund alias Kundu Mishra and Deva alias Dev Kumar have been filed against the finding of holding them guilty for committing offences punishable under Sections 449, 394 read with Section 397 of the Indian Penal Code and 302 read with Section 34 of the Indian Penal Code and sentencing them respectively to Rigorous Imprisonment for ten years, ten year:, seven years and to death. The Court has also made a reference under Sub-Section (1) of Section 366, Code of Criminal Procedure for confirmation of the said sentence of death awarded to the accused. All of the said three cases, i. e. Criminal Appeal Nos. 343 and 344 of 1996 and Criminal Reference No. 1 of 1996 arise out of one and the same Judgment and therefore, all of the said cases shall be simultaneously disposed of by this single judgment. ( 2 ) PROSECUTION case is that Smt. Sarita Dubey (aged 24 years) used to reside along with her daughter Kumari Jyoti Dubey (aged about 6 years) and her son Deepak Dubey (aged about 4 years) in Panchwati Colony Rajkishore Nagar, Bilaspur. Her husband Anuj Prasad Dubey (PW/9) used to reside, during the relevant period, at Bombay in connection with his business of taking contracts for construction. He used to visit Bilaspur from Bombay from time to time. ( 3 ) THERE is a vacant house belonging to Sardar Kuljeet Singh which is adjacent to the house of Anuj Prasad Dubey and Sarita Dubey. Just in front of the house of Anuj Prasad Dubey, across the road there are houses of one Shri T. B. Singh and Shri S. S. Dixit (PW/1) and his daughter Ku. Shraddha Dixit (PW/6 ). On the eastern side of the house of Anuj Prasad Dubey, there is a vacant plot and thereafter there is a house of Bhagwati Saran Singh. Likewise on the Eastern side of the house of Shri S. S. Dixit and Shri T. B. Singh there is vacant plot and thereafter there is house of Doctor Awdesh Kumar Singh (PW/7 ). The house of Smt. Shailja Singh (PW/8) is by the side of the house of Dr. Awdesh Kumar Singh (PW/7 ). Likewise on the Eastern side of the house of Shri S. S. Dixit and Shri T. B. Singh there is vacant plot and thereafter there is house of Doctor Awdesh Kumar Singh (PW/7 ). The house of Smt. Shailja Singh (PW/8) is by the side of the house of Dr. Awdesh Kumar Singh (PW/7 ). In front of the houses of Shri S. S. Dixit and Shri T. B. Singh, there is a vacant house of Shri R. B. Singh. ( 4 ) ON 17-1-1994,smt. Sarita Dubey had gone to market in the noon and had returned to her house in the afternoon. In the evening, Smt. Shailja Singh (PW/8) had taken tea in the house of Smt. Sarita Dubey and thereafter Smt. Shailja Singh had returned to her house. ( 5 ) PRIOR to residing at Bilaspur Smt. Sarita Dubey had resided alongwith her husband Anuj Prasad Dubey (PW/9) in cosmopolitan cities like Ahmedabad and Delhi and she was very much conscious about her own security and the security of her children. She used to lock the gate of her house in the early hours of night and used to open the said channel gate only when she used to see that the visitor was either known to her or was related to them. On 17-1-1994 also in the early hours of the night, Smt. Sarita Dubey had locked the channel gate which is fixed in the compound wall of her house. ( 6 ) ACCUSED-APPELLANT Mukund Mishra is son-in-law of the cousin of Anuj Prasad Dubey (PW/9), used to reside in Bilaspur itself and, used to visit the house of Anuj Prasad Dubey even when Anuj Prasad Dubey used to be away from his house in connection with his business. Accused Mukund Mishra had taken a loan of Rs. 10,000/- from Anuj Prasad Dubey about 7 or 8 months prior to the date of incident. Mukund Mishra had under-taken that he would be repaying the said amount within 8 days of taking the said loan. However, he did not repay the said loan. Thereupon, Anuj Prasad Dubey made a demand of the said amount from his cousin Santosh Dubey. On the said demand being made, Santosh Dubey repaid the said loan of Rs. 10,000/- to Anuj Prasad Dubey after the lapse of' more than three months from the date of' advancing the said loan. However, he did not repay the said loan. Thereupon, Anuj Prasad Dubey made a demand of the said amount from his cousin Santosh Dubey. On the said demand being made, Santosh Dubey repaid the said loan of Rs. 10,000/- to Anuj Prasad Dubey after the lapse of' more than three months from the date of' advancing the said loan. ( 7 ) ABOUT three months thereafter Mukund Mishra again made a demand of Rs. 10,000/- from his father-in-law Santosh Dubey. When Santosh Dubey declined to advance any loan to Mukund Mishra, he started pestering Anuj Prasad Dubey for making the said payment to him. Mukund Mishra used to tell Anuj Prasad Dubey that either Anuj Prasad Dubey should give the said amount to him or should asksantosh Dubey to make the said payment to him. Thus, during the relevant period Mukund Mishra always used to make demand for money from Anuj Prasad Dubey and always remained indebted. ( 8 ) ON 17-1-1994 at about 7 or 7. 30 p. m. Smt. Shailja Singh (PW/8) had seen one person entering the house of Smt. Sarita Dubey along with a cycle which he was carrying. She also saw that another person was standing in front of the house of Smt. Sarita Dubey alongwith a cycle. ( 9 ) AT about 8. 30 or 9. 00 p. m. on 17-1-1994, Ku. Shraddha Dixit (PW/6) had gone on the terrace of her house to bring the washed clothes which were placed there for being dried. When she was getting down from the terrace of her house and was present in the stairs of her house, she heard the sound of some lady shrieking. Thereupon, she got down from the stairs and enquired from her mother as to whether it was she who was shrieking. Thereupon her mother told her that she was merely shouting at dog and was not shrieking. Her mother also told her that since she was scolding the dog, she could or did not hear any, cry or scream of any lady coming. ( 10 ) ON the next date that is 18-1-1994 at about 12 O' clock Rickshaw driver came to the house of Smt. Sarita Dubey and called her children from the road. Thereupon, Smt. Shailja Singh came out of her house and asked the Rickshaw driver to call one Bangle Seller. ( 10 ) ON the next date that is 18-1-1994 at about 12 O' clock Rickshaw driver came to the house of Smt. Sarita Dubey and called her children from the road. Thereupon, Smt. Shailja Singh came out of her house and asked the Rickshaw driver to call one Bangle Seller. Thereafter, she was seeing bangles for purchasing them. A girl by name Ranu who was residing in the neighbourhood of Smt. Shailja Singh came to her. Smt. Shailja Singh sent Ranu to call Smt. Sarita Dubey. Ranu told her that the house of Smt. Sarita Dubey was open and Smt. Sarita Dubey was not present either in the drawing room or in the Court-yard or in the terrace. Thereupon Smt. Shailja Singh (PW/8) went to the house of Sarita Dubey and when she went to the bed room of her house, she found that Smt. Sarita Dubey was lying dead on the floor of her bed room. Her hands and legs were tied with a coir string and there was incised injury on her neck. There had been profuse bleeding from the said injury on her neck and blood was lying on floor of the said bed room. She further found that a piece of shawl was thrust in the mouth of Smt. Sarita Dubey. She also found that on the beds of the said bed room, Jyoti and Deepak were lying dead. She also found that the articles in the said bed-room were lying scattered and the iron Almirah which was placed in the said room was lying open. ( 11 ) SMT. Shailja Singh (PW/8) came out screaming of the house of Smt. Sarita Dubey and called Shri Awdhesh Kumar Singh (PW/7) and narrated the said facts. Thereafter Shri Awdesh Kumar Singh called Shri Bhagwati Singh, who resided just in front of his house and Shri Awdesh Kumar Singh alongwith Shri Bhagwati went to the bed room of the house of Smt. Sarita Dubey. Both of them found the same facts as were narrated by Smt. Shailja Singh. They also noticed that after thrusting a piece of Shawl in the mouth of Smt. Sarita Dubey, her mouth was tied by a Sari. They further noticed that the neck of Smt. Sarita Dubey was cut and too much of blood was lying on the floor of the said bed-room. ( 12 ) ON seeing the said facts, Dr. They also noticed that after thrusting a piece of Shawl in the mouth of Smt. Sarita Dubey, her mouth was tied by a Sari. They further noticed that the neck of Smt. Sarita Dubey was cut and too much of blood was lying on the floor of the said bed-room. ( 12 ) ON seeing the said facts, Dr. Awdesh Kumar Singh (PW/7) sent an information to Shri Santosh Dubey and called him. Thereafter, he himself went to Police Station Sarkanda, where he gave an oral information regarding the unnatural death of the said three persons. On the basis of the said information given by Dr. Awdhesh Kumar Singh (PW/7) first information report (Ex. P/26) was recorded at 1. 35 p. m. at Police Station Sarkanda. ( 13 ) IN the noon on 18-1-1994, S. O. of P. S. City Kotwali, Bilaspur, Shri R. K. Rai (PW/11) was on the duty and was taking a round in the city alongwith C. S. P. Bilaspur in his jeep. At that time he received a message by radio that grue-some murder had taken place in Rajkishore Nagar and that the S. P. had directed the C. S. P. and the S. O. 's of Police Stations at Bilaspur to reach the place of the incident in Panchwati Colony, Rajkishore Nagar. Thereupon, Shri R. K. Rai reached the place of the incident alongwith City Superintendent Police. There he found that Superintendent of police and other High Officials of Police Department of Bilaspur District were present. As S. O. of P. S. Sarkanda, Shri. R. S. Rajpoot was on leave, Superintendent of Police entrusted the investigation of the said case to Shri R. K. Rai (PW/11 ). As per order dated 18-1-1994 (Ex. P/27) Superintendent of Police Bilaspur ordered that seven other Police Officials would assist Shri R. K. Rai in the matter of the said investigation. ( 14 ) AFTER recording first information report (Ex. P/26), Sub-Inspector Shri Kerketta (PW/14) recorded the reports of untimely and unnatural death of Smt. Sarita Dubey and both of her children and he (Sub Inspector Kerketta) also reached the place of the incident. ( 15 ) POLICE Photographer, Private Photographer, Police dog and scientist of Forensic Science Laboratory Department also reached the place of the incident and started performing their duties and work. ( 15 ) POLICE Photographer, Private Photographer, Police dog and scientist of Forensic Science Laboratory Department also reached the place of the incident and started performing their duties and work. ( 16 ) AFTER Photographs of the said place having been taken, the S. O. Shri R. K. Rai (PW/11) conducted usual death inquest as per memos (Ex. P/ 1 to Ex. P/3 ). In the said inquest it was found that the arms of Smt. Sarita Dubey were tied towards her back by means of a coir-string. Her legs were also tied with a coir-string. There was a deep and wide incised wound on the neck of Smt. Sarita Dubey. Throat of Deepak Dubey was also found to be cut while there was mark of throttling on the neck of Kumari Jyoti Dubey. ( 17 ) AFTER conduction of the said death inquest, the pieces of ropes with which the arms and legs of Smt. Sarita Dubey tied were seized as per seizure Memo (Ex. P/7 ). A piece of Shawl which was thrust in the mouth of Smt. Sarita Dubey and the Sari which was tied on her mouth, (and which pieces of Silken Sari were cut at the time of Death inquest) were seized as per seizure memo (Ex. P/8 ). Dried blood lying on the floor was got scratched and was seized as per seizure memo (Ex. P/9 ). ( 18 ) IN the drawing room at the place shown by letter-H in the map of spot (Ex. P/30), a Television was placed on a stand in which stand two glasses of stainless-steel were found. There were marks of finger prints on the said glasses of stainless-steel. There were drops of blood like stains in the drawing room as well, which blood was collected in a cotton and the said glasses and scrapping of the drops of blood like stains, found on the floor of the drawing room were seized as per seizure memo (Ex. P/10 ). There were drops of blood like stains in the drawing room as well, which blood was collected in a cotton and the said glasses and scrapping of the drops of blood like stains, found on the floor of the drawing room were seized as per seizure memo (Ex. P/10 ). ( 19 ) BROKEN pieces of bangles, broken pieces of Mangal Sootra consisting of silver wire in which there were beads of black colour, one button of black colour of which the centre part was of blue colour, one ladies purse which was lying on the floor of the bed room after having been pulled inside out, one plastic container meant for keeping ornaments on which the name of shop "ajay Kumar Shah" was printed, one container containing some coins, one case for keeping wrist watch, the covers of mattress and quilt found in the bedding of Deepak, one cover of the pillow which was lying near the head of the dead body of Jyoti Dubey and one cover of the pillow which was lying on the bed on which the dead-body of Deepak was lying, were seized as per seizure memo (Ex. P/11 ). ( 20 ) ON the basis of information given by the neighbours and the relatives of Anuj Prasad Dubey (PW/9) accused Mukund Mishra was apprehended late in the night intervening 18th and 19th January, 1994. On 19-1-1994, accused Mukund Mishra was taken under custody and was interrogated at 1. 45 p. m. on the same date in presence of witnesses Shri Sohanlal Dixit (PW/1) and Sarju Prasad Pandey. Mukund Mishra disclosed at Panchawati Colony, Rajkishore Nagar, Bilaspur, in presence of the said witnesses that he had kept one currency note of Rs. 500/- and two currency notes of Rs. 10/- each under the cover of the seat of his cycle and had kept one thin silver Payal, one heavier silver Payal, one silver chain having a locket, one golden nose ring, one golden ear-tops, one golden earring, other golden earring; one golden ear LATKAN, half piece of a golden necklace containing five golden lockets of the shape of raw-mango, half piece of one locket, one ladies wrist watch, under the mattress of the bedding placed in his house after keeping the said ornaments in a polythene packet. He also discovered that he had also kept one knife below the mattress. He also discovered that he had also kept one knife below the mattress. He further discovered that he had kept the coir-string below the seat of his cycle. He also told Shri R. K. Rai (PW/ 11) that he had hung one shirt, one pant and one woolen jacket in the nails fixed in the wall of his house. The said discovery made by Mukund Mishra was recorded by Shri R. K. Rai as per discovery memo (Ex. P/12 ). ( 21 ) IN the same night on which Mukund Mishra was apprehended, accused Deva was also apprehended. After interrogating Mukund Mishra, accused Deva was also interrogated in presence of the same witnesses. Accused Deva discovered that he had kept one currency note of Rs. 500/- denomination, one currency note of Rs. 50/- denomination, two currency notes of Rs. 2/- denomination towards the rear side of a photo hung in the wall of his house. He further discovered that he had kept in a polythene packet one golden latkan (locket), half piece of one golden locket, one small golden top, one golden earring, half part of a golden necklace containing five lockets of the shape of raw-mango, one golden earring, one thin silver payal, one heavier silver payal in which silver bells were attached, one broken silver mangalsootra having black beads threaded in a silver wire, one golden NATH and one ladies wrist watch and had kept the said polythene pocket under the earth of the earthen floor of one corner of the room of his house. He further discovered that he had kept one Bhujali (dagger) below the mattress of the bedding placed in the cot in the room of his house. He further told Shri R. K. Rai (PW/11) that he had hung his clothes on the wire fixed in his house. He also told Shri R. K. Rai that his cycle was there in the court-yard of his house. The discovery made by Deva was got recorded by Shri, R. K. Rai as per discovery memo (Ex. P/13 ). ( 22 ) AFTER getting the said discovery memos recorded (Ex. F12 and Ex. P/13),. Shri. R. K. Rai along with police force and witnesses Sohanlal Dixit (PW/1)and Sarju Prasad Pande went to the house shown by Mukund Mishra which house was situated in Chanteedeeh Ward of Bilaspur town. P/13 ). ( 22 ) AFTER getting the said discovery memos recorded (Ex. F12 and Ex. P/13),. Shri. R. K. Rai along with police force and witnesses Sohanlal Dixit (PW/1)and Sarju Prasad Pande went to the house shown by Mukund Mishra which house was situated in Chanteedeeh Ward of Bilaspur town. Accused Mukund Mishra took out one polythene packet from below the mattress of the bedding which was placed on a cot in the room of the said house. It contained one thin silver payal, one heavier silver payal containing silver bells, one silver chain having a locket, one golden nose-ring, one golden ear-tops, one golden earring, other golden earring, one golden 1atkan, half piece of one golden necklace containing five lockets of the shape of raw-mango, half part of a golden locket and one ladies wrist watch. He also produced from below the mattress of the said bedding a knife having a spring. The blade of the said knife was having a length of six inches and its breadth was one inch and a quarter. The blade of the said knife was having blood like stains. ( 23 ) ACCUSED Mukund Mishra took out three clothes from the nail which was fixed on the wall of his house. Out of the said clothes one was safari suit. There was a woollen sweater which was like a jacket in which there were six places for stitching buttons. However, two upper buttons of the said woollen sweater were found missing. The broken part of threads were found attached at the places from where two buttons were broken away. Four buttons were found stitched on the said jacket. On all of the said three clothes there were blood like stains. One cycle manufactured by Atlas Company was found kept in the house. Below the cover of the seat, one currency note of Rs. 500/- denomination and two currency notes of Rs. 10/- denomination were found kept. A string or rope of coir was also found kept below the seat of the said cycle. All of the said articles were seized as per seizure memo (Ex. P/ 14 ). ( 24 ) AFTER seizing the said articles from the said house shown by accused Mukund Mishra, all of the said persons went alongwith Deva alias Devkumar to the house situated in the same ward known as Chanteedeeh at Bilaspur. All of the said articles were seized as per seizure memo (Ex. P/ 14 ). ( 24 ) AFTER seizing the said articles from the said house shown by accused Mukund Mishra, all of the said persons went alongwith Deva alias Devkumar to the house situated in the same ward known as Chanteedeeh at Bilaspur. There accused Deva took out a currency note of Rs. 500/-, another currency note of Rs. 50/-, two currency notes of Rs. 2/- each from the rear side of the frame of the photo hung in the wall of the said house. Accused Deva removed the earth from the corner of the floor of his house and took out one polythene packet from below the said earth. The said polythene packet contained one golden earring (Latkan), one piece of golden locket, one small golden top, one golden earring (Bala), half piece of a golden necklace containing five lockets of the shape of raw-mango, one golden earring (Jhumka), one thin silver payal, one heavier silver payal in which silver bells were attached, one broken mangal-sootra in which black beads were threaded in silver wire, one golden nose-ring (Nath) and one ladies wrist watch. ( 25 ) HE also produced one dagger (Bhujali) of the shape of meat-cutter, the blade of which was having blood like stains from below the mattress of the bedding which was placed on a cot kept in the room of the said house. Accused Deva further produced clothes which were hanging on the wire which was hung and fixed in the said house. Out of the said clothes, there was one full pant of Jeans of blue colour, which was stained with blood like stains at many places, one cotton full-sleeve T-shirt, which was stained with blood like stains at many places. One old and used cycle manufactured by Atlas Company was also found kept in the court-yard of the said house. The said articles were seized as per seizure memo (Ex. P/15 ). ( 26 ) AFTER conduction of death inquest, dead bodies of Smt. Sarita Dubey, Deepak Dubey and Ku. Jyoti Dubey were sent to Government District Hospital, Bilaspur, where the autopsy was conducted by a team of Doctors consisting of Dr. Shri S. K. Chandel (PW/3), Dr. A. P. Rai (PW/4) and Dr. Smt. Nilima Ghatge (PW/5 ). The said Drs. ( 26 ) AFTER conduction of death inquest, dead bodies of Smt. Sarita Dubey, Deepak Dubey and Ku. Jyoti Dubey were sent to Government District Hospital, Bilaspur, where the autopsy was conducted by a team of Doctors consisting of Dr. Shri S. K. Chandel (PW/3), Dr. A. P. Rai (PW/4) and Dr. Smt. Nilima Ghatge (PW/5 ). The said Drs. found ligature marks on the wrists and the lower part of legs of Smt. Sarita Dubey. There was a deep and wide wound on the neck of Smt. Sarita Dubey. The said wound was eight inches long and one and a half inch wide. Larynx, Muscles, oesophagus and all the vessels of the neck were found cut. Vertebra of the neck was having a cut mark. A slide was prepared from the Vaginal discharge of Smt. Sarita Dubey, at the time of conduction of said post-mortem examination. The report of the said post-mortem examination of the dead body of Smt. Sarita Dubey is (Ex. P/19 ). ( 27 ) ON conducting autopsy on the dead-body of Deepak his neck was also found cut. The report of post-mortem examination of the said dead body is (Ex. P/21 ). Autopsy on the dead-body of Ku. Jyoti Dubey was also conducted and it was found that her death was also homicidal on account of throttling. The report of conduction of autopsy on the dead body of Ku. Jyoti Dubey is (Ex. P/23 ). ( 28 ) AFTER seizure of the dagger having a spring (from accused Mukund Mishra) and Bhujali (from accused Deva) the said daggers were sent to the team of Doctors consisting Dr. S. K. Chandel (PW/3, Dr. A. P. Rai (PW/4) and Dr. Smt. Nilima Ghatge (PW/ 5 ). In the opinion of Dr. S. K. Chandel, the injuries found on the dead bodies of Smt. Sarita Dubey and Deepak Dubeycould have been caused by the said daggers. ( 29 ) ON 19-1-1994, the nails of the hands of both of the accused were cut by Ashok Shrivas (PW/12) and were seized as per seizure memos (Ex. P/28-A) and (Ex. P/29) respectively. ( 30 ) ON 20-1-1994, both of the accused were sent for medical examination and were medically examined by Dr. R. J. P. Verma (PW/2 ). Dr. P/28-A) and (Ex. P/29) respectively. ( 30 ) ON 20-1-1994, both of the accused were sent for medical examination and were medically examined by Dr. R. J. P. Verma (PW/2 ). Dr. R. J. P. Verma found as many as 12 injuries on the person of accused Deva out of which injuries No. 1 to 11 could have been caused within 36 hours to 72 hours. The injuries No. 1, 2, 5, 6 and 7 could have been caused by teeth bite. Injury No. 8 could have been caused by scratching by human nail. Injury No. 12 could have been caused by hard and blunt object within 24 hours of medical examination of Deva. ( 31 ) DOCTOR Verma further found two abrasions on the person of Mukund Mishra which could have been caused within 36 to 72 hours. The said injuries could have been caused by some hard and blunt object and were situated on the front side of elbow of left arm. In the opinion of Dr. Verma (PW/2), the said injuries could have been caused in resistence put-forth by the victim while defending him or herself. ( 32 ) SHRI Anuj Prasad Dubey (PW/9) had come to Bilaspur for meeting his wife and children on 27-12-1993 and had left Bilaspur for Bombay on 2-1-1994. While going to Bombay, Shri Anuj Prasad Dubey had given two currency notes of 500/- denomination, one currency note of Rs. 50/- denomination, two currency notes of Rs. 10/- denomination and two currency notes of Rs. 2/- denomination. Apart from the said currency notes Smt. Sarita Dubey was having Rs. 3,000/- in cash. ( 33 ) INFORMATION was given to Shri Anuj Prasad Dubey on 18-1-1994 that his wife was seriously ill and therefore he should come to Bilaspur by Aeroplane from Bombay. However, since the last flight from Bombay to Raipur had already left Bombay therefore Shri Anuj Prasad Dubey boarded train on 19-1-1994 and reached Bilaspur on 20-1-1994. ( 34 ) IDENTIFICATION proceedings of the ornaments seized from the possession of the accused was conducted by Shri S. S. Sisodiya (PW/16 ). In the said identification proceedings Shri Anuj Prasad Dubey (PW/9), Smt. Shailja Singh (PW/8), Ku. Shraddha Dixit (PW/6) correctly identified the said ornaments as belonging to Smt. Sarita Dubey. ( 35 ) THE articles found to be stained with blood like stains were sent to Forensic Science Laboratory, Sagar. In the said identification proceedings Shri Anuj Prasad Dubey (PW/9), Smt. Shailja Singh (PW/8), Ku. Shraddha Dixit (PW/6) correctly identified the said ornaments as belonging to Smt. Sarita Dubey. ( 35 ) THE articles found to be stained with blood like stains were sent to Forensic Science Laboratory, Sagar. As per report (Ex. P/38), blood was found on the knife, shirt and full pant seized from the possession of Mukund Mishra. Blood was also found present in Bhujali (Article L ). Blood was further found on the nail cuttings of the hands of accused Mukund Mishra and accused Deva alias Dev Kumar. Blood was further found on half woollen sweater seized from accused Mukund Mishra. ( 36 ) ON comparing the button, seized from the spot and the buttons which were stitched on the sweater seized from accused Mukund Mishra, it was found that the said buttons were similar in physical qualities. It was further found by the Chemical Examiner that the two pieces of the locket alleged to have been seized from each of the said two accused were the pieces of one and the same locket. The report of the Chemical Examiner in this regard is (Ex. P/39 ). ( 37 ) REPORT of Serologist was not produced by the Prosecuting Agency during the trial of the case. ( 38 ) AFTER completion of investigation, a report under S. 173, Cr. P. C. was filed. The accused denied the said allegations and pleaded not guilty. Both of the accused have stated that they had sustained injuries as they were beaten by the police. ( 39 ) AFTER recording evidence in the case, the trial Court held that the accused (Sic) is guilty and sentenced them as detailed above. ( 40 ) IT has been argued for the accused that the evidence pertaining to recovery of the ornaments from possession of the accused is doubtful. It could not be established that the said ornaments were recovered at the instance of and from the possession of the accused. Further it could not be established that the said ornaments belonged to Smt. Sarita Dubey. Identification convened regarding the said ornaments was conducted after unexplained delay and the said proceeding is irregular. The testimony given by Ku. Shraddha Dixit (PW/6) regarding the time and place at which, and, where, the said identification proceeding was convened is discrepant. Further it could not be established that the said ornaments belonged to Smt. Sarita Dubey. Identification convened regarding the said ornaments was conducted after unexplained delay and the said proceeding is irregular. The testimony given by Ku. Shraddha Dixit (PW/6) regarding the time and place at which, and, where, the said identification proceeding was convened is discrepant. Looking to the delay in convening the said identification proceeding the probability exists that the said ornaments were shown to the witnesses, prior to the identification proceeding being convened. Sufficient number of ornaments were not mixed with the said ornaments and wrist watches. Further the wrist watches which were mixed with the seized wrist watches were not of the same manufacturing company. Ku. Shraddha Dixit has further stated that it was she who had first gone for identifying the ornaments while according to the memo of identification proceeding, it was Anuj Prasad Dubey, whohad allegedly first identified the said ornaments. It is not known as to how police laid hands on the accused. Smt. Shailja Singh (PW/8) has deposed that she did not know the accused from before. Though she had seen relatives of Smt. Sarita Dubey visiting her house but she did not know either of the said relatives. Investigating Officer had deposed that in para No. 25 of his statement that he could know from Smt. Shailja Singh and Ku. Shraddha Dixit as well as Awdhesh Kumar Singh that accused Mukund Mishra used to visit the house of Smt. Sarita Dubey. However, the said witnesses have not given the statement to the said effect. Thus, it is not known as to how the police could apprehend or lay hands on them. ( 41 ) THE ornaments said to have been looted are not of considerable value and therefore, it does not appear to be natural that such ghastly crime would be committed for committing robbery of such ornaments which were not of considerable value. ( 42 ) THE accused have explained that they had sustained injuries on account of the fact that the police had beaten them. They were apprehended in the late hours of night intervening 18th and 19th of January 1994. However, the memo under S. 27 of the Evidence Act pertaining to the discovery made by accused Mukund Mishra (Ex. P/12) was recorded at 1-45 p. m. and memo (Ex. They were apprehended in the late hours of night intervening 18th and 19th of January 1994. However, the memo under S. 27 of the Evidence Act pertaining to the discovery made by accused Mukund Mishra (Ex. P/12) was recorded at 1-45 p. m. and memo (Ex. P/13) pertaining; to accused Deva was recorded at 2-05 p. m. No explanation is available as to why the said memos could not be recorded, soon after the accused having been apprehended. It has also to be seen that the accused did not abscond, and, appeared before the Police Officials when they were summoned to appear before them. ( 43 ) AS the report of Serologist was not produced by the Prosecuting Agency, it could not be established that the blood alleged to have been found on the clothes of Mukund Mishra and daggers alleged to have been seized from both of the accused was of human origin. Therefore the said circumstance is of no help to the prosecution. ( 44 ) IT could also not be established that Smt. Sarita Dubey was wearing ornaments on the date of incident. It has further been argued that the Milk vender, the Bangle seller, Sarju Prasad Pande and Kamal Prasad Soni were the material witnesses in the present case. They have not been examined by the prosecution and hence adverse inference should be drawn against the prosecution. Regarding seizure of the incriminating articles neighbours of the house of the accused were not called at the time of the said seizure and therefore, there is non-compliance of S. 104 of the Cr. P. C. Due to non-compliance of the said provision, the evidentiary value of the alleged seizure is considerably minimised. ( 45 ) IT has further been argued, in the alternative, for the accused-appellants that though not conceding that it could be established that the ornaments stolen from the house of Smt. Sarita Dubey were recovered at the instance of and from the possession of the accused, yet if the Court comes to a conclusion that the said fact has been established, even then the offence would not traverse beyond the limits of an offence punishable under S. 411 or at worst an offence punishable under S. 380 of the IPC. ( 46 ) IN reply the learned Deputy Advocate General fully supported the finding given and sentence awarded to the accused. ( 46 ) IN reply the learned Deputy Advocate General fully supported the finding given and sentence awarded to the accused. ( 47 ) FROM the testimony given by Shri Sohanlal Dixit (PW/1), Ku. Shraddha Dixit (PW/6), Dr. Awdhesh Kumar Singh (P:w/7), Smt. Shailja Singh (PW/8), Shri R. K. Rai (PW/11) and the medical evidence given by Dr. S. K. Chandel (PW/3) supported by the testimony given by Dr. A. P. Rai (PW/ 4) and Dr. Smt. Nilima Ghatge (PW/5) it is fully established that Smt. Sarita Dubey, her daughter Ku. Jyoti Dubey, and her son Deepak Dubey were done to death and they met with homicidal deaths. It is also established from the evidence available on record that ornaments and looted cash also were either stolen or robbed and looted from the house of Smt. Sarita Dubey. Therefore, the main point for determination in the present case is and was as to whether the prosecution has succeeded in establishing beyond any reasonable doubt that it were the accused and the accused alone, who committed the said offences. ( 48 ) FOR connecting the said offences with accused Mukund Mishra, the prosecution has relied upon the following circumstances: - (a) Mukund Mishra used to remain indebted and was always found to be short of funds. (b) He was related to Smt. Sarita Dubey, as he happens to be the son-in-law of the cousin of Anuj Prasad Dubey. (c) He being related to Smt. Sarita Dubey , as being the husband of niece of Anuj Prasad Dubey, he was in visiting terms and used to visit the house of Smt. Sarita Dubey even in absence of her husband. (d) Smt. Sarita Dubey was very conscious about her own safety and security and the safety and security of her children. Therefore, she used to lock the channel gate fixed in the compound wall of her house, in the early hours of night. On the date of the incident also she had locked the said gate. (e) From the testimony pertaining to the situation and the condition of the spot as well as from the testimony given by Smt. Shailja Singh (PW/8), it is fully established that, who so ever entered in the house of Smt. Sarita Dubey did not force his entry inside her house but was allowed to enter it. (e) From the testimony pertaining to the situation and the condition of the spot as well as from the testimony given by Smt. Shailja Singh (PW/8), it is fully established that, who so ever entered in the house of Smt. Sarita Dubey did not force his entry inside her house but was allowed to enter it. Therefore, any such person who was known to Smt. Sarita Dubey from before and who used to visit her house only could have and must have entered the said house. (f) A button was found lying on the spot. The colour, design and physical quality of the said button was same as the remaining buttons found stitched in the woollen sweater (jacket) seized from the possession of accused Mukund Mishra. In the said woollen sweater (jacket) two buttons which were stitched on its upper side were found missing. (g) Soon after the incident, almost the entire looted property that is ornaments belonging to Smt. Sarita Dubey were recovered at the instance of and from the possession of the accused-appellant Mukund Mishra and the co-accused Deva. (h) The clothes seized from the possession of accused Mukund Mishra as well as the dagger having a spring seized from him as well as cuttings of his nails were found to be stained with blood. (However, since the report of Serologist has not been produced in the present case, this circumstance is of no assistance to the prosecution and would not be taken into consideration ). (i) Injuries were found on the person of accused Mukund Mishra and according to the Doctor, the said injuries could also have been caused by the victim of the incident in his or her self-defence. The circumstances appearing against accused Deva are as follows: (A) Two persons were seen in the vicinity, soon before the incident, by Smt. Shailja Singh (PW/8 ). Out of the said two persons, she had seen that one person was taking his cycle inside the house of Smt. Sarita Dubey and the other person was standing alone with a cycle, nearby. (B) The incident, by itself is indicative of the fact that the said crime was committed by more than one person and it is more likely that it was committed by two persons. (C) Injuries were found on the person of this accused which could have been caused by teeth bite and also by human nails. (B) The incident, by itself is indicative of the fact that the said crime was committed by more than one person and it is more likely that it was committed by two persons. (C) Injuries were found on the person of this accused which could have been caused by teeth bite and also by human nails. The accused has failed to give any cogent explanation as to how such injuries which could have been caused by teeth bite and human nails were found on his person. (D) The scene of occurrence goes to establish that murder of the said three persons was committed with the motive of looting the property and the property was looted just after committing the murder of the said three persons. (E) Soon after the incident, almost the entire property looted from the house of Smt. Sarita Dubey was recovered from this accused and accused Mukund Mishra. (F) The manner in which the said looted property was distributed between the two persons is also indicative of the fact that both of them had jointly participated in commission of the said crime. (G) Blood was found on Bhujali seized from him and also on the cuttings of his nails. (However, since the report of Serologist has not been produced, this circumstance is not of conclusive nature and shall not be taken into consideration ). ( 49 ) PERTAINING to the arguments advanced for the accused that it is not known as to how the Investigating Agency laid hands upon the accused, it has to be seen that Investigating Officer Shri R. K. Rai (PW/ 11 ) has deposed in Para No. 7 of his deposition that when an information was given by the neighbours that Smt. Sarita Dubey was very conscious about her security and did not use to open the door of her house unless she used to call her neighbours, he inferred that the person entering the house of Smt. Sarita Dubey must be a person who should either be related to Smt. Sarita Dubey or must have been known to her. Thereupon, he enquired from the relatives of Smt. Sarita Dubey and on such enquiry, he could lay hand upon accused Mukund Mishra. Thereupon, he enquired from the relatives of Smt. Sarita Dubey and on such enquiry, he could lay hand upon accused Mukund Mishra. Thus, the testimony given by Shri R. K. Rai (P. W. / 11) in para No. 7 and Para No. 25 of his deposition, has to be read together and not divorced from each other. ( 50 ) SMT. Shailja Singh (PW/8) has deposed in Para No. 4 of her statement that Smt. Sarita Dubey used to tell her that the son-in-law of the elder brother of her husband used to come to her house and used to borrow amount. She has not been confronted with her diary statement in this regard and this goes to indicate that her statement is consistent. Therefore, though Smt. Shailja Singh (PW/8) might not have herself seen accused Mukund Mishra, yet she knew from the version given by Smt. Sarita Dubey that the son-in-law of Santosh Dubey used to come to the house of Smt. Sarita Dubey and used to obtain loan from her. On the said information given by Smt. Shailja Singh (PW/8), Shri R. K. Rai (P W/ 11) could have had enquired and could have received information as to who this son-in-law of Santosh Dubey was and where the said son- in-law of Santosh Dubeywas residing. It has to be seen that soon after witnessing the incident, Santosh Dubey was informed by Dr. Awdhesh Kumar Singh and was called in the said house. That is how police could know about the fact that Mukund Mishra was related to Smt. Sarita Dubey and used to visit her house. This also explains as to how the police could have known about the other person that is accused Deva (Alias Dev Kumar ). . ( 51 ) WE fully rely upon the testimony given by independent witness Shri Sohanlal Dixit (PW 1) supported by the testimony given by Investigating Officer, Shri R. K. Rai (PW/11) and hold that on being interrogated, both of the accused-appellants discovered as per memos (Ex. P/12 and Ex. P/13) that they had kept certain ornaments and other articles in the places described in the said memos. P/12 and Ex. P/13) that they had kept certain ornaments and other articles in the places described in the said memos. ( 52 ) REGARDING the criticism that there were no special identification marks on the ornaments of Smt. Sarita Dubey, it has to be seen that the identification of articles by owners or the persons who have the opportunity to see them very often, cannot be discarded merely on the ground that no special identification marks were there on the said ornaments. It is so because such persons can identify the articles by feel, touch or various points of difference distinguishing one thing from the other of the same kind, though they may not be able to formulate the reasons, as such identification is based on the untranslatable impressions of their minds. ( 53 ) THEREFORE, the arguments that the testimony given by Anuj Prasad Dubey (PW/9), Smt. Shailja Singh (PW/8) and Ku. Shraddha Dixit. (PW/6) is unreliable pertaining to the identification of the said ornaments of Smt. Sarita Dubey is simply unacceptable due to the said reasons. It has also to be borne in mind that though it was suggested in the cross examination of Ajay Kumar Shah (PW/10) that the ornaments seized from the possession of Deva/dev Kumar were purchased by his family members from the said shop (which suggestion has been denied by the said witness), yet in his statement Deva alias Dev Kumar did not claim the said articles to be belonging to him. On the other hand he has taken a plea that no such ornaments were seized from his possession. Therefore, we are of the opinion that the trial Court has not committed any error in accepting the testimony given by Anuj Prasad Dubey (PW/9) Smt. Shailja Singh (PW/8) and Ku. Shraddha Dixit (PW/ 6) that the said ornaments were the ornaments of Smt. Sarita Dubey. ( 54 ) THE alleged discrepancies pointed out in the testimony given by Ku. Shraddha Dixit and Naib Tahsildar Shri S. S. Sisodiya (PW/ 16) are absolutely immaterial and are reconcilable. In para No. 13 of her statement Ku. Shraddha Dixit (PW/ 6) that the said ornaments were the ornaments of Smt. Sarita Dubey. ( 54 ) THE alleged discrepancies pointed out in the testimony given by Ku. Shraddha Dixit and Naib Tahsildar Shri S. S. Sisodiya (PW/ 16) are absolutely immaterial and are reconcilable. In para No. 13 of her statement Ku. Shraddha Dixit has deposed that identification proceeding was convened during the time in between 1-00 p. m. to 3-00 p. m. In para No. 15 of her statement at Sheet No. 5 of her deposition, she has categorically stated that, she has deposed about the said time of identification proceeding taking place between 1. 00 p. m. to 3-00 p. m. only on the basis of her approximate estimation. Therefore, if actually the identification proceeding took place between 3-30 p. m. to 6-00 p. m. (Please see para No. 3 of the statement given by Shri S. S. Sisodiya), it cannot be said that there is any material discrepancy in the statement given by Ku. Sharaddha Dixit (PW/ 6) and Shri S. S. Sisodiya (PW/16 ). ( 55 ) KUMARI Shraddha Dixit (PW/6) has deposed that the identification proceeding had taken place at Raj-Kishore Nagar near the place of the incident in an open ground. Shri Sisodiya has deposed that the said identification proceeding was convened in Raj Kishore Nagar Panchwati Colony, near the place of the incident, in a house which was under construction. Therefore, the house was not constructed and Kumari Shraddha Dixit could have formed an impression that the place where identification proceeding was convened, was an open plot. Therefore, this alleged discrepancy also is immaterial and also reconcilable. ( 56 ) ACCORDING to Ku. Shraddha Dixit (PW/6) she went first for identifying the ornaments while according to Shri S. S. Sisodiya (PW/ 16), the said ornaments were first identified by Anuj Prasad Dubey (PW/9 ). In this regard, it has to be seen that for the purpose of identifying the said articles, every witness has to be called separately and therefore, it is quite probable that Ku. Shraddha Dixit could not know that Anuj Prasad Dubey had already participated in the identification proceeding. In this regard, it has to be seen that for the purpose of identifying the said articles, every witness has to be called separately and therefore, it is quite probable that Ku. Shraddha Dixit could not know that Anuj Prasad Dubey had already participated in the identification proceeding. Thus the alleged discrepancies appearing in the testimony given by Shraddha Dixit (PW/6) are not materials and do not render the said wholly reliable testimony given either by her or other witnesses on the said point, that is, Shri S. S. Sisodiya (PW/16), Anuj Prasad Dubey (PW/9) and Smt. Shailja Singh (PW/ 8), as unworthy of credence. ( 57 ) AS has already been mentioned that the accused have not given any explanation as to how they came into possession of the said ornaments. ( 58 ) NOW from the fact that the mouth of Smt. Sarita Dubey was gagged, her arms were tied towards her back and her legs were also tied, it is established that Smt. Sarita Dubey had used everyounce of her energy in saving her own life and life of her children and had put up a great resistence when she was being made incapable of resisting. The scene of occurrence goes to positively indicate that soon after the said three murders, the property belonging to Smt. Sarita Dubey was looted. Thus, both of the said offences were simultaneous. Looking to the said scene of occurrence, it would be unreal to assume that the said three persons were killed for nothing by some unknown persons and thereafter these two accused entered the said house and committed theft of the said ornaments. ( 59 ) IN the light of these established facts now it has to be seen as to what presumption can be drawn from the fact of very early recovery of the robbed and looted articles, from the possession of the accused. In this regard, it has to be seen that which presumption arises in a particular case is ultimately a question of fact depending on the facts and circumstances found and established in that case. In this regard, it has to be seen that which presumption arises in a particular case is ultimately a question of fact depending on the facts and circumstances found and established in that case. However, the principles to be applied in drawing the presumption have been laid down by their Lordships of the Supreme Court in Shivappa v. State of Mysore, 1971 Cri LJ 260: ( AIR 1971 SC 196 ) as follows (para 5) :-"if there is other evidence to connect an accused with the crime itself, however small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime. There is then no question of presumption. The evidence strengthens the other evidence already against him. It is only when the accused cannot be connected with crime except by reason of possession of the fruits of crime that the presumption may be drawn""in what circumstances the one presumption or the other may be drawn, cannot be categorically described. It all depends upon the circumstances under which the discovery of the fruits of crime are made with a particular accused. It has been stated on more than one occasion that if the gap of time is two large, the presumption that the accused was concerned with the crime it self gets weakened. The presumption is stronger when the discovery of the fruits of crime is made immediately after the crime is committed. The reason for the same is obvious. " ( 60 ) RELYING on this authority of the Apex Court it was observed as below in, a leading authority on this aspect, of our own High Court which has been reported in (The State of Madhya Pradesh v. Murarilal, 1973 Cri LJ 1559) (para 32) :-"thus, it is obvious that where the only circumstance proved against the accused is the possession of stolen property and the time gap is sufficient to suggest the possibility of the property having been disposed of to receivers, then the only presumption would be that the accused are mere receivers of stolen property. However, if in addition to the finding of stolen property there is other evidence, howsoever small, to connect an accused with the crime itself, then there is no question of presumption alone, since this evidence strengthens the other evidence already against him. However, if in addition to the finding of stolen property there is other evidence, howsoever small, to connect an accused with the crime itself, then there is no question of presumption alone, since this evidence strengthens the other evidence already against him. " ( 61 ) IN the present case, the discovery was made within 30 hours of the incident taking place. There is other corroborative evidence also in the present case. ( 62 ) FROM the testimony given by Anuj Prasad Dubey (PW/9), it is established that accused Mukund Mishra had obtained loan of Rs. 10,000/- from him and had failed to repay it. He was always in need of money and used to pester him for advancing loan. Being the husband of niece of Anuj Prasad Dubey, he was visiting the house of Smt. Sarita Dubey. Therefore, he could have been permitted to enter the house in the night intervening 17th and 18th of January,1994. ( 63 ) FROM the testimony given by Smt. Shailja Singh (PW/8), it is fully established that Smt. Sarita Dubey had already locked the gate at about 6-30 p. m. but at about 7-00 or 7-30 p. m. she saw that one person having a cycle was entering the house of Smt. Sarita Dubey and the other person also having a cycle was standing near the gate of the house of Smt. Sarita Dubey. ( 64 ) INJURIES were found on the person of accused Deva alias Dev Kumar which could have been caused by teeth bite and by human nails. Accused Deva has failed to explain as to how he sustained such injuries which could have been caused by teeth bite or human nails. ( 65 ) REASON for not committing robbery only but also committing murders of the said three persons are obvious. Smt. Sarita Dubey had put forth great resistence when either she was going to be incapacitated when an attempt was made to rob her. Smt. Sarita Dubey as well as her children knew Mukund Mishra from before and therefore for destroying the evidence of the accused having been identified, all of the three persons were done to death. Smt. Sarita Dubey had put forth great resistence when either she was going to be incapacitated when an attempt was made to rob her. Smt. Sarita Dubey as well as her children knew Mukund Mishra from before and therefore for destroying the evidence of the accused having been identified, all of the three persons were done to death. This circumstance is also suggestive of the fact that the person or persons committing the said offences were known to all of the victims of the incident, ( 66 ) IT has to be seen that broken piece of Mangalsootra belonging to Smt. Sarita Dubey wasfound on and seized from the place of the incident as per memo (Ex. P/11) which fact has been proved by Awdhesh Kumar Singh (PW/7) and Shri R. K. Rai (PW/11 ). A broken Mangal-sootra (Article F/9) was found in possession of accused Deva and was seized as per seizure memo (Ex. P/15) proved by Shri Sohanlal Dixit (PW/l ) and Shri R. K. Rai (PW/11 ). The said broken Mangal-sootra has been identified as belonging to Smt. Sarita Dubey, by her husband Anju Prasad Dubey (PW/9), Smt. Shailja Singh (PW/8) and Ku. Shraddha Dixit (PW/6 ). This goes to indicate that robbery was committed in the same transaction in which murders of the said three persons were committed. This circumstance further establishes complicity of accused Deva. ( 67 ) A button was found lying at the place of the incident as per testimony given by Shri Sohanlal Dixit (PW/1), Dr. Awdhesh Kumar Singh (PW/7) and Shri R. K. Rai (PW 11), which also was seized as per memo (Ex. P/11 ). From the testimony given by Shri Sohanlal Dixit and Shri R. K. Rai it is established that a sweater (jacket) (Article-E/12-B) was seized from accused Mukund Mishra as per seizure memo (Ex. P/14 ). Two buttons on upper side of the said sweater (Article -E/12-B) were found missing. The button found on the spot and the remaining buttons stitched in the said sweater were of the same physical qualities as per report (Ex. P/39) of the Chemical Examiner. P/14 ). Two buttons on upper side of the said sweater (Article -E/12-B) were found missing. The button found on the spot and the remaining buttons stitched in the said sweater were of the same physical qualities as per report (Ex. P/39) of the Chemical Examiner. This evidence not only goes to indicate presence of accused Mukund Mishra at the place of the incident but is also indicative of the fact that resistance was put-forth by Smt. Sarita Dubey, while the Criminal Act of gagging and incapacitating her was being committed by accused Mukund Mishra. ( 68 ) THE facts of Hukum Singh v. State of Rajasthan AIR 1977 SC 1063 : (1973 Cri LJ 639), where the articles stolen from the house of the persons who were murdered were recovered from the possession of the accused within 24 hours are quite different. ( 69 ) ACCORDING to the facts reported in the cited authority, it was quite probable; that after commission of murders of the four persons, a packet containing ornaments belonging to the murdered person, was stolen by the accused-appellant after the said murders had been committed by some other person or persons. It has to be seen that as per facts reported in the above referred authority Hukum Singh v. State of Rajasthan case (supra) the scene of occurrence was a hutment in a pasture land belonging to the Government between the villages of Palasni and Kharia Kharia Khurd in Jodhpur District. One Sujan Singh had left the said hutment on 19th October, 1967 for another village to bring his daughter and he was away from his hutment until 22nd October, 1967. Kan Singh left the hutment for going to Bimalpur for purchase of Bajra on 21st October, 1967. He returned to the hutment in the morning on 22nd October, 1967. He found four persons were shot-dead in the said hutment and he also saw a box lying out-side the room. He also found that the shutters of the door of the room were unhinged and were lying inside the room. There was no evidence to indicate that inmates of the house had put-forth any resistance before being gunned down. No injuries were found on the person of the accused. He also found that the shutters of the door of the room were unhinged and were lying inside the room. There was no evidence to indicate that inmates of the house had put-forth any resistance before being gunned down. No injuries were found on the person of the accused. ( 70 ) UNDER the said circumstances, it was held in the said authority that it was probable that the incident of murder had taken place prior to the accused committing theft. Such is not the case there and the facts of these two cases are quite distinguishable. In view of the reasonings which have already been mentioned, it is fully established in the present case that robbery was coupled with murder of the said three persons and the only irresistable conclusion which can be drawn from the scene of occurrance is that the culprits who had committed robbery of the said ornaments had also committed murders of the said three persons. ( 71 ) THE arguments that the ornaments which were looted or were found in possession of the accused were not of considerable value is not of much help to the accused-appellants. Firstly, it cannot be said that the ornaments recovered from the accused were not of considerable value. Secondly, it has to be seen that Anuj Prasad Dubey (PW/9) was doing construction work at Bombay. Mukund Mishra being relative was in know of this fact and had in fact obtained a loan of Rs. 10,000/- from Anuj Prasad Dubey about 7 or 8 months prior to the date of the incident. Therefore, the probability is that Mukund Mishra thought and considered that there would be considerable amount in cash and in the shape of ornaments in the almirah placed in the bedroom of the house of Anuj Prasad Dubey which almirah was broken by the culprits while committing the said offences. Under the said circumstances, even it be considered that the value of the articles recovered from the accused was not that much as was expected, the said aspect is inconsequential. Under the said circumstances, even it be considered that the value of the articles recovered from the accused was not that much as was expected, the said aspect is inconsequential. ( 72 ) REGARDING complicity of accused Deva, it has to be seen that the manner in which the articles were distributed between Mukund Mishra and him goes to indicate that every article which was in pair was distributed one each in between them and the article which was only one, was broken into two pieces andhalf was kept by Mukund Mishra and the remaining half was either given or remained with Deva alias Dev Kumar. (Please see report (Ex. P/39) of the chemical examiner and the testimony given by Shri Sohanlal Dixit (PW/1) and Shri R. K. Rai (PW/11) ). ( 73 ) IT is true that the Prosecuting Agency failed to produce the report of Serologist even after lapse of considerable period. The attitude of the prosecuting Agency in this regard was very callous and deserves to be depricated. Had the Presiding Officer of the trial Court concerned been an experienced Sessions Judge, he could have had compelled the learned Government Pleader to get the report of Serologist, produced and tendered under S. 293, Cr. P. C. (It seems that this Sessions Trial of triple murders was entrusted to an Additional Sessions Judge, who was promoted as an Additional Sessions Judge from the post of Chief Judicial Magistrate not much before the entrustment of the said case to him. Though the learned Judge of the trial Court has performed his duty very labouriously and sincerely yet the learned Sessions Judge ought to have had taken into consideration the fact that it was a case of ghastly murders of three persons coupled with robbery and therefore, it would have been desirable that the case was either tried by the learned Sessions Judge himself or by some more experienced Sessions Judge, who could have had dealt with the case in a more experienced manner ). ( 74 ) WE are many a times pained to see and to wonder as to why such a large State like Madhya Pradesh, a laboratory for examination of serum cannot be established in the State of Madhya Pradesh itself and the Prosecuting Agency of this State has to depend upon the over worked laboratory of serum examination at Calcutta, for the report of Serologist. In our opinion it is high time when such laboratory is established at some place in Madhya Pradesh itself and the strength of staff of Forensic Science Laboratory, Sagar is also increased so that scientific evidence may be adduced and may be available in these cases where it is possible to collect such evidence. ( 75 ) AS the case may be, even if the evidence of blood stains being found on the clothes of Mukund Mishra and the blood stains being found on the daggers recovered at the instance of both of the accused and the evidence of presence of blood in the nail cuttings of both of the accused is ignored, (and, which is being ignored, as report of Serologist has not been produced in the present case) even then the evidence mentioned above is sufficient to bring guilt home against the accused-appellants. ( 76 ) THE stainless steel glasses, having some finger prints were placed quite away from the scene of occurance and therefore, if the said glasses were either not sent for examination of finger prints or were sent for examination of finger prints, but were not found to be containing finger prints of the accused, it is simply inconsequential. ( 77 ) REGARDING conduct of the accused, it has to be seen that it is quite probable that the accused thought that they had obliterated evidence against them by killing all of the three victims and, therefore, did not consider it wise to abscond, lest it may give rise to suspicion against them. Therefore, on the basis of the said subsequent conduct of the accused, the incriminating evidence appearing against them cannot be brushed aside. ( 78 ) NON examination of the witnesses referred by the learned counsel for the appellants is simply inconsequential as they were either not material witnesses; or, other witness (or witnesses) on the same point had already been examined. Consequently, no adverse inference against the prosecution can be drawn on account of non-examination of such witnesses. ( 79 ) THESE authorities cited for the accused-appellants in which there was considerable or large gap of time between the date of commission of the offence and the date of recovery of the fruits of crime, are clearly distinguishable of facts from the present case. Therefore, such authorities have not been discussed in this judgment lest it may unnecessarily encumber it. Therefore, such authorities have not been discussed in this judgment lest it may unnecessarily encumber it. ( 80 ) IN the result, the appeals filed by the accused-appellants are disallowed. They are held guilty for committing an offence punishable under S. 449 of the IPC and are sentenced to undergo imprisonment for ten years. They are further held guilty for committing an offence punishable under S. 394 read with S. 397 of the IPC and are further sentenced to undergo rigorous imprisonment for ten years. They are further held guilty for committing each of the murders of Smt. Sarita Dubey, Ku. Jyoti Dubey and Deepak Dubey in furtherance of common intention formed by them. ( 81 ) IT is true that every murder is ghastly. Nevertheless it has to be seen that these two accused who are young persons of about 30 years and 25 years of age respectively did not think of doing some constructive work for earning their livelihood, or may be, for meeting their expenses. Instead they killed one helpless lady and the children in most cruel manner for committing robbery of the ornaments and cash kept in the house of Smt. Sarita Dubey. It has also to be seen that Mukund Mishra being a relative of Smt. Sarita Dubey enjoyed her confidence and taking undue advantage of the said situation committed a betrayal by bringing an associate of the same brand (as Mukund Mishra is) and committing such gruesome murders of the said helpless lady and two helpless children of four years and six years of age respectively. Thus, in view of the above circumstances, it is one of the rarest of rare cases, in which, only sentence, which, in our opinion, can be awarded, is, sentence of death. ( 82 ) THEREFORE, looking to the entirety of the circumstance, we confirm the death sentence awarded to each of them. Though both of the accused have been held guilty for committing each of the said three murders, in furtherance of common intention formed by them, yet, since death sentence has been awarded to each of the accused-appellants for committing offence punishable under S. 302 read with S. 34 of the IPC for committing murder of Smt. Sarita Dubey in furtherance of common intention formed by both of them, separate sentence for committing murders of Ku. Jyoti Dubey and Master Deepak Dubey is not being awarded to them. ( 83 ) IN view of the provisions contained in Sub-Sec. 5 of S. 354 of the CPC it is ordered that each of the said two accused be hanged by the neck till he is dead. ( 84 ) THE order passed by the trial Court regarding disposal of the articles produced in the said Court is maintained and confirmed. Appeal dismissed. .