Judgment :- Padmanabhan Nair, J. The first accused in S.C.35 of 2002 on the file of V Additional Sessions Judge, Ernakulam has filed this appeal challenging the conviction and sentence imposed on him in the above said Sessions Case. 2. The appellant along with one Jose were chargesheeted by the Circle Inspector of Police, Muvattupuzha alleging that they committed the offences punishable under Sections 109, 120-B, 449, 302, 380 and 201 read with section 34 of Indian Penal Code. The prosecution case was that deceased Parukutty, aged about 60 years, was residing alone in her house. She was a spinster. Her relationship with her blood relations and also with neighbours were not cordial. P.W.2, the niece of the deceased, was residing with her till six months prior to the date of incident. The only person on whom deceased Parukutty reposed trust and took into confidence was the appellant, the first accused in the case. He was the coconut climber of the deceased and had access to her house. He was a frequenter to that house also. During the beginning of the year 1999, a dispute arose regarding a pathway used by the deceased to reach her house from Muvattupuzha-Thodupuzha Road. That pathway was lying through the property of one Navullil Mathai and Aleykutty, who are the brother and sister of the second accused. P.W.7, the Secretary of Local Committee of Communist Party of India (Marxist) (‘CPI (M)” for short) intervened in the matter. The matter was settled. P.W.6 and 2nd accused agreed to give a pathway having three feet width. But, they did not honour their commitment. So, Parukutty was forced to file Exhibit P8 suit against P.W.6 and his sister Aleykutty. Since Parukutty filed the suit, the 2nd accused became inimical towards her. He openly declared that Parukitty will not be able to walk through the property of his brother Mathai. He took a decision to do away with Parukutty. Parukutty was in the habit of keeping dogs in her house and hence it was not possible for the 2nd accused to enter into the house of Parukutty and kill her. So, he conspired with the 1st accused and brainwashed him to commit the murder of Parukutty. Finally the 2nd accused succeeded in abetting the appellant to kill Parukutty. At about 1.30 p.m. on 13.10.1999 the first accused criminally trespassed into the Pattuplayil House, wherein deceased Parukutty was residing. So, he conspired with the 1st accused and brainwashed him to commit the murder of Parukutty. Finally the 2nd accused succeeded in abetting the appellant to kill Parukutty. At about 1.30 p.m. on 13.10.1999 the first accused criminally trespassed into the Pattuplayil House, wherein deceased Parukutty was residing. Parukutty was lying in her bed room. The appellant initially strangulated Parukutty using M.O.4 rope and thereafter inflicted cut injuries on her neck using M.O.6 Sickle. Parukutty died on the spot. Thereafter the appellant committed theft of M.O.1 Rechargeable Torch and M.O.2 Tape Recorder and put the same in a big shopper belonging to Parukutty and went to his house. It was also alleged that the accused killed a domestic dog of Parukutty. After reaching home, the appellant set fire to the big shopper to cause disappearance of evidence. According to the prosecution, the appellant and 2nd accused committed the offences punishable under Sections 109, 120-B, 449, 302, 380 and 201 read with Section 34 of Indian Penal Code. 3. Though Parukutty was murdered on the afternoon of 13.10.1999, her relatives and neighbours did not notice this fact for the next four days. On 18.10.1999, some of the neighbours felt a foul smell emanating from the house of Parukutty. One Pallamatathil Kunju along with 1 or 2 neighbours went there and saw the dead body, which was in an advanced stage of decomposition. They informed this fact to P.W.1 Rajan, nephew of Parukutty. P.W.1 went to the house of Parukutty and saw the dead body. He went to the Muvattupuzha Police Station and gave Exhibit P1 F.I. Statement, which was recorded by P.W.17, Head Constable. P.W.17 registered Exhibit P16 F.I.R. under the caption “unnatural death”. Initially it was believed that Parukutty died because of heart ailment. P.W.18, the Sub Inspector of Police attached to Muvattupuzha Police Station came to the house of Parukutty, conducted inquest on the dead body and prepared Exhibit P17 inquest report in the presence of P.W.3 and others. Thereafter P.W.16 conducted autopsy on the dead body of Parukutty and issued Exhibit P15 post mortem certificate. P.W.18 questioned the doctor. At that time, it was revealed that Parukutty died not because of any ailment, but it was a case of homicide. Thereafter P.W.16 conducted autopsy on the dead body of Parukutty and issued Exhibit P15 post mortem certificate. P.W.18 questioned the doctor. At that time, it was revealed that Parukutty died not because of any ailment, but it was a case of homicide. P.W.18 filed Exhibit P18 report to alter the Section from “unnatural death” to Section 302 I.P.C. The F.I.R. and the inquest report which were originally forwarded to the Sub Divisional Magistrate, Muvattupuzha were transmitted to the Judicial First Class Magistrate. Thereafter the investigation was taken over by P.W.19, the Circle Inspector of Police. He visited the place and prepared Exhibit P5 scene mahazar. He questioned the witnesses and arrested A1 and A2 on 25.10.1999. According to the prosecution, P.W.19, questioned A1 and A2 and at that time A1 confessed that M.O.1 Rechargeable Torch, M.O.2 B.P.L. Tape Recorder, M.O.20 Longi and M.O.21 Shirt and M.O.17 Bottle of Furadan were concealed by him in his house itself. Those articles were seized under Exhibit P6 mahazar, to which P.W.9 was an attestor. P.W.19 also seized M.O.3 Sickle and M.O.4 coir in pursuance of the information furnished by the 1st accused. After completing the investigation, he filed the final report also. The learned Magistrate after complying with the formalities committed the case to the Court of Session, which was subsequently made over to the V Additional Sessions Court for trial and disposal. 4. When the appellant and 2nd accused appeared before the learned Sessions Judge, charges were framed against them under Sections 109, 120-B, 449, 302, 380 and 201 read with Section 34 of Indian Penal Code. The charges were read over and explained to them and they understood the same and pleaded not guilty. On the side of prosecution, P.Ws.1 to 19 were examined, Exhibits P1 to P21 proved and marked and M.Os.1 to 21 identified. 5. P.W.1 is the nephew of the deceased. He gave Exhibit P1 F.I. Statement. P.W.2 is the sister of P.W.1 and niece of the deceased. She was examined to prove the fact that M.O.1 Torch and M.O.2 Tape Recorder are properties owned by the deceased. She was also examined to prove the allegation of conspiracy. She supports the prosecution case. P.W.3 witnessed the inquest. He gave Exhibit P1 F.I. Statement. P.W.2 is the sister of P.W.1 and niece of the deceased. She was examined to prove the fact that M.O.1 Torch and M.O.2 Tape Recorder are properties owned by the deceased. She was also examined to prove the allegation of conspiracy. She supports the prosecution case. P.W.3 witnessed the inquest. P.W.4 was examined to establish that on the day next after the date of murder he saw the second accused going away from the house of the deceased and walking through her property. He supports the prosecution case. P.W.5 was examined to prove the theft of M.Os.1 and 2 and the big shopper. He turned hostile. P.W.6 is the brother of the 2nd accused. He was examined to prove the motive. He turned hostile and not supporting the prosecution case. P.W.7 is the Local Committee Secretary of CPI (M), who was examined to prove the motive. He supports the prosecution case. P.W.8 is stated to be a neighbour of deceased Parukutty. He was examined to prove the motive. He supports the prosecution case. He is an attestor to Exhibit P5 scene mahazar. P.W.9 is an attestor to Exhibit P6 seizure mahazar under which M.Os.1, 2, 20 and 21 and the big shopper were seized. He is not supporting the prosecution case and turned hostile. P.W.10 is the lawyer who appeared for the deceased in Exhibit P8 suit. He was examined to prove the motive. He supports the prosecution case. P.W.11 is an attestor to Exhibit P10 mahazar which, according to the prosecution, is a mahazar prepared at the place wherein the appellant and the other accused conspired together to commit the murder. He proved the mahazar. P.W.12 is an attestor to Exhibit P11 mahazar under which M.O.4 coir was seized. He supports the prosecution case. P.W.13 is the Veterinary Surgeon, who conducted post mortem on the dead body of the dog in the house of the deceased and issued Exhibit P12 post mortem certificate he proved the same. P.W.14 is the Village Officer who prepared Exhibit P13 scene plan. He proved the same. P.W.15 is an attestor to Exhibit P14 mahazar under which M.O.3 Sickle was seized. He supports the prosecution case. P.W.16 is the doctor who conducted post mortem on the dead body of Parukutty and issued Exhibit P15 post mortem certificate. P.W.14 is the Village Officer who prepared Exhibit P13 scene plan. He proved the same. P.W.15 is an attestor to Exhibit P14 mahazar under which M.O.3 Sickle was seized. He supports the prosecution case. P.W.16 is the doctor who conducted post mortem on the dead body of Parukutty and issued Exhibit P15 post mortem certificate. P.W.17 is the Head Constable who recorded Exhibit P1 F.I. Statement and registered Exhibit P16 F.I.R. P.W.18 is the Sub Inspector of Police, who conducted the inquest on the dead body of Parukutty and questioned the doctor who conducted autopsy. He filed Exhibit P18 report for altering the Section. P.W.19 is the Circle Inspector of Police who conducted investigation and filed the final report. 6. After the prosecution evidence was over, the appellant was questioned under Section 313 of the Code of Criminal Procedure. He denied all the incriminating circumstances brought against him and maintained his innocence. According to him, upto 1998 he was a member of C.I.T.U., a Trade Union having allegiance to CPI (M). In the year 1998, he resigned from C.I.T.U. and joined I.N.T.U.C., a Trade Union keeping allegiance to Indian National Congress. Because of the change of loyalty, P.W.7, the Secretary of the Local Committee of CPI (M) became inimical towards him. P.W.7 used to threaten him and arrange CPI (M) party workers to assault the 1st accused. According to the first accused, when P.W.7 got such an opportunity, exerted undue influence over the police and falsely implicated him and he is innocent. Thereafter the matter was heard under Section 232 of the Code of Criminal Procedure Code. Since no grounds were established to acquit the accused under Section 232 Cr.P.C., they were called upon to enter on their evidence. No defence witness was examined. Exhibits D1 to D5 are C.D. contradictions of the prosecution witnesses. The learned Sessions Judge acquitted the 2nd accused of all the offences charged. The appellant was found guilty of the offences punishable under Sections 380 and 302 of Indian Penal Code alone and convicted. He was sentenced to undergo imprisonment for life under Section 302 IPC and to undergo Rigorous Imprisonment for 5 years under Section 380 of Indian Penal Code. The sentences were directed to run concurrently. That conviction and sentence are under challenge in this appeal. 7. We heard Sri. He was sentenced to undergo imprisonment for life under Section 302 IPC and to undergo Rigorous Imprisonment for 5 years under Section 380 of Indian Penal Code. The sentences were directed to run concurrently. That conviction and sentence are under challenge in this appeal. 7. We heard Sri. P. Vijaya Bhanu, learned counsel appearing for the appellant and Sri Sujith Mathew Jose, the learned Public Prosecutor. 8. The learned counsel appearing for the appellant has argued that though there is no dispute regarding the factum of death of Parukutty, there is absolutely no material to connect the appellant to the offences alleged. It is argued that the prosecution relies on the circumstantial evidence and not even a single circumstance pointed out is sufficient to connect the appellant to the offences alleged. It is argued that the only material relied on by the learned Sessions Judge to find the appellant guilty of the offence under Section 302 as well as Section 380 I.P.C. was the recovery of M.O.1 Torch and M.O.2 Tape Recorder from the house of the appellant. It is argued that the learned Sessions Judge found that those articles were concealed by him and the authorship of concealment was established. Another circumstance pointed out by the learned Sessions Judge is that when P.W.8 disclosed the factum of death of Parukutty, the appellant, who was present there, did not show any change in his expression. It is argued that even accepting the prosecution case in toto, at the best it can be said that the two articles belonging to deceased were found in the possession of the accused and the only presumption that can be drawn is either that he was the person who committed theft of those articles or he was the receiver of the stolen articles. It is argued that even that presumption cannot be drawn in this case because of the factual position. 9. The learned Public Prosecutor has argued that the materials on record proves beyond any reasonable doubt that it was the appellant who committed the offence. It is argued that the dress worn by the appellant which was seized and sent for chemical examination shows presence of human blood. 9. The learned Public Prosecutor has argued that the materials on record proves beyond any reasonable doubt that it was the appellant who committed the offence. It is argued that the dress worn by the appellant which was seized and sent for chemical examination shows presence of human blood. The Sickle used for the commission of the offence which was seized in pursuance of the information furnished by the appellant had also tested positively for the presence of blood, the origin of which could not be ascertained. Those materials along with the recovery of M.Os.1 and 2 in pursuance of the information furnished by the appellant are sufficient to hold that it was the appellant who committed the murder of Parukutty. 10. According to the prosecution, Parukutty was murdered at about 1.30 P.M. on 13.10.1999. The fact that she was no more came to the notice of the neigbours only on 18.10.1999. Immediately, that matter was informed to P.W.1, the nephew of the deceased, who came to her residence, confirmed the fact and gave Exhibit P1 F.I. Statement. The Sub Inspector of Police conducted Exhibit P17 inquest between 3.00 p.m. and 6.30 p.m. on 18.10.1999. At the time of preparing Exhibit P17 inquest, P.W.18 seized M.Os.5 to 16. The autopsy on the dead body of Parukutty was conducted at 9.00 a.m. on 19.10.1999 by P.W.16, who issued Exhibit P15 post mortem certificate. It contains the following injuries: “(1) Ligature mark 27x1 cm on the neck 7 cm below the right ear 7 cm below the chin and 6 cm below left ear with an area of no mark. 3 cm on the right side of neck. The underlining strap muscles of neck contused. Thyroid cartilage contused Hyoid bone intact Air passages contained brownish froth Both lungs decomposed. (2) Incised wound 2 x 1 cm just above the inner end of left collar bone underlying muscle and superficial vain cut. (3) Incised wound 0.5x0.5 cm over the inner end of right collar bone (superficial). (4) Incised wound 0.5x0.5 cm below the injury No.3 (superficial). (5) Superficial incised wound 0.5x0.5 cm on the right side of chest 12 cms away from nipple at 11 O’Clock position. (6) Superficial incised wound 0.5x0.5 cm just left to injury No.5”. The doctor had opined that the death was due to strangulation as well as due to the incised injury No.2. (5) Superficial incised wound 0.5x0.5 cm on the right side of chest 12 cms away from nipple at 11 O’Clock position. (6) Superficial incised wound 0.5x0.5 cm just left to injury No.5”. The doctor had opined that the death was due to strangulation as well as due to the incised injury No.2. He deposed that the findings were consistent with death due to constriction of force on the neck and injury No.2 was also sufficient in the ordinary course of nature to cause death. The report of the chemical examination of the Viscera collected and sent for examination was not admitted or proved in evidence. But, the material on record proves that Parukutty died because of the injuries sustained by her on her neck and injury No.2. The doctor had opined that the death occurred 3 to 5 days or more prior to the date of post mortem examination. He deposed that all the injuries except injury No.1 could be caused by using a weapon like M.O.3. Even though the doctor had not noted any peculiar shape to the injuries, at the time of oral evidence he had deposed that the injuries were incised and elliptical in shape. But, the fact that Parukutty sustained injuries about a week prior to the date of her post mortem examination and she died of those injuries is established in this case. As we have noted, even the accused is not disputing the prosecution case that Parukutty died because of the homicidal injuries sustained by her. 11. The next question arising for consideration is that whether it was the appellate who caused the murder of Parukutty. At this stage, we may not that the prosecution has not alleged any motive against the appellant. In fact, it is admitted by the prosecution that the appellant is the one and only person in the word on whom the deceased had any cordial relationship and on whom she reposed any confidence. It was also the prosecution case that he had free access to the house of the deceased and she used to give him financial assistance or even give articles. So, he had no motive to commit the murder. The specific case of the prosecution is that the 2nd accused had a motive to commit the murder. So, he conspired with the appellant and abetted him to commit the murder. So, he had no motive to commit the murder. The specific case of the prosecution is that the 2nd accused had a motive to commit the murder. So, he conspired with the appellant and abetted him to commit the murder. It is very interesting to note that the 2nd accused was acquitted of all the charges leveled against him. The charge of conspiracy as well as abetment was found against by the learned Sessions Judge. That being the position, the learned Sessions Judge ought to have considered whether the appellant himself had any motive to commit the murder of Parukutty. It is also interesting to note that the definite prosecution case is that the appellant criminally trespassed into the house of Parukutty, committed her murder and stealed M.Os.1 and 2, put the same in a big shopper and took it away from there. The learned Sessions Judge did not convict the appellant for trespass. Even accepting that the initial entry was with permission, when the appellant committed an offence of murder and theft, that entry became unlawful and thereafter he was a trespasser into that house. So, the conviction for an offence under Section 380 I.P.C. after acquitting the appellant for an offence under Section 449 I.P.C. itself was not proper. 12. P.W.1 is the nephew of the deceased. He had no cordial relationship with the deceased. In chief examination itself he had admitted that the first accused was trusted by the deceased. During cross examination he had admitted that P.W.2 and her husband Gopi was in inimical terms towards the deceased and husband of P.W.2 was taken into custody by police in connection with the murder of Parukutty and he was released only on the next day. He had also admitted that in addition to Gopi, some other persons were also taken into custody in connection with this murder. Though he had deposed that there was dispute regarding pathway between the deceased and A2, he stated that he had no direct knowledge and he had only a hearsay knowledge about it. 13. P.W.2 is the niece of the deceased. It has come out in evidence that prior to six months of the date of incident P.W.2 along with her husband were residing with the deceased and the relationship between the husband of P.W.2 with the deceased became strained and they were sent out of the house by the deceased. 13. P.W.2 is the niece of the deceased. It has come out in evidence that prior to six months of the date of incident P.W.2 along with her husband were residing with the deceased and the relationship between the husband of P.W.2 with the deceased became strained and they were sent out of the house by the deceased. It is admitted by P.W.2 that the deceased did not allow her or her husband even to enter into the property of the deceased. She had also admitted that the accused was the labourer of the deceased and she had absolute confidence on the appellant. She had admitted that the deceased was in loggherhead with almost all her neighbours and relatives. A week prior to 18.10.1999, she saw A1 and A2 talking underneath a palm standing in the property of the 2nd accused. But she had admitted that there was nothing strange in that particular conduct. She deposed that she had seen M.O.1 Torch, M.O.2 Tape Recorder and M.O.3 Sickle in the house of the deceased while she was residing with the deceased six months ago. She had also deposed that she purchased and gave a big shopper of green and blue colour to the deceased. She deposed that she does not know whether the deceased had purchased any movables after her departure and whether she had given any movables to any other person. She does not know whether Parukutty had given any articles as gift to the appellant. She had admitted that during the life time of Parukutty she used to help the appellant by giving him money and articles. Hence, even accepting the case of the prosecution that the evidence of P.W.2 proves the ownership of M.Os.1 to 3 with the deceased, the same is not sufficient to hold that the appellant committed the theft of M.Os.1 to 3 after committing the murder of the deceased. 14. Prosecution examined P.W.5 to prove that after committing the murder of Parukutty, the appellant put M.Os.1 and 2 into a big shopper and went to his house. According to the prosecution, on the way P.W.5 saw the appellant with the Tape Recorder and Torch inside the big shopper. He did not support the prosecution case. 14. Prosecution examined P.W.5 to prove that after committing the murder of Parukutty, the appellant put M.Os.1 and 2 into a big shopper and went to his house. According to the prosecution, on the way P.W.5 saw the appellant with the Tape Recorder and Torch inside the big shopper. He did not support the prosecution case. He deposed that few days prior to the date on which he came to know about the death of Parukutty he saw the appellant walking along the bund of a paddy field. The appellant was carrying a bag in his hand. He does not know what exactly were the articles kept inside the bag. He denied the suggestion that when he was questioned by the police he had told that he saw a M.O.1 Torch and M.O.2 Tape Recorder inside that big shopper. The prosecution has not explained as to how a person could identify articles kept concealed inside a big shopper unless it was shown to him by the person carrying the same. The prosecution has no case that on seeing the appellant. P.W.5 came near him and the appellant opened the big shopper and showed the articles kept in it to P.W.5. Even if it is accepted that P.W.5 saw the appellant on the fateful day with a bag shopper in his hand, he could not have identified M.Os.1 and 2. So, his evidence before Court that he had not seen M.Os.1 and 2 is only to be accepted. 15. The prosecution examined P.Ws.6 to 8 and also P.W.10 to prove the motive. 16. P.W.6 is none other than the elder brother of the 2nd accused. As we have already stated, the definite case of the prosecution is that the 2nd accused abetted appellant to commit the murder. It was alleged that there was a dispute regarding a pathway between the deceased and A2. The evidence on record shows that A2 had no property anywhere near the house of the deceased. The dispute, if any, could have been between P.W.6 and his sister Aleykutty on one side and the deceased on the other side. Exhibit P7 interim injunction application, Exhibit P8 plaint and Exhibit P9 Commission Report show that Parukutty was residing on the northern side of Thodupuzha-Muvattupzha Road. A pathway starts from Muvattupuzha-Thodupuzha Road and it ends near the house of the deceased. It passes through the property of others also. Exhibit P7 interim injunction application, Exhibit P8 plaint and Exhibit P9 Commission Report show that Parukutty was residing on the northern side of Thodupuzha-Muvattupzha Road. A pathway starts from Muvattupuzha-Thodupuzha Road and it ends near the house of the deceased. It passes through the property of others also. Two other persons were also impleaded as defendants in Exhibit P8 suit besides P.W.6 and Aleykutty. The Commission Report and Plan prepared in the suit shows that apart from Aleykutty and Mathai, others also caused obstructions. The plaint was seen filed during February, 1999. The evidence on record shows that Exhibit P7 petition for prohibitory injunction was filed and an ex parte interim order was passed by the Munsiff on 2.2.1999 and that order was in force even on the date of incident. P.W.6 was examined to prove that a dispute arose between himself and the deceased. He turned hostile and not supporting the prosecution case. The suggestion put to P.W.6 was that he along with his family members agreed to give a pathway having three feet width, but insisted that the deceased should pay consideration for that property which she refused. According to P.W.6, the deceased was having other alternate pathways. 17. P.W.7 deposed that when P.W.6 and A2 caused obstruction Parukutty approached him to mediate in the matter. He further deposed that he asked Parukutty to approach the police and, accordingly, she went to the Police Station and filed a compliant and the police called Parukutty, P.W.6 and A2 and a settlement was arrived at between the parties by which P.W.6 and 2nd accused agreed to give a pathway having three feet width. P.W.7 further deposed that the police requested him to demarcate the pathway and as such he went to the property and demarcated a pathway having 3 feet width. He further deposed that two days after the demarcation of the pathway, Parukutty came again to meet him complaining that 2nd accused blocked that pathway by causing obstructions. He advised her to again approach the Police. Accordingly, she approached the police and the Circle Inspector told her that there was nothing more for the police can do and advised her to approach the Civil Court. So, she filed the civil suit. It is also deposed by him that he arranged P.W.10, a lawyer, who is friend of him, to file the suit and, accordingly, P.W.10 filed Exhibit P8 suit. So, she filed the civil suit. It is also deposed by him that he arranged P.W.10, a lawyer, who is friend of him, to file the suit and, accordingly, P.W.10 filed Exhibit P8 suit. A reading of the evidence of P.W.7 shows that he is more loyal than the king. According to him, on a previous occasion Parukutty has told him that the 2nd accused had threatened her to do away with her life and he had told the police about that fact also. He was not even prepared to admit the fact that the relationship between the appellant and deceased Parukutty was cordial. According to him, he does not know about the relationship between the appellant and Parukutty. In this connection it is pertinent to note that P.Ws.1 and 2 had categorically admitted that the appellant was the only person in the world whom Parukutty reposed confidence. His evidence also shows that the agreement entered into between the deceased and P.W.6 was that Aleykutty can use the boundary dividing her property from that of the property belonging to Mathai and Aleykutty. But at the time of oral evidence, he changed that version. 18. P.W.8 was also examined by the prosecution to prove the motive. According to him, he is a neighbour and when the dispute between the 2nd accused and Parukutty arose regarding the use of pathway, Parukutty approached him and he intervened in the matter. He had also deposed that on a prior occasion when a dog of Parukutty was killed, she approached him and told him that it was the 2nd accused who killed the dog by administering poison to it. There was also a dispute regarding a softwood tree standing in the property of the deceased on the ground that it was causing obstruction to free flow of air and light to the property of the 2nd accused. According to him, he intervened in the dispute regarding the pathway. Both sides agreed that a pathway having 3 feet width can be provided through the boundary line separating the property of Parukutty and P.W.6. Parukutty backed out and she wanted a pathway having a greater width and, accordingly, she filed the suit. It is very interesting to note that in the suit the prayer was only to have a right of easement by prescription of pathway having a width of 3.5 feet. 19. Parukutty backed out and she wanted a pathway having a greater width and, accordingly, she filed the suit. It is very interesting to note that in the suit the prayer was only to have a right of easement by prescription of pathway having a width of 3.5 feet. 19. The evidence of P.Ws.6 to 8 shows that the prosecution has no consistent case regarding the motive alleged. There is absolutely no material to show that the 2nd accused owned any property touching the property of the deceased. The relief sought in Exhibit P8 suit was for a declaration of right of easement. P.W.10 deposed that along with the suit, a petition for interim mandatory injunction and also another petition for prohibitory injunction were filed. The prohibitory injunction was granted and the interim mandatory injunction application was posted for evidence and Parukutty was killed few days prior to the date of taking evidence in that petition. But, the definite case of the prosecution is that she was murdered when the suit itself came up for trial. The alleged petition filed for getting interim mandatory injunction was not produced. The date on which the application was posted for enquiry was also not stated by P.W.10. He was the advocate appearing for the deceased in the civil case and a close friend of the Secretary of the Local Committee of CPI (M). 20. There is yet another aspect. The evidence of P.W.8 shows that second accused as well as P.W.6 were amenable to provide a pathway of 3 feet width along the boundary of the property of P.W.6. If, as a matter of fact, they were amenable to provide a pathway having 3 feet, they can have no grievance. The mere fact that Parukutty filed a suit claiming a pathway having the width of 3½ feet, it is not possible to hold that the 2nd accused became so inimical so as to take a decision to kill Parukutty. So, the prosecution thoroughly failed to prove the motive alleged in this case. As we have already stated, even the learned Sessions Judge did not accept the prosecution version regarding the conspiracy as well as abetment. 21. The learned Sessions Judge had found that the appellant did not show any change in his expression on hearing the factum of death of Parukutty. As we have already stated, even the learned Sessions Judge did not accept the prosecution version regarding the conspiracy as well as abetment. 21. The learned Sessions Judge had found that the appellant did not show any change in his expression on hearing the factum of death of Parukutty. P.W.8 deposed that while he was traveling in a car, he saw some persons and he told them that Parukutty died. He deposed that he saw the 1st accused along with some others returning from his work place. P.W.8 had not stated anything about the change of expression on the face of the appellant. He only deposed that he told the people that Parukutty was no more. In the absence of any evidence, the learned Sessions Judge went wrong in holding that when the appellant heard the news of death of Parukutty he did not show any change of expression in his face. So, that is also not sufficient to connect the appellant to the offences alleged. 22. The only remaining place of evidence to connect the appellant to the offence is the recovery of M.Os.1 to 4 and also recovery of M.Os.20 and 21. The prosecution case is that the appellant trespassed into the house of Parukutty, at the time Parukutty was lying in her bed room and he strangulated her using M.O.4 rope found in the room at 1.30 during broad day light. Thereafter he inflicted injuries 2 to 6 noted in the post mortem certificate using M.O.3 sickle. He threw away the Sickle from the courtyard of the house of the deceased and threw away the rope into the property of one Joshi. It is also the case of prosecution that after committing the murder, he stealed M.O.1 Torch and M.O.2 Tape Recorder and placed those articles in a big shopper which was purchased and given by P.W.2 to the deceased. After reaching his house he burnt the big shopper and concealed M.O.1 Torch in the Almirah. M.O.2 Tape Recorder was put in a sack and was placed on the wooden planks kept below the roof of the verandah. M.Os.1, 2 and M.Os.20 Lungi and M.O.21 Shirt were seized as per Exhibit P6 mahazar. A reading of the confession alleged to have been made by the appellant shows that he had not stated anything about the concealment of those articles. M.Os.1, 2 and M.Os.20 Lungi and M.O.21 Shirt were seized as per Exhibit P6 mahazar. A reading of the confession alleged to have been made by the appellant shows that he had not stated anything about the concealment of those articles. He only stated that if he was taken to the place, he will show the articles. One of the primary requisites to make a recovery in pursuance of the confession made by the accused under Section 27 of the Evidence Act, the authorship of the concealment of articles must be proved, as laid down in Jaffer Hussein Dastagir v. State of Maharashtra (AIR 1970 SC 1934 = 1969 KLT SN 25 [SC]), Mohmed Inayatullah v. State of Maharashtra (AIR 1976 SC 483), Bahadul v. State of Orissa (AIR 1979 SC 1262), Pohalya v. State of Maharashtra (AIR 1979 SC 1949), Dudh Nath Pandey v. State of U.P. (AIR 1981 SC 911), Fr. George Cherian v. State of Kerala – ILR 1989 [2] Kerala 95), Mahabir Viswas v. State of W.B. ([1995] 2 SCC 25), P.P. Mundra etc. v. State of Rajasthan & Anr. Etc. (JT 1998 [1] SC 659). 23. In Jaffer Hussein Dastagir’s case (supra) it was held by a Bench consisting of 3 Judges as follows:- “If an accused charged with the theft of articles states to the police “I will show you the articles at the place where I have kept them” and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact, i.e. keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place”. (Emphasis supplied) In Mahabir Viswas’s case (supra), it was held by a Bench consisting of 3 Judges as follows:- “The admissible part of the statement of Shiba, pursuant to which the ring was recovered, only proves that he knew that the ring was concealed in the ash dump. (Emphasis supplied) In Mahabir Viswas’s case (supra), it was held by a Bench consisting of 3 Judges as follows:- “The admissible part of the statement of Shiba, pursuant to which the ring was recovered, only proves that he knew that the ring was concealed in the ash dump. From such knowledge no inference of Shiba’s committing theft of the ring from the person of Pabitra at the time of his murder and for that matter, of his participation in the murder can be drawn, more particularly when the recovery was made almost six months after the murder”. 24. Sri. Sujith Mathew Jose, learned Public Prosecutor has argued that in the absence of any explanation offered by the appellant as to how he came to know about the presence of M.Os.1 to 4 from the places where those articles were recovered, the only possible presumption is that it was he who concealed the same. He relied on the decisions reported in State of Maharashtra v. Suresh (2000 SCC [Cri] 263] and State of Karnataka v. David Rozario (2002 SCC [Cri] 1852). It is true that on the facts and circumstances of those two cases the apex Court had found that even though the authorship of concealment is not established, if the articles are recovered in pursuance of the information furnished by the accused it an be presumed that the accused knew that those articles were kept in that place. But in those cases there were other materials to connect the accused to the offences alleged. In Suresh’s case (supra) it was held as follows:- “Three possibilities are there when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodies in Section 27 of the Evidence Act”. The decision rendered in Suresh’s case (supra) was followed in David Rozario’s case (supra) also. But, the decisions in Suresh’s case and David Rozario’s case were rendered by a Bench consisting of two Judges. In Jaffer Hussein Dastgir’s case (supra) and Mahabir Biswas’ case (supra) the decisions were rendered by a Bench consisting of three Judges. We respectfully follow the decisions rendered by the Larger Bench and hold that unless the authorship of concealment is established, the recovery in pursuance of the information stated to have been furnished by the accused will not fall under “discovery” as envisaged under Section 27 of the Indian Evidence Act. 25. It is true that even if the statement may not fall within the purview of Section 27 of the Evidence Act, the conduct of the accused leading a police officer to a particular place and pointing out an article kept there will be relevant under Section 8 of the Evidence Act. 25. It is true that even if the statement may not fall within the purview of Section 27 of the Evidence Act, the conduct of the accused leading a police officer to a particular place and pointing out an article kept there will be relevant under Section 8 of the Evidence Act. There is clear distinction between the conduct of person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act if such conduct is influenced by any fact in issue or relevant fact (See Prakash Chand v. State (Delhi Admn.) – AIR 1979 SC 400) In Raveendran & Others v. State (1989 [2] KLJ 534) it was held as follows:- “The evidence of the circumstances simplicitor that the accused led a police officer and pointed out the place or article kept hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of S.27”. In V. Ravi v. State of Kerala (1994 Crl.L.J.162) also it was held that the confession though not admissible under Section 27, it is admissible under Section 8. But, the conduct alone is not sufficient to find a person guilty of the offences alleged against him. 26. It is settled position of law that recovery is not substantive evidence. It is corroborative evidence (See D.B. Deshmuck v. State AIR 1970 Bombay 438; Babboo v. State of M.P. – AIR 1979 SC 1042; Harish Natvarlal Mistry and Ors. Etc. V. State of Gujarat – 1993 [1] Crimes 451). The evidence on record shows that in none of the recoveries the authorship of concealment is established. According to prosecution, M.Os.1 and were taken by the appellant and handed over to the police. A reading of Exhibit P14 mahazar and the evidence of P.W.15 attestor shows that M.O.3 Sickle was seized from the bottom of a cocoa plant standing in the property of the deceased. P.W.19, who prepared Exhibit P14 mahazar, had admitted that M.O.3 was recovered from the courtyard of the house. A reading of Exhibit P14(a) confession shows that it does not contain any statement to establish the authorship of concealment. M.O.4 coir was seized from a coconut garden as per Exhibit P11 mahazar. Exhibit P11(a) is stated to be the confession statement of the appellant. A reading of Exhibit P14(a) confession shows that it does not contain any statement to establish the authorship of concealment. M.O.4 coir was seized from a coconut garden as per Exhibit P11 mahazar. Exhibit P11(a) is stated to be the confession statement of the appellant. Exhibit P11(a) also does not contain any statement regarding the authorship of concealment. A reading of the evidence of P.W.12 would indicate that even before the arrival of the police and the accused, a lot of persons assembled in the coconut garden to witness the seizure of the same which indicates that the police was aware of the fact that rope was there. M.O.4 coir seized was not sent for chemical examination. If that was used for strangulating the deceased, there was every possibility of the same containing the skin, hair, etc. of the deceased. By not sending the same for chemical examination, the prosecution had shut out very valuable piece of evidence. In this connection it is pertinent to note that though prosecution alleged that the appellant had used M.O.3 Sickle to cause the injuries found on the person of Parukutty and it contained blood, that fact was not put to the appellant during his examination under Section 313 Cr.P.C. The fact whether M.O.20 (dothi) and M.O.21 (shirt) contains blood was also not put to the appellant during his examination under Section 313 Cr.P.C. We find it very difficult to agree with the arguments of the learned Public Prosecutor that though the appellant was not specifically asked regarding the presence of blood stain in M.O.3 Sickle, M.O.20 Dothi and M.O.21 Shirt, since those articles were sent for chemical examination and Exhibit P21 report which contains those facts was put to him, that was sufficient compliance of that Section. 27. According to prosecution, it was not a murder for gain, but after committing murder the appellant committed theft of a Tape Recorder and a Torch. It is very interesting to note that the Torch is a re-chargeable one and the Tape Recorder also is one working in alternate current. It is to be noted that the house of the appellant was not electrified. So, normally he cannot use those two articles. The deceased was living alone. The murder was committed during broad day light. Even according to the prosecution, gold ornaments and currency notes were kept inside the room in which the deceased was sleeping. It is to be noted that the house of the appellant was not electrified. So, normally he cannot use those two articles. The deceased was living alone. The murder was committed during broad day light. Even according to the prosecution, gold ornaments and currency notes were kept inside the room in which the deceased was sleeping. If, as a matter of fact, the appellant wanted to commit theft, he could have easily committed theft of those articles. According to prosecution, the big shopper purchased by P.W.2 and supplied to the deceased was used by the appellant for taking away the stolen articles. P.W.2 deposed that the big shopper given to the deceased was having green and blue colour. The remnants of the big shopper produced before Court was of red colour. Even though the learned Public Prosecutor has strenuously argued before us that P.W.2 had not stated that the colour of the big shopper was red and she had only stated that blue and green colour is intermingled the real colour of the big shopper would be red, we are not inclined to accept that argument. If the big shopper was having any red colour, P.W.2 who had purchased the same ought to have spoken to that fact before Court. At any rate, a big shopper with blue and green colour intermingled would never become red on burning. It is also pertinent to note that even though the prosecution has got a case that M.O.18 remnants were of the big shopper purchased by P.W.2, the same was not put to her and its identity established. 28. Even accepting the prosecution evidence in toto that M.Os.1 and 2 were seized from the house of the appellant, the question arising for consideration is whether that alone is sufficient to point out to the offence under Section 302 I.P.C. In Gulab Chand v. State of M.P. (1995 SCC [Cri] 552) the apex Court had held that even if the accused failed to explain his possession of an article stolen from the house of the deceased, that is not sufficient to fasten a liability of an offence under Section 302 I.P.C. and Illustration (a) of Section 114 of the Evidence Act can be used only to show that either he might have committed robbery or he may have received a stolen property knowing that it was a stolen property. In Limbaji v. State of Maharashtra (AIR 2002 SC 491) also the apex Court had held that the possession of an article belonging to the deceased by the accused does not give rise to a presumption that it was the accused who committed the murder of the victim. In this case admittedly the appellant was close confident of the deceased. He had no motive to commit the murder. According to the prosecution, it was A2 who abetted the appellant to commit the murder. The offence of conspiracy and abetting was found against by the learned Sessions Judge himself. Even accepting the fact that M.Os.1 and 2 were seized from the house of the accused, it is not sufficient to hold that it was he who committed the murder of the victim, especially in view of the evidence of P.W.2 that the deceased used to give the appellant money as well as articles. At best it can be said that what is established is only an offence under Section 380 IPC. But how far he can be held liable for an offence under Section 380 IPC on the face of the acquittal of the offence under Section 449 IPC is also doubtful. Even accepting the fact that he is liable for the offence under Section 380 IPC, the appellant is undergoing jail sentence from 27.12.2000 onwards. He had suffered more sentence than that is sufficient to meet the ends of justice. 29. From what is stated above, it is clear that the prosecution has failed to establish the offences under Sections 302 and 380 I.P.C. against the appellant. Hence, he is entitled to an acquittal. In the result, the appeal is allowed. The conviction and sentence imposed on the appellant under Sections 302 and 380 of Indian Penal Code are hereby set aside and he is acquitted of those offences. He will be released from custody forthwith unless his continued detention is required in connection with any other case.