JUDGMENT R. BALASUBRAMANIAN, J. In these multiple Appeals, each of the convicted accused (there are four accused in all) are challenging their conviction given by the learned trial Judge holding each one of them guilty under Sections 449 , 302 read with 34 and 392, I.P.C. For the offence of murder committed by sharing the common intention, each one stands sentenced to undergo imprisonment for life together with a fine of Rs.1,000/- carrying a default sentence. For their conviction under Section 449 and 392, I.P.C. each one stands sentenced to undergo five years rigorous imprisonment for each offence together with a fine of Rs.500/- carrying a default sentence. The sentence stand directed to run concurrently. Heard Mr. S. Shanmugavelayutham learned Senior Counsel appearing for A-2, Mr. J. Chandren, learned counsel appearing for A-4, Mr. S. Sivakumar learned counsel appearing for A-3; Mr. M.N. Balakrishnan, learned counsel appearing for A-1 an Mr. N.R. Elangu, learned Additional Public Prosecutor appearing for the State. 2. The prosecution case is that by trespassing into the house of an old lady by name Saroja at about 11.00 a.m. on 16.6.2003, the accused murdered her and then decamped with the jewellery belonging to her and found in her house valued at Rs. 35,000/- or so. The prosecution examined P.Ws.1 to 16 to prove their case. Exs. P. 1 to P.28 and M.Os. 1 to 29 also came to be marked by their side. The defence did not let in either oral or documentary evidence. 3. Admittedly, there are no eye witnesses to the crime. In other words, the entire prosecution case rests only on circumstantial evidence, namely, the alleged movement of the accused to and for from the house of the deceased and recoveries of various incriminating objects from each of the accused pursuant to the respective confession statement which belongings of the deceased. The prosecution also relies upon the most telling circumstance, namely the arrest and recovery within a short span of time from the time of occurrence. Let us elaborate the prosecution case here under. In doing so, were are not going to give the full facts as spoken to by the prosecution since we feel suffice it to say the necessary facts leading to the launching of the prosecution case. P.W.1 is the daughter of the deceased her only sister is Sornambigai. Let us elaborate the prosecution case here under. In doing so, were are not going to give the full facts as spoken to by the prosecution since we feel suffice it to say the necessary facts leading to the launching of the prosecution case. P.W.1 is the daughter of the deceased her only sister is Sornambigai. At about 1.30 p.m. on 16.6.2003, Sornambigai (not examined, since she is reported to have settled down in United states) called P.W.1 over telephone and said that their mother Saroja is lying dead and jewelleries worn by Saroja and those which were available in the bureau are missing. This made P.W.1 to rush to the house where she also observed her mother lying dead. She found her mother's ear lobes bleeding and both the ear lobes were cut. She also found one of the jewelleries were available on her mother's body. Everything was in a Spell Smell and the bureau was found ransacked. Sornambigai went to the Police Station and gave the Complaint. P.W.1 being acquainted with the signature of her sister Sornambigai, had identified her sister's signature in the Complaint. At 2.15 p.m. police arrived at the crime scene and by examining P.W.1 and her sister recorded their statements. Saroja was above at 10.45 a.m. on that morning since at that time she called P.W.1 over telephone and asked her to come home. P.W.1 and her sister Sornambigai gave the details of the missing articles including cash in the house. On 20.6.2003, the police sent for P.W.1 to the Police Station stating that they have arrested two suspected accused. P.W.1 went to the Police Stations where she found A-2 and A-4. Police asked P.W.1 to identify the various articles available in the Police Station at that time, stated to have been recovered at the instance of A-2 and A-4. P.W.1 identified M.Os. 3 to 9 at that stage as the articles belonging to her mother. P.W.1 was examined and her statement is recorded, On 22.6.2003, Police again sent for P.W.1 to Police Station at bout 5.30 p.m. stating that they have arrested two more suspected persons and recoveries have been made. Accordingly, P.W.1 and her only sister Sornambigai gone to the Police Station where they found A1 and A3 having been arrested. P.W.1 identified M.Os 10 to 14 available at that time in the Police Station as the belonging of her mother. Accordingly, P.W.1 and her only sister Sornambigai gone to the Police Station where they found A1 and A3 having been arrested. P.W.1 identified M.Os 10 to 14 available at that time in the Police Station as the belonging of her mother. P.W.1 was examined and her statement was recorded. Again on 2.7.2003, P.W.1 was sent for by the police to go to the Police Station at about 2.30 p.m. and accordingly, she want there, where she identified M.Os 15 to 18 as the belonging of her mother. She was examined by recording her statements. P.W.2 is the brother of the deceased. His evidence only shows that at about 1.30 p.m. on 16.6.2003 Sornambigai called him over telephone and informed that her mother is dead and that some jewelleries and cash have been stolen. Accordingly, P.W.2 reached the house of his sister where he observed her dead body. 4. P.W.16 is the investigating officer in this case At 3.00 p.m. on 16.6.2003, Sornambigai - sister of P.W.1 appeared before him and gave a written Complaint Ex.P.17 is the said Compliant. He registered Ex.P. 17 Police Station Crime No. 384 of 2003 under Sections 454, 302 and 380 I.P.C. Ex.P.18 is the printed First Information Report. He served a copy of Ex.P.18 to Sornambigai under her acknowledgment. He sent the express records to the Court as well as to the higher records to the Court as well as to the higher officials P.W. 16 reached the crime scene at 4.15 p.m. and prepared Ex.P.15 the Observation Mahazar and Ex,.P. 19 the Rough Sketch in the presence of witnesses. From the dead body he removed M.O.1 the green colour cloth and M.O.2 the severed Mangal Sutra thread under Ex.P.2 attested by witnesses. The he caused the crime scene and the dead body to be photographed. M.O.28 series are the photographs and the negatives. Then P.W.16 requisitioned the services of the Finger Print Expert who is P.W.12 in this case. Dogs squad was also summoned. In the mean time, P.W.16 conducted inquest over the dead body in the presence Ex.P.20 the Inquest Report, During inquest he examined P.W.1 Sornambigai and other by recording their statements P.W.16 lifted the finger prints of Sornambigai the deceased, P.W.1 and others before sending the dead body for post-mortem P.W.16 then sent the dead body to the hospital for post-mortem. 5. 5. P.W.11 is the Police Constable who accompanied the dead body to the hospital for post-mortem. After post-mortem he removed M.O.25 Saree, M.O.26 blouse and M.O.27 - blood stained inner skirt and handed over the same to the investigating officer. P.W.13 is the Professor of Forensic Medicine in the Government Head Quarters Hospital at Salem. On receipt of Ex.P.15 the requisition and the dead body on 17.6.2003, he commenced post-mortem on the dead body. During post-mortem he found various symptoms as noted by him in Ex.P.16 the post-mortem report. The symptoms noted therein are as here under : “ Injuries : (i) Multiple small linear & crescentic abrasion present over the neck. (ii) 1. Near the lower jaw, crescentic 1 cm in length. 2. On the right side of lower part of neck linear 2 cm. crescentic 1 cm crescentic 0.5 cm and 0.5 cm linear 1 cm. 3. Over the middle of neck 2 in number crescentic each 0.5 cm length, over the lower part of the middle of neck 5 in number three crescentic 0.5 cm length and two linear 2 cm × 2.5 cm in length. 4. Over the left side of neck linear 2.5 cm & 1.5 cm length and a crescentic abrasion 0.5 cm length. On Dissection of the Neck : Small contusions in number. Over the right side of neck each measuring 2 cm × 1 cm ; 3 cm × 2 cm; 1 cm × 0.5 cm; 1 cm × 0.5 × 0.5 cm. On the left side of neck 4 contusions each measuring 1 × 0.5 cm; 2 × 1cm; 3 × 2cm; 2 × 0.5 cm; dark red in colour. These contusions are present beneath the crescentic abrasion (finger nail markings.) Ante-mortetn fracture of the hyoid bone present - on the junction the left side greater horn and body. With surround : contains contusion of (n.c.) back of larynx present 3 × 2 cm × 0.5 cm dark (e) red. 5. Forthy blood in trachea present. 6. Contusion of left upper eyelid 3 × 2 × 1 cm left lower eyelid with surrounding tissues 5 × 4 × 1 cm dark (e) red. (Black eye) 7. Contusion of right side of lower jaw 4 × 3 × 1 cm dark (e) red on dissection, fracture of mandible present. 8. 5. Forthy blood in trachea present. 6. Contusion of left upper eyelid 3 × 2 × 1 cm left lower eyelid with surrounding tissues 5 × 4 × 1 cm dark (e) red. (Black eye) 7. Contusion of right side of lower jaw 4 × 3 × 1 cm dark (e) red on dissection, fracture of mandible present. 8. Contusion of left frontal region of scalp 4 × 3 cm & left parietal region of scalp 3 × 2 cm. Dark (e) red. Contusion of right ear 3 × 1 × 0.5 cm & left ear 2 × 1 × 0.5 cm. The pattern of the injuries appear homicidal and antemortem in nature (n.c.) and have been produced on the person a few minutes prior to the death. Others Findings : Conjunctiva - intensely reddish. Heart : Fluid blood present. Liver, Spleen left kidney: congested Right kidney - absent (e) Stomach : 200gm partly digested food material present. No smell. Mucosa pale. Uterus: Empty, Normal. Brain : Congested.” Doctor opined that death would have occurred 24 to 30 hours prior to post-mortem as a result of asphyxia due to throttling. He had also deposed that the ear lobes would have suffered the tear injury when the ear studs are pulled. 6. P.W. 16 was continuing his investigation by examining witnesses and recording their statements. P.W.16 recovered M.Os 25 to 27 produced before him by P.W.11, the Police Constable, who was present during postmortem under Ex.P.21. P.W.12 is the Finger Print Expert. He was summoned by the Investigating Officer in this case to come to the crime scene and accordingly he reached the crime scene at about 4.00 p.m. on 16.6.2003. He lifted five chance finger print impressions available in the steel bureau. Out of five, three chance finger print impressions lifted by him tallied with the finger prints of Sornambigai. As the remaining two chance finger prints lifted by him were (sic) not tallying with that of any of the inmates, he assigned distinct marks for those two impressions as ‘F1‘ and ‘F2”. he sent a report to the Investigating Officer. He photographed ‘F1‘ and ‘F2‘, ‘F1‘ an ‘F2‘ prints were also compared with the finger print impressions of the inmates of the house and with that of other suspected persons. ‘F1‘ and ‘F2‘ impressions did not tally. he sent a report to the Investigating Officer. He photographed ‘F1‘ and ‘F2‘, ‘F1‘ an ‘F2‘ prints were also compared with the finger print impressions of the inmates of the house and with that of other suspected persons. ‘F1‘ and ‘F2‘ impressions did not tally. P.W.12 sent another report to the Investigating Officer on that examination on 18.6.2003. On 23.6.2003, he received specimens finger prints of A1 to A4. He compacted those specimen finger prints with the available finger prints namely ‘F1‘ and ‘F2‘. The finger print impression ‘F1‘ was tallying with the right hand thumb impression of A1. P.W.12 sent a report on that examination to the police on 23.6.2003. Ex.P.14 series are his reports and the photographs. P.W.16 received the various reports sent by P.W.12. On 18.6.2003, P.W.16 sent finger prints of suspected persons available with him to P.W.12 P.W.16 received the various reports sent by P.W.12. P.W.16 constituted a special team to apprehend the accused. On 20.6.2003 at about 12.00 noon, on prior information, P.W.16 arrested A2 and A4 in the presence of P.W.5 and another and examined them. A2 at that time gave a voluntary confession statement, the admissible portion of which is Ex.P. 7. At the time of his arrest, A2 produced M.Os. 4 and 13 from his person, which were recovered under Ex.P.3 attested by the same witnesses, A4 also gave a voluntary confession statement at that time, the admissible portion of which is Ex.P.5. Pursuant to which, A4 led the police party and the witnesses to his house from where he produced M.Os.3, 5 and 9, which were recovered under Ex.P.6. A2 pursuant to his confession statement Ex.P.7, led the police party and the witnesses to the jewellery shop of P.W.6 and on he identifying, M.Os 6, 7 and 8 produced by P.W.6 were recovered under Ex.P.8 attested by the same witnesses. Ex.P.22 the pledge receipt produced by the second accused was also recovered by P.W.16. At 5‘o clock on that evening, A2 led the police party and the witnesses to his house from where he produced M.Os. 19 and 20, namely, blood stained yellow blue colour shirt, and a blood stained trouser, which were recovered under Ex.P.10 in the presence of the same witnesses. P.W.16 examined P.Ws. 1, 5,10 and 14 by recording their statements. He lifted the finger prints of the arrested accused. 19 and 20, namely, blood stained yellow blue colour shirt, and a blood stained trouser, which were recovered under Ex.P.10 in the presence of the same witnesses. P.W.16 examined P.Ws. 1, 5,10 and 14 by recording their statements. He lifted the finger prints of the arrested accused. The arrested accused were sent for judicial remand and the incriminating objects recovered were sent to the Court. Before sending those articles to the Court by showing them to P.W.1 and her sister Sornambigai, P.W.16 examined them by recording their statements. P.W.1 and Sornambigai identified those articles. On 21.6.2003 at 10.00 a.m. P.W.16 recovered M.O.19 produced toy P.W.6 under Ex.P.23 At 8.00 a.m. on 22.6.2003, P.W.16 arrested A1 and A3 in the presence of witnesses and examined them. A1 and A3 each gave a voluntary confession statement at that time. Ex.P.24 is the admissible portion of the confession statement of A1, pursuant to which, M.Os. 10, 11, 21, 22, 23 and 24 produced by him from his house were recovered under Ex.P.11, the mahazar. Ex.P.25 is the admissible portion of the confession statement of A3, pursuant to which at 2.30 p.m. on that day M.Os. 12, 13 and 14 produced by A3 from his house were recovered under Ex.P.12 in the presence of the same witnesses. The arrested accused were brought to the Police Station. The finger prints of the arrested accused were lifted and then the accused were sent for judicial remand. By showing the incriminating objects recovered to P.W.1 and her sister - who identified them. P.W.16 examined them by recording their statement. The finger prints of the accused lifted from them were sent by him to the Finger Print Expert. 7. P.W.6 witnessed the preparation of Ex.P1, the Observation Mahazar and the recoveries under Ex.P.2 from the crime scene. P.W.4 knows the deceased as he is residing in the upstairs portion of the house in which the deceased is living. P.W.4 also knows the accused, A1 is residing opposite to the house where he is staying. All the accused used to play in the road. On 16.6.2003, the day on which Saroja died, P.W.4 was in his house. At 11.30 a.m. his child fell sick and therefore, he came down the stairs with his child to go to the doctor. (P.W.4 is staying in the second floor). All the accused used to play in the road. On 16.6.2003, the day on which Saroja died, P.W.4 was in his house. At 11.30 a.m. his child fell sick and therefore, he came down the stairs with his child to go to the doctor. (P.W.4 is staying in the second floor). As he was coming down, he saw Sornambigai the second daughter of the deceased and the deceased made usual enquiries about the child and then Sornambigai left telling her mother to keep the door closed. As P.W.4 came further down to take his vehicle, he noticed all the four accused sitting on the pial. P.W.4 returned to his house half an hour thereafter and as he was climbing the stairs, he saw A1 to A3 coming down the stairs. A4 was not to be seen. However, P.W.4 continued to be in his house with his child as the child was sick. At about 1.30 p.m., he heard the outcry of Sornambigai which made him to go down, at which point of time, he noticed Saroja's mouth clogged with a cloth, which was removed by Sornambigai. P.W.4 realised that Saroja is already dead. Sornambigai prepared a Complaint in the house, which she gave it in the Police Station P.W.1 was by her side. Police examined him and on 17th sentence incomplete P.W.15 is the Village Administrative Office, who witnessed the arrest of A2 and A4; recording their confession statement, the admissible portion of which are Exs.P. 4 and P.5; pursuant to which recoveries have come to be made as spoken to by P.W.16. P.W.6 is a pawn broker by profession. On 18.6.2003, A2 appeared before him in his shop and pledged M.Os. 6 to 8 to raise a loan. P.W.6 on those pledged articles lent a sum of Rs. 6,500/- On 20.6.2003, A2 appeared in his shop once again along with the police and P.W.5. P.W.6 was examined by the police by showing the pawn ticket and P.W.6 affirmed that there was such a transaction. Thereafter, P.W.6 handed over the material objects referred to earlier to the police. On 21.6.2003, P.W.6 handed over the counter foil of the book evidencing pledge transactions. P.W.7 is another Village Administrative Officer, who witnessed the recovery of M.Os. P.W.6 was examined by the police by showing the pawn ticket and P.W.6 affirmed that there was such a transaction. Thereafter, P.W.6 handed over the material objects referred to earlier to the police. On 21.6.2003, P.W.6 handed over the counter foil of the book evidencing pledge transactions. P.W.7 is another Village Administrative Officer, who witnessed the recovery of M.Os. 10, 11, 21, 22, 23 and 24 produced by A1 under Ex.P.11 the recovery mahazar and recovery of M.Os.12 to 14 under Ex.P.12 produced by A3 pursuant to his confession statement. 8. P.W.15 during the relevant time was the Inspector of Police of Salem Town Police Station. On his file two Complaints were registered in Crime Nos. 859 of 2000 and 879 of 2000. He came to know that A1 an A3 in the present case, who are involved in those two Crime Numbers also are in judicial remand. Therefore, he moved the jurisdiction Court to take A1 and A3 in his custody, which was accordingly granted. While they were in police custody, P.W.15 examined them at about 3.00 p.m. on 1.7.2003 in the presence of P.W.8 and another. At that time, A1 and A3 confessed making certain disclosures relating to the crime registered on the file of the Investigating Officer in the present case. Accordingly P.W.15 informed P.W.16 about those disclosures. Pursuant to the disclosures made by A1 and A3, P.W.15 also recovered the case properties concerned in Crime Nos. 859 of 2000 and 879 of 2000 both on his file. On 2.7.2003, P.W.15 in the company of P.W.16, proceeded to the Co-operative Bank of Ponnamapettai from where M.Os. 15 to 17 were recovered on being produced by the Manager of the Bank. P.W.8 is another Village Administrative Officer. He was summoned to come to the Salem Town Police Station at about 7.30 a.m. on 2.7.2003. Accordingly, he went to that Police Station. Then he was asked to accompany the police and the accused. At 10.30 a.m. on that morning, from the Salem Co-operative Urban Bank, M.Os. 15 to 18 came to be recovered, produced by the Bank Manager under Ex.P.13. P.W.9 is the Branch Manager of the said Bank. A1 is the member of that Bank. On 17.6.2003, A1 raised a jewel loan from that Bank by pledging M.Os. 14, 15, 17 and 18. 15 to 18 came to be recovered, produced by the Bank Manager under Ex.P.13. P.W.9 is the Branch Manager of the said Bank. A1 is the member of that Bank. On 17.6.2003, A1 raised a jewel loan from that Bank by pledging M.Os. 14, 15, 17 and 18. M.O. 23 is the membership card of A1 and M.O.20 is the receipt evidencing such jewel loan transaction. On 23.6.2003, the Investigating Officer in this case examined them as to whether any pledge had been made and left the bank stating that he shall not part with the jewels in favour of anybody even if a request is made. On 2.7.2003, the Inspector of Police gave a requisition to the Bank on which P.W.9 obtained orders from the higher ups. At 11.30 a.m. on 2.7.2003, M.Os. 14 to 18 were recovered from the Bank. At that time, A1 was present in the Bank. 9. P.W.10 is selling two wheelers. He knows the accused. A1 is residing in the street in which he is living. The remaining accused used to go to that street, for playing cricket and therefore he knows them also. At about 11.00 a.m. on 16.6.2003, P.W.10 was preparing to leave his house to go to his other house at Thillainagar. At that time, he saw Sornambigai coming (sic) out of their house and proceeding on the road. Opposite to the house of A1, A1 to A4 were talking. Half an hour to 45 minutes thereafter, P.W.10 returned to his house and at that time, he was all the accused proceeding in the road passing Ponnamapettai gate. P.W.10 proceeded to his house. At 2.00 p.m. on that day, he heard Sornambigai shouting, which made him run to her house where he found Saroja lying with bleeding tear injures on the ear lobes. She was found dead. P.W.10 also found every article in the house in a pell-mell and Sornambigai informed him that somebody murdered her mother and decamped with the jewelleries. P.W.14 is another resident of Ponnamapettai in which street A1 is also residing. P.W.14 knows the other accused as they used to play cricket in the road where his residence is situated. P.W.14 knows the deceased as well, who is residing opposite to his house. On 16.6.2003, Saroja died at 11.30 on that morning. P.W.14 is another resident of Ponnamapettai in which street A1 is also residing. P.W.14 knows the other accused as they used to play cricket in the road where his residence is situated. P.W.14 knows the deceased as well, who is residing opposite to his house. On 16.6.2003, Saroja died at 11.30 on that morning. When he was returning home from his garden land, he saw all the four accused coming down the stairs from the house of Sarojammal. All the accused went towards the main road and then left. P.W.14 went to his house. At 2.00 p.m. on that day, he heard Sornambigai crying, which made him to go over there where he found Saroja dead. 10. P.W.16 was continuing his investigation by examining further witnesses and recording their statements. On 2.7.2003, he recovered the articles already referred to above from the Co-operative Urban Bank. M.O.s 15 to 18 are the articles recovered from the Bank. Those articles were also identified by P.W.1 and Sornambigai as the belongings of their mother, P.W.16 gave Ex.P.26, the requisition to the Court to send the case properties for chemical examination. As an enclosure to Court's letter Ex.P.27 the case properties were sent to the laboratory. Ex.P.28 is the Chemical Examiner's report. After completing the investigation P.W.16 filed the final report in Court against the accused on 20.8.2003 (sic) under Sections 449, 302 read with 34 and 392 I.P.C. When the accused were questioned under Section 313 of the Code of Criminal Procedure based on the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to facts. A2 alone filed a Written Statement at the end of his questioning in sum and substance contending as hereunder: “P.W.10 is the brain behind his implication in this case; P.W.10's father was murdered; P.W.10 was suspecting that A2's adoptive father is the man behind that murder; P.W.10 is a habitual offender, who has a criminal history sheet in the investigating Police Station; A2 is not involved in the crime at all; using force, he was taken from his residence on 16.6.2003 and detained in the investigating Police Station till he was remanded to judicial custody; A2's father sent a representation dated 18.6.2003 to the Investigating Officer; the District Collector, Salem Commissioner of Police, Salem and Chief Minister's Grievance cell disclosing the real state of affairs; Section 50 of the Code of Criminal Procedure is not complied with and therefore the arrest of A2 as projected by the prosecution is false; A2 never confessed as alleged by the prosecution and on the other hand his signatures were taken in blank papers, which were later on used for fabricating the confession statement A2 never produced any material objects as contended by the prosecution; the pledge receipt. Ex.P.22 does not contain his signature; Ex.P.22 came to light only at the time of trial; M.O.29 has no evidentiary value; A2 is an utter stranger to the other accused and therefore it is clear that he is falsely implicated; the Finger Print Expert's evidence eliminates the participation of A2 in the crime and the cause of death is not certain.” To his statements, he claims to have enclosed two documents one the letter dated 18.6.2003 sent by his father and the other the certificate of posting receipt. But we find from the records, that the enclosures mentioned at the foot of his statement were not in fact filed. 11. Mr. S. Shanmugavelayutham learned Senior Counsel appearing for A2 advanced arguments on behalf of all the accused though on record he is appearing only for A2. It is contended by the learned Senior Counsel that the evidence of P.Ws. 4 10 and 14 attempting to prove the movement of the accused hither and thither near the crime scene on the date of occurrence cannot be believed for the simple reason that they came to be examined only after the arrest of the accused. It is contended by the learned Senior Counsel that the evidence of P.Ws. 4 10 and 14 attempting to prove the movement of the accused hither and thither near the crime scene on the date of occurrence cannot be believed for the simple reason that they came to be examined only after the arrest of the accused. P.W.4 had admitted that he did not disclose that he saw the accused moving near the crime scene during the investigation and therefore, his evidence before the Court lacks credibility. P.W.10 has a long history of Criminal Case behind him and therefore he would be definitely an obliging witness to the police on whose file he is under surveillance. The evidence of P.W.14 is equally bad, since he had also come to be examined by the police only after the arrest of the accused. Therefore, it is argued by the learned Senior Counsel that this Court by disbelieving the oral evidence of P.Ws. 4, 10 and 14 can conclude that there is no legal evidence to show the movement of the accused near the crime scene. Even assuming the evidence of the above witnesses deserves acceptance, yet it may not be any significance at all, since admittedly, A1 is residing in the very same street where these witnesses and the deceased are living and therefore his presence in that area cannot be with any sinister motive. The prosecution case itself is that A2 to A4 are the friends of A1 and they used to play cricket in the street and if the evidence is viewed from that angle, then this Court cannot conclude with any certainty that A1 to A4 for the first time had come to the crime scene only with a view to commit the crime. Then by taking us through the recovery evidence, it is contended by the learned Senior Counsel that P.Ws. 5, 7 and 8 are all Village Administrative Officers, who alone have been chosen by the Inspector of Police to sustain the recovery. Then by taking us through the recovery evidence, it is contended by the learned Senior Counsel that P.Ws. 5, 7 and 8 are all Village Administrative Officers, who alone have been chosen by the Inspector of Police to sustain the recovery. When the evidence on record shows that independent witnesses were available, then the Police Officer is expected to comply with Section 100 of the Code of Crimina Procedure, which mandates that the Police Officer should summon respectable independent witness of that locality to be a witness for the recovery and only if they expressed their inability, the Police Officer can lay his hands on some other witnesses of his choice. In this case, no material is (sic) available to conclude that independent respectable witnesses of the locality refused to participate in the recovery proceedings. Therefore, it is argued that, the entire recovery evidence must be doubted. Learned Senior Counsel would sum up the argument at this stage by contending that the presence of the accused at the crime scene cannot be doubted and the recovery evidence is not worthy of acceptance. If these two limbs of the prosecution case fail, then there is no other legal evidence to connect the accused with the crime. Alternatively, it is argued that assuming that recoveries are established, yet it would only show that the accused were found in recent possession of the incriminating objects and the presumption provided under Section 114(a) of the Indian Evidence Act cannot be extended to conclude that the accused are guilty of the offence of murder, especially if this Court is inclined to doubt the presence of the accused at the crime scene. Therefore, it is argued that at the best, the conviction of the accused can be only under Section 411 of the Indian Penal Code. Then, by taking us through the medical evidence and the symptoms noted by the Doctor who did post-mortem, it is argued by the learned Senior Counsel that if the entire prosecution case is accepted as true, yet from the materials on record, this Court can conclude that the accused might have attempted to steal some articles from the house of the deceased and only in that course, in all probability, the victim would have come to resist and in that context only the death would have been caused. Relying upon the judgment of the Supreme Court in Limbaji and others v. State of Maharashtra , 2002 SCC (Cri) 1044, namely, in particular reference to VI (c) (28) at page 1065 of the said citation, Learned Senior Counsel would argue that the conviction of the accused under Section 302 read with 34, I.P.C. therefore cannot be maintained. Mr.S. Sivakumar, learned counsel appearing for A3; Mr. J. Chandran, learned counsel appearing for A4 and Mr. M.N. Balakrishnan, learned counsel appearing for A1 adopted the arguments advanced by Mr. S. Shanmugavelayutham, learned Senior Counsel appearing for A2. In meeting these points, learned Additional Public Prosecutor would contend that the personal clothes recovered from A1 and A2 when tested for blood grouping chemically and scientifically, it showed that the blood found in those articles recovered from A1 and A2 tallied with the blood group of the deceased as found in her personal wearing apparels which she was wearing at the time she was fatally attacked. A1's chance print, lifted from the steel bureau available in the crime scene tallied with the finger prints of A1 taken during investigation. There is expert's evidence to the above effect. Under these circumstances, learned State counsel would argue that the involvement of A1 and A2 at any stretch of imagination cannot be doubted at all. Then relying upon the recovery evidence from all the four accused of various articles, which are identified to be that of the deceased, it is argued by the learned State counsel, the conviction of the accused under Section 302 read with 34 I.P.C. and the other Sections are supported by legal evidence. 12. In the light of the arguments advanced by the learned Senior Counsel, other counsel and the learned Additional Public Prosecutor, we went through the entire records with care and caution. Admittedly, there is no direct evidence to the crime and as rightly conceded by the learned counsel on (sic) either side, the prosecution case has to stand or fall only on the credibility of the circumstantial evidence available in this case. Admittedly, there is no direct evidence to the crime and as rightly conceded by the learned counsel on (sic) either side, the prosecution case has to stand or fall only on the credibility of the circumstantial evidence available in this case. The circumstances, relied upon by the prosecution, are as hereunder : (a) the accused were seen near the crime scene just at or about the time when Sornambigai, the daughter of the deceased left the house; (b) accused 1 to 3 were found coming down the stairs from the house of Saroja, since deceased ; (c) A2 and A4 were arrested on 20.6.2003 leading to the recovery of some of the incriminating objects shown to have been stolen from the house of the deceased and identified as the belongings of the deceased; (d) the arrest of A1 and A3 on 22.6.2003 leading to the recovery of some of the other incriminating objects stated to have been stolen from the house and identified as that of the deceased; (e) the recovery of the remaining articles from a Co-operative Urban Bank on 2.7.2003 at the instance of A1; (f) the blood stain in the personal wearing apparels of A1 and A2 (three in number) are found to contain ‘B‘ group blood when those articles were chemically examined and that group tallied with the blood group of the deceased as found on her personal wearing apparels; (g) chance finger print lifted from the crime scene tallied with the finger print of the first accused taken during investigation. 13. The State counsel argued that the possession of articles having been established to be of a recent origin, namely within a matter of four to six days or even ten days - the last recovery was on 2.7.2003 and the crime was on 16.6.2003, this Court can definitely presume that the accused are guilty of murder and robbery. Therefore, let us examine the evidenciary value of each of the circumstances referred to earlier one any one. It is true that the prosecution had established that the first accused is living in close proximity to the house of the deceased as well as the other witnesses. It is also on evidence that accused 2 to 4 are the friends of A1 and they used to assemble in the street, where A1 is living to play cricket. It is true that the prosecution had established that the first accused is living in close proximity to the house of the deceased as well as the other witnesses. It is also on evidence that accused 2 to 4 are the friends of A1 and they used to assemble in the street, where A1 is living to play cricket. It has also come out on evidence that during such play, or even after play, the accused used to go to the house of the deceased to quench their thirst by taking water. Under these circumstances, prima facie we are satisfied that the presence of the accused at the crime scene, which stands established as referred to above, may not be with any intention to commit any crime. The prosecution case itself is that for over a number of days they used to play in the street. But the important question is, was their movement on the day in question, namely, on the fateful day on 16.6.2003 is established or not e The movement of A1 to A4 either in the road or towards the house of the deceased or coming out of the house of the deceased is spoken to only by P.Ws. 4, 10 and 14. P.W. 4 claims that he is living in the second floor of the building, where Saroja was living. He had admitted when he was cross examined by the defence, that he did not disclose during investigation to the police that on the day of the occurrence he noted the presence of the accused near the crime scene (i. e.) first sitting on the piel and then coming down the stairs. Therefore, it is needless to state that his evidence before Court for the first time on the above aspect, has to be necessarily ignored, since it would not be safe to accept such evidence coming forth for the first time in Court in such grave crimes, P.W.10's evidence speaks volumes against him. He had been detained as a Goondas under Tamil Nadu Act 14 of 1982. He admits that he is involved in a murder case on the file of the very same Police Station. Therefore, we need not have any hesitation to say that he is in all probability be an obliging witness to the police. As noted earlier P.Ws. He had been detained as a Goondas under Tamil Nadu Act 14 of 1982. He admits that he is involved in a murder case on the file of the very same Police Station. Therefore, we need not have any hesitation to say that he is in all probability be an obliging witness to the police. As noted earlier P.Ws. 4, 10 and 14 came to be examined during investigation to highlight the movement of the accused near the crime scene on the date of the occurrence, only after the accused came to be arrested. Therefore, their evidence definitely lacks credibility. If they have disclosed such movement prior to the arrest of the accused, then we have no doubt at all that their evidence deserves appreciation from a different angle, but that is not the case here (sic). Under these circumstances, were are inclined to reject the evidence of P.Ws. 4, 10 and 14 that they saw the movement of the accused on the crucial day near the crime scene. 14. Let us go to the recovery evidence now. It is true that P.Ws. 5, 7 and 8 are Village Administrative Officers, who alone are examined to prove, the recovery of various incriminating objects. Of course, a duty is cast upon the Police Officer to call respectable witnesses of the locality where the recoveries are made to be witnesses for the recoveries. His evidence must show that in fact he made an attempt to get respectable witnesses of the locality and since they failed, he has to go for other witnesses. But that is not his evidence in this case. But, this is to his evidence in this case. But this Court cannot lose sight of the fact that (sic) the recent trend in all Criminal Cases where the witnesses consistently are turning hostile. Therefore, we do not find any manifest error or illegality committed by the Inspector of Police in having with him Village Administrative Officer only for witnessing the recovery since the investigating officer may be at least sure that those Village Administrative Offices as Government Servants would not turn hostile against the State. Even otherwise, we find that the mere failure on the part of the Investigating Officer to summon respectable witnesses of the locality, from where the recovery is made, to be witnesses for the recovery, would not vitiate the entire recovery. Even otherwise, we find that the mere failure on the part of the Investigating Officer to summon respectable witnesses of the locality, from where the recovery is made, to be witnesses for the recovery, would not vitiate the entire recovery. What all is required at such stages is, the Court must be cautious in evaluating their evidence. Having that in our mind, when we perused the evidence of P.Ws. 5,7, and 8 we do not find any infirmity at all in their evidence. They are not shown to be persons having any special interest to sustain the prosecution case or shown as persons having an axe to grind against the accused. In other words, the evidence a of P.Ws. 5, 7 and 8 appeals to our conscience and therefore we have decided to accept their evidence and accordingly we accept their evidence. 15. It may be noticed that one recovery is made from a Cooperative Urban Bank in which the Government may have fair amount of control. The recovery from the Bank is at the instance of A1. P.W.9 is the Branch Manager of that Bank. One of the witnesses, namely P.W.8 witnessed the recovery from the Bank. The other recovery is from P.W.6 the Pawn Broker before whom A1 appeared and pledged that articles. The remaining incriminating articles have come to be recovered from the person of the accused, namely, A1 at the time of his arrest, and the other articles produced by the respective accused from their houses. Therefore, looking from any angle, we are not in a position to doubt the evidence let in by the prosecution that several articles came to be recovered at the instance of the accused on their respective days of arrest. P.W.1 who is the daughter of the deceased had identified all these articles along with her sister Sornambigai, who is now in United States of America as and when recoveries came to be made as that of her mother. Her evidence also appeals to our good conscience and therefore (sic) we accept her evidence as well. P.W.1 who is the daughter of the deceased had identified all these articles along with her sister Sornambigai, who is now in United States of America as and when recoveries came to be made as that of her mother. Her evidence also appeals to our good conscience and therefore (sic) we accept her evidence as well. The net result of our analysis up till now is the prosecution failed to establish by acceptable evidence that, the accused were seen near the crime scene with an intention to commit the crime and the prosecution had established that recoveries of several incriminating objects connected with the deceased came to be made on the arrest of the accused. So far is so good for the prosecution. 16. Medical evidence shows that Saroja died due to homicidal violence. The question is it a pre-planned murder of Saroja came to be fatally attacked in the course of the accused committing any other crime. Before proceeding further, we make it very clear that the articles recovered and exhibited in this case are proved to be that of the deceased. Therefore, there cannot be any doubt that all the accused or any one of them might have had a hand in the ultimate end of Saroja. In addition to the above, the availability of finger print of A1 at the crime scene and A1 and A2's blood stained clothes containing the said blood group of the deceased would reinforce our definite conclusion that at least A1 and A2 would have definitely participated in the commission of crime. The question is as stated earlier, is it a pre-planned murder or the murder could have been come to be caused in the course of another transaction. In this context, we would respectfully refer to the judgment of the Supreme Court, brought to our notice by the learned Senior Counsel appearing for A2. We extract here under the entire paragraph VI (c) (28) : “Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. We extract here under the entire paragraph VI (c) (28) : “Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khan's v. State of Rajasthan AIR 1956 SC 54 : (1956) MLJ 150 case, the three Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would he unsafe to hold the accused guilty of murder assuming that murder and robbery had taken place as a part of the same transaction. The reason is this. Going by the prosecution case, the deceased -Bacurao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No. 1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilise the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatch the ear-rings before putting an end to the victim. It seems to us that there was no pre-mediated plan to kill the deceased. True, common intention could spring up any moment, and all the three accused might have decided to kill him instantaneously, for (sic) whatever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of S. 34 , I.P.C., While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim.” In fact the Supreme Court in that case was also analysing the issue, namely, the most crucial issue whether on the basis of recent possession of the articles belonging to the deceased, could the presumption available in law be stretched to hold the persons found in such possession guilty of the gravest offence or murder and the Supreme Court on the facts available in that case held that it could not be stretched. The circumstances in the case decided by the Supreme Court and noted by the Supreme Court itself in that judgment are in paragraph II (6), which we extract here under: “(i) Accused Nos. 1 to 3 were seen going together towards the field of Baburao in the night of occurrence e (ii) The deceased-Baburao was wearing golden ear-rings and silver ring on his person and the same were found missing. His ear lobes were found injured which indicated that in the process of removal, of ear-rings such injuries were caused. 1 to 3 were seen going together towards the field of Baburao in the night of occurrence e (ii) The deceased-Baburao was wearing golden ear-rings and silver ring on his person and the same were found missing. His ear lobes were found injured which indicated that in the process of removal, of ear-rings such injuries were caused. (iii) The accused No. 1 Limbaji pointed out the shop of Vijayakumar P.W. 5 to whom he had sold one golden ear-ring belonging to Baburao and recovery of the same in consequence of the said information; (iv) recovery of silver lingakar in consequence of the information given by the said accused ; (v) recovery of two golden rings on 15.6.1984 inconsequence of the information by accused No. 2; (vi) recovery of one more ear-ring in consequence of the information given by accused No. 3 on 20.6.1984; (vii) human blood noticed on the shirt of; accused No. 2” In that case, the Supreme Court decided the prosecution case only on the recovery evidence available and on that evidence alone, as noted earlier, the Supreme Court refused to stretch the presumption to hold the accused guilty of murder and accordingly acquitted them. But on the recovery evidence, their conviction under Section 392 read with 34 , I.P.C. was altered into Section 394 read with 34, I.P.C. We do find a strong similarity on facts between the case decided by the Supreme Court and the case before us. The tear injury to the ear lobe is admitted by the Doctor as an ante-mortem injury. There is compression of neck and there are medical symptoms for that. There are internal injuries corresponding the external injuries found around the neck. On the materials available on record and on the medical symptoms noted above, this Court can easily visualize what might have really happened and it must be as here under : The accused not being strangers, had always access to the house of the deceased and using such acquaintance and access, in all probability, the accused might have gone into the house. From the medical symptoms available in this case, it could be easily seen that the intention of the accused was not to murder the victim but only to steal whatever that is available in the house. From the medical symptoms available in this case, it could be easily seen that the intention of the accused was not to murder the victim but only to steal whatever that is available in the house. If really the accused wanted to murder the victim and then remove the jewellery, they could have very well achieved that object by throttling her to death and then removing the jewellery from her person without causing any injury on the body. But in this case, both the ear lobes have suffered tear injuries. Doctor admitted that those tear injuries are ante-mortem in nature and they are possible if one pulls the ear studs with force. That symptom is a clinching circumstance in this case, which in our considered opinion, to tilt the scale in favour of the accused. We draw support for our conclusion from the judgment of the Supreme Court, namely, Paragraph 28 extracted earlier. The Supreme Court in that case said that no the course to commit another offence, there is every possibility of one of the assailants causing an injury on the head of the victim in this case - since deceased with a view to silence or immobilize the victim and if the idea was to murder and take away the ornaments from the person, there was really no need of forcibly snatching the ear rings before putting an end to the victim. Similar is the conclusion, which we could easily arrive at going by the tear injury on the ear lobes of the deceased coupled with the medical evidence that those injuries are definitely ante-mortem. Then it goes without saying as held by the Supreme Court on facts in that case, which according to us are comparable to the facts with the case on hand, the accused cannot be held guilty of the offence under Section 302 read 34, I.P.C. The accused are not shown to be armed at the time of committing the offence of stealing. Compression of the neck with corresponding internal injuries are shown to be the cause of death. The Supreme Court in the above referred to judgment also held that the possibility of one of the assailants suddenly choosing to attack as an instantaneous reaction cannot be ruled out and when there are two such possibilities, the presumption available in law cannot be extended to hold the accused guilty for the gravest offence. The Supreme Court in the above referred to judgment also held that the possibility of one of the assailants suddenly choosing to attack as an instantaneous reaction cannot be ruled out and when there are two such possibilities, the presumption available in law cannot be extended to hold the accused guilty for the gravest offence. It may be noticed here that the accused in that case before the Supreme Court were also tried under Section 302 read with 34 and 392, I.P.C. But however, the recent possession of the articles with the accused, which are identified to be that of the accused [sic deceased] would definitely make them liable for their offence under Section 393 read with 34, I.P.C. The fact that they are found in possession of the articles belonging to the deceased which were available inside the house would also show that they have trespassed into the house. Therefore for the conviction under Section 449, I.P.C. also there is legal evidence. 17. The resultant position is the judgment under challenge is set aside so far as the conviction of the appellants/accused under Section 302 read with 34, I.P.C. and they are acquitted of the said offence. There conviction under Section 392 read with 34 and 449, I.P.C. is sustained. The Trial Court had sentenced them for the offence under Sections 392 read with 34 and 449 I.P.C. to undergo rigorous imprisonment for five years. Therefore, the judgment under challenge to that extent of convicting each of the accused under Sections 392 read with 34 and 449 I.P.C. alone is confirmed. Appeals stand disposed of accordingly. Appeal disposed of.