Judgment : M. SATHYANARAYANAN, J. 1. All these appeals arise out of judgment dated 28.10.2005 made in S.C. No. 301 of 2003 on the file of the Court of Additional Sessions Judge/Fast Track Court No. III, Vridhachalam. C.A. No. 69 of 2006, is filed by the State for enhancement of sentence to the accused. C.A. No. 1096 and 1097 of 2006 are preferred by the accused No. 2 and 3 respectively challenging their conviction under Section 302 read with 34, 395 and 396 of IPC. accused No. 3 also challenges his conviction and sentence under Section 302 of IPC. 2. The charges framed against the appellants and other accused ate as follows: 1. All the siccusad persons have committed the offence punishable Under Section 457 I.P.C. 2. 4th accused has committed the offence punishable Under Section 302 I.P.C. 3. Second accused has committed the offence punishable Under Section 302 read with 34 I.P.C. 4. All the accused persons have committed the offence punishable Under Section 395 I.P.C. 5. All the accused persons have committed the offence punishable Under Section 396 I.P.C. The conviction and sentence passed by the trial Court are as follows: i. All the accused are convicted under Section 457 of IPC and sentenced to undergo R.I. for 10 years and to pay a fine of ` 2,000/-each and in default to undergo further period of R.I. for two years. ii. All the accused are convicted under Section 396 of IPC and sentenced to undergo R.I. for 10 years and pay a fine of ` 2,000/-each and in default to undergo further period of R.I. for two years. iii. Conviction of the accused persons under Section 302 IPC and 395 IPC is not necessary in view of application of Penal Provision 396 IPC and period of imprisonment, ordered against the accused persons shall run concurrently and the period of detention if any undergone by them either as remand prisoners or as under trial prisoners shall be set off under Section 428 Cr.P.C. 3. For the disposal of these appeals, the following facts are necessary: On the intervening night of 13.11.2002 and 14.11.2002 at around 1.30 a.m. all the accused with common intention to commit robbery in the shop under the name and style of Peri.P.Peri. Peria Karuppan Chettiar and also take away the life of the security personnel namely Thiru. For the disposal of these appeals, the following facts are necessary: On the intervening night of 13.11.2002 and 14.11.2002 at around 1.30 a.m. all the accused with common intention to commit robbery in the shop under the name and style of Peri.P.Peri. Peria Karuppan Chettiar and also take away the life of the security personnel namely Thiru. Muthukrishnan, had broke open the lock of the shop and entered into and all the accused in furtherance of the common intention to murder Muthukrishnan, who was sleeping inside the shop and accordingly, the second accused tightly held the legs of Muthukrishnan and 4th accused sat on his chest and constricted his neck with one hand and tightly pressed his nose and mouth with another hand and put the jute rope around the neck of Muthukrishnan and strangled him to death. During the course of same transaction all the accused with common intention had robbed jewellery of all description found in the above said shop and took away 4.788 kgs. of gold jewels 5.595 kgs. of silver ornaments, totally worth about 12.00 lakhs. Therefore, the prosecution has laid charge sheet against accused No. 1 to 5 as stated above. 4. The prosecution in order to sustain their case, had examined P.Ws.1 to 37 marked Exhibits P-1 to P-75 and also marked material objects 1 to 349. On behalf of the accused, no oral evidence was let in and no documents were marked. 5. P.W.1 is the owner of the pawn broker shop and according to him, the shop was closed at about 8.00 p.m. on 12.11.2002 and Night Watchman-security guard by name Muthukrishnan took charge of the security of the said shop. On 13.11.2002 at about 5.30 a.m., P.W.4, who is employed as the sweeper came to the, house of the P.W.1 waking up and informed him that the security personnel namely Muthukrishnan was found dead in the shop and the shop was also kept open and on appearance it reveal that the hands and legs of Muthukrishnan had been tied with jute rope and he had been strangled to death and that Almirahs were also found open and jewels were found scattered. 6. P.W.4 also called P.W.2 who is working as the Accountant and also called P.W.3 who is also working in the shop. 6. P.W.4 also called P.W.2 who is working as the Accountant and also called P.W.3 who is also working in the shop. Thereafter, P.W.1 along with P.W.2 went to Mandharakuppam Police Station at about 7.30 a.m. on 13.11.2002 and lodged a complaint under Exhibit P-1 to Balasubramanian-Sub-Inspector of Police, who on receipt of the complaint, had registered a case in Crime No. 257 of 2002 for the alleged commission of the offences under Section 457, 380 and 302 of IPC, and forwarded copy of the F.I.R. to the Jurisdictional Magistrate Court and to his higher officials. 7. P.W.37 who is the Station House Officer of. the said Police Station, has taken up investigation at about 8.15 a.m. on 13.11.2002 and proceeded to the scene of occurrence at about 8.30 a.m. and in the presence of witnesses, had prepared scene mahazar under Exhibit P-52 and rough sketch under Exhibit P-61 and taken steps to photograph the scene of occurrence. P.W.37 also summoned the services of sniper dog and also finger print expert. 8. P.W.37 conducted inquest over the body of the deceased at about 10.00 a.m. on 13.11.2002 in the presence of witnesses and prepared inquest report under Exhibit P-62. Thereafter, he sent the body of the deceased to the Government Hospital Vridhachalam for postmortem. Thereafter, P.W.37 recovered the incriminating articles from the scene of occurrence under recovery mahazars Exhibit P-63 and P-64. 9. On 14.11.2002, P.W.37 examined some witnesses and also examined P.W.1 who gave list of robbed jewels based on the receipts and he was further examined. P.W.37 further examined P.W.2 and also examined other witnesses. On 16.11.2002, P.W.37 examined P.Ws.7 to 14 who pledged the jewels with P.W.1. On 18.11.2002, P.W.37 gave a requisition for sending some parts of the body for chemical analysis and on 20.11.2002, P.W.37 examined other witnesses who also pledged the jewels with P.W.1 and also on 21.11.2002, 30.11.2002 and 6.12.2002. On 10.12.2002, P.W.37 examined P.W.33 who conducted autopsy on the body of the deceased and also taken steps to nab the accused. 10. On 6.2.2003, while the police party headed by P.W.37 on patrol duty and conducted vehicle search, two persons who came in a two-wheeler were stopped the vehicle and attempted to fled away. When they were nabbed and searched, they were found in possession of jewels. Those two persons are A1 and A2. 11. 10. On 6.2.2003, while the police party headed by P.W.37 on patrol duty and conducted vehicle search, two persons who came in a two-wheeler were stopped the vehicle and attempted to fled away. When they were nabbed and searched, they were found in possession of jewels. Those two persons are A1 and A2. 11. On interrogation, accused No. l voluntarily gave a confession statement in the early morning hours on 7.2.2003 and it was recorded in the presence of P.W.22 and in pursuant to the admissible portion of the confession, some jewels were recovered and also the two wheeler under seizure mahazar Exhibit P-65. 12. Accused No. 2-Shajahan has also voluntarily given a confession in the presence of P.W.22 and another and as per the admissible portion of the confession under Exhibit P-66, a chain was recovered under the cover of mahazar Exhibit P-67. At that time, a person namely Pavadai was present, to weigh the jewels. At about 12.30 p.m. on 12.3.2003, the house of accused No. 2 was searched and some gold jewels were recovered under the cover of mahazar Exhibit P-68 and the jewels were also weighed by the witness Asari. Accused No. 2 also identified a person to whom he sold some of the jewels and the said jewels were also recovered under the cover of mahazar Exhibit P-69. Thereafter, accused No. 1 and 2 were produced berore, the jurisdictional Magistrate at about 9.00 p.m. and they were remanded to judicial custody. Thereafter, P.W.37 altered the offence under Section 302, 457 and 380 to that of Sections to 395 and 396 of IPC, and the alteration report, is marked as Exhibit P-70. 13. P.W.37 proceeded further with the investigation and on receipt of information, proceeded to Panruti along with his party. At about 11.00 p.m. on 7.2.2003, near Panruti bus-stand, he arrested accused No. 3 and he voluntarily gave confession and the same was recorded in the presence of P.W.15 and as per the admissible portion of the confession statement marked as Exhibit P-20, some jewels and cash were recovered under the cover of mahazar Exhibit P-71. The pledged jewels were also recovered under the cover of mahazar Exhibit P-21. The pledged jewels were also recovered under the cover of mahazar Exhibit P-21. Accused No. 3 also identified a person with whom he sold some portion of the stolen jewels and it was seized in the presence of P.W.15 and another under the cover or mahazar Exhibits P-22 and 23. In the house of accused No. 3 also, some jewels were recovered and the same were seized under the cover of mahazar Exhibit P-25. 14. Accused No. 3 gave information with regard to the role played by accused No. 4 and accordingly accused No. 4 was arrested at about 18.30 hours on 7.2.2003 and he voluntarily gave confession statement in the presence of P.W.15 and another. As per the admissible portion of the confession statement Exhibit P-27, some portion of the stolen jewels were seized from the house of elder sister of accused No. 4’s mother and the jewels were recovered under the cover of mahazar Exhibit P-28. Thereafter, accused No. 3 and 4 were produced before the jurisdictional Magistrate Court and were remanded to judicial custody. 15. P.W.37 received information with regard to the availability of accused No. 5 and accordingly, he effected arrest of accused No. 5 at about 4.00 a.m. on 8.2.2003 at Melappalaiyur Village and accused No. 5 voluntarily gave confession statement in the presence of P.W.16 and another and as per the admissible portion of confession Exhibit P-32 some portion of jewels werts recovered at about. 6.00 a.m. from the house of accused No. 5 and the same were seized under the cover of mahazar Exhibit P-33 in the presence of the above said witnesses. Accused No. 5 also identified the persons with whom he has sold the stolen jewels and those jewels were recovered from them under the cover of mahazar Exhibits P-34 (sic), P-31, P-72 and P-73. Accused No. 5 was produced before the jurisdictional Magistrate at about 7.00 p.m. on 8.2.2003 and was remanded to judicial custody. 16. P.W.37 summoned P.W.1 on 9.2.2003 and shown the seized jewels and recorded his further statement. P.W.37 also recorded the further statement of other witnesses. Once again P.W.1 was summoned on 10.2.2003 and was shown the jewels which were seized on 7.2.2003 and his further statement was also recorded. 16. P.W.37 summoned P.W.1 on 9.2.2003 and shown the seized jewels and recorded his further statement. P.W.37 also recorded the further statement of other witnesses. Once again P.W.1 was summoned on 10.2.2003 and was shown the jewels which were seized on 7.2.2003 and his further statement was also recorded. The witnesses namely P.Ws.7 to 14 who were pledged jewels with P.W.1 were also summoned and they were shown the jewels and also the receipts from them were also seized. 17. Since accused No. 5 expressed his willingness to give a confession statement on 10.2.2003, necessary application was made before the jurisdictional Magistrate to record his confession statement. P.W.37 again summoned P.W.1 on. 15.2.2003 and shown him the jewels which were seized on 8.2.2003 and so also other witnesses who pledged the jewels with P.W.1 for the purpose of identifying the jewels. 18. Since P.W.37 during the course of investigation came to know that accused No. 4 had disposed of some stolen jewels at Bombay, he obtained police custody of the said accused on 19.2.2003, proceeded to Bombay on 21.2.2003. Accused No. 4 identified his uncle namely Mohammed Ismail and told P.W.37 that he has entrusted some portion of the stolen jewels to him and the same were recovered in the presence of P.W.17 and another under the cover of mahazar Exhibits P-35, P-36, P-38 and P-39. P.W.37 after completing the investigation at Bombay, proceeded to Mandharakuppam Police Station on 22.2.2003 and produced accused No. 4 before the jurisdictional Magistrate and remanded him to judicial custody on 24.2.2003. In respect of the seized jewels at Mumbai, P.W.1 was again summoned and shown the jewels and his further statement was also recorded. The confession statement given by accused No. 5 before the Judicial Magistrate, Panruti (P.W.35) was marked as Exhibit P-59 and the said confession statement was recorded on 14.2.2003. 19. P.W.37 after completion of investigation, has filed final report, which was taken on file after committal, the case was transferred to the file of Fast Track Court No. III/Additional Sessions Court, Vridhachalam and the said Court after full fledged trial, has convicted the accused and imposed sentence as stated above. 20. Accused No. 2 and 3 challenging the, legality of the conviction and sentence, had preferred Crl. A. Nos. 1096 and 1097 of 2006. 21. The State had also preferred appeal in Crl. 20. Accused No. 2 and 3 challenging the, legality of the conviction and sentence, had preferred Crl. A. Nos. 1096 and 1097 of 2006. 21. The State had also preferred appeal in Crl. A. No. 69 of 2006 on the ground that even though the trial Court found that the prosecution had proved guilt of all the accused under Section 457, 396 read with 34 of IPC, beyond reasonable doubt, had imposed sentence of R.I. for 10 years only and also held that in view of the conviction under Section 396 of IPC, no separate conviction and sentence is required under Section 302 read with 395 of IPC. The State has also filed Crl. O.P. No. 672 of 2006 for expunging of certain observations/strictures made in paragraph No. 33 of its judgment. 22. This Court heard the submissions of Ms. P.V. Rajeswari, learned counsel appearing for the appellants/A2 and A3, Mr.V.R. Balasubramaniam, learned Additional Public Prosecutor. 23. Even though notices were served on the accused who are incarcerated in Crl.A. No. 69 of 2006, except for accused No. 2 and 3 other accused have not entered appearance. Hence, this Court has appointed Mr. N. Doraisamy, Advocate as Amicus curiae to put forth his submissions on behalf of accused No. 1, 4 and 5 who have not entered appearance and preferred appeal as against the conviction and sentence passed by the trial Court and submission was also made by him. 24. Tmt. P.V. Rajeswari, learned counsel appearing for accused No. 2 and 3 has argued with vehemently contending that in so far as accused No. 2 is concerned that he along with accused No. 1 were said to have been apprehended while they were proceeding in a motorcycie in the night hours on 6.2.2003 in the presence of P.W.21 and another accused No. 2 had given confession statement and as per the admissible portion of the confession statement, certain articles were recovered. It is the further submission of the learned counsel appearing for the accused No. 2 that P.W.21 turned hostile and therefore, the arrest and recovery of accused No. 2 is of no consequence and hence the trial Court, has committed grave error in convicting and sentencing accused No. 2. 25. It is the further submission of the learned counsel appearing for the accused No. 2 that P.W.21 turned hostile and therefore, the arrest and recovery of accused No. 2 is of no consequence and hence the trial Court, has committed grave error in convicting and sentencing accused No. 2. 25. The learned counsel appearing for the appellants would further submit that, the alleged recovery of jewels in pursuant to the admissible portion of confession statement bristles with contradiction and the same is evidenced from the testimony of P.W.15 who was one of the witnesses present at the time of alleged recovery. In this connection, learned counsel appearing for the appellants has drawn the attention of this Court to the testimony of P.W.15 namely Vasan. 26. In so far as accused No. 3, the learned counsel appearing for the appellants would submit that a perusal of the oral evidence of P.W.15 would disclose that at about 11.00 p.m on 6.2.2003 on seeing the police party a person attempted to flee away and he was caught in front of the Gandhi Statue near Panruti bus-stand and he is accused No. 3 namely Raja Mohammed. However, P.W.15 wrongly identified the accused No. 3 in the Court. 27. P.W.15 would further depose that accused No. 3 on being apprehended, voluntarily gave a confession statement in his presence and in the presence of one Muthuvaradhan Chettiar and a sum of ` 46,000/ was recovered from a yellow colour bag which was found in possession of accused No. 3. Thereafter, accused No. 3 took the party to a Village near Tiruvannamalai and told them that he gave some portion of the stolen jewels to his relative as well as one Rajendran at Villupuram and further told the police party that he has sold some portion of stolen jewels at Kallakurichi, Vridhachaam and he is also keeping some portion of the stolen jewels in his relative’s house at Alichikudi Village and the admissible portion of the confession statement given by accused No. 3 was marked as Exhibit P-20 and accordingly the jewels were recovered from the respective persons under the cover of mahazars Exhibit P-21, P-22, P-23, P-24, P-25, P-26, P-27, P-28 and P-29. In the cross-examination of P.W.15, suggestion has been made to the effect that P.W.15 has subscribed his signature in the prepared statement and that accused No. 3 has not given any confession statement and the same was denied by P.W.15. It is the further submission of the learned counsel appearing for the appellants that except the tainted version of P.W.15 and documents i.e. Exhibits P-21 to P-29, no other incriminating circumstances are available against accused No. 3 to charge and convict him and it was only a make believe FIR in order to falsely implicating the accused No. 3. 28. Per contra, Mr. V.R. Balasubramaniam, learned Additional Public Prosecutor would submit that the fact remains the deceased died of homicidal violence as per the testimony of the Doctor-P.W.33, who conducted autopsy and the postmortem certificate Exhibit P-55 marked through P.W.33 would also indicate that the deceased namely Muthukrishnan would have died due to strangulation and consequent asphyxia and hence the prosecution has proved the death was due to homicidal violence. It is the further submission of the learned Additional Public Prosecutor that even though P.W.21 who was the witness to the arrest and recovery of accused No. 2 has turned hostile, ha had admitted his signature in the confession statement and the signature portions have been marked as Exhibit P-40 and P-45. P.W.21 had also admitted his signature in the recovery mahazars and his signature portions were marked as Exhibits P-41, P-42, P-43 and P-44. It is the further submission of the learned Additional Public Prosecutor that though P.W.21 turned hostile, in the chief examination he would state that the police party was near Velayamathavi Junction and at that time two persons came in TVS 50 two-wheeler and when they were intercepted they tried to flee away and they were nabbed. On search of the vehicle, it was found in a bag which was kept on the petrol tank of the vehicle jewels were found and the police party had recovered the jewels and the signatures of P.W.21 were also obtained on the spot. Therefore, the learned Additional Public Prosecutor would submit that since P.W.21 has not supported the case of the prosecution but only in part he has been treated as hostile and simply because P.W.21 has turned hostile, his testimony cannot be rejected outright. Therefore, the learned Additional Public Prosecutor would submit that since P.W.21 has not supported the case of the prosecution but only in part he has been treated as hostile and simply because P.W.21 has turned hostile, his testimony cannot be rejected outright. It is also the submission of the learned Additional Public Prosecutor that the trial Court has rightly taken into consideration the said aspect, and arrived at the conclusion that the accused No. 1 and 2 had stolen the jewels from the scene of occurrence on 13/14.11.2002 early hours. 29. In so far as accused No. 3 is concerned, the learned Additional Public Prosecutor would submit that P.W.15 has cogently spoken about the arrest of accused No. 3, his confession statement and the recoveries effected in pursuant to the admissible portion of the confession statement and except the suggesting that he had signed the prepared statement etc., nothing useful was elicited in favour of the accused No. 3 in the cross-examination and all the circumstances had clearly point out the role played by accused No. 3 along with other accused in the commission of the offence. 30. The learned Additional Public Prosecutor has also drawn the attention of this Court to the confession statement given by accused No. 5 under Section 164 of Cr.P.C. which was recorded by the Judicial Magistrate No. I, Panruti under Exhibit P-59 would clearly implicate all the accused and in the absence of any retraction by accused No. 5, the same helps good and it can be the sole basis to convict all the accused. 31. In so far as enhancement or sentence, the learned Additional Public Prosecutor would submit that even though the trial Court, has found that the accused are guilty for the commission of the offences under Section 457, 396 read with 34 of IPC., has chosen to award only R.I. for 10 years and on that pretext, has not awarded any separate sentence under Section 302 and 395 of IPC, and considering the nature and magnitude of the offences committed by the accused, maximum sentence should be imposed on them. 32. 32. As regards some observations/strictures made in paragraph No. 30 of the judgment and award of sum of ` 25,000/-payable to the Welfare Fund of Hon’ble Chief Minister of Tamil Nadu, learned Additional Public Prosecutor would submit that on careful perusal and analysis of the testimony of investigating officer would clearly establish that the Investigating Agency taken much pain and effort in nabbing the accused and effected recovery of the jewels as evidenced by Material Objects. Therefore, the said comment on the part of the trial Court is unwarranted and therefore prays for expunging those remarks and setting aside the award of ` 25,000/-payable to the said fund. 33. Mr. N. Doraisarny, learned Amicus Curiae has vehemently contended that merely on the basis of the alleged confession and recovery, all the accused are implicated falsely and the trial Court has not taken into consideration of the fact that the accused are not having any antecedents which would prove that the accused are falsely implicated. 34. As regards the enhancement of sentence, the learned Amicus Curiae would submit that the trial Court taking into consideration the totality of the circumstances, has thought fit to award sentence of imprisonment of 10 years R.I. and since discretion exercised was fair and proper one, no interference is warranted. 35. This Court has carefully considered the submissions made by the learned counsel appearing far the appellants, learned Amicus Curiae and the learned Additional Public Prosecutor and also perused the oral and documentary evidences and also the original records. 36. The questions arise for consideration are: (i) Whether the prosecution has proved their case beyond reasonable doubt against the accused? (ii) Whether the sentence of imprisonment awarded by the trial Court is fit and proper in the circumstances of the case? (iii) Whether the sentence of imprisonment awarded to the accused is to be enhanced? (iv) Whether, the remarks and award of sum of ` 25,000/-made in paragraph 30 of the judgment, of the trial Court, are to be expunged/set aside? 37. Question No. (i): The offences alleged against the accused are grave in nature as according to the prosecution they committed dacoity and in the course of it, has murdered the watchman namely Muthukrishnan who was aged about 75 years. 38. 37. Question No. (i): The offences alleged against the accused are grave in nature as according to the prosecution they committed dacoity and in the course of it, has murdered the watchman namely Muthukrishnan who was aged about 75 years. 38. A perusal of Exhibit P-55 Postmortem certificate issued by P.W.33 coupled with testimony of P.W.33 would clearly disclose that the deceased would have died of strangulation and consequent asphyxia and in fact it was specifically denied by him that it was not a suicidal one. Therefore, the prosecution has established that the deceased had died of homicidal violence. 39. All the accused were arrested by P.W.37 and according to the prosecution they voluntarily gave confession statements and in pursuant to the admissible portion of the confession statements, effected recovery of huge quantity of jewels at various places in Tamil Nadu and also at Mumbai. 40. A careful perusal and analysis of the oral testimonies of witnesses who were present at the time of arrest and recovery would clearly disclose that in pursuant to the admissible portion of confession statement given by the accused, recoveries were effected and as and when the recoveries were effected, the jewels were shown to P.W.1 the owner of pawn shop as well as the witnesses namely P.Ws.7 to 14 who pledged the jewels with P.W.1 and their statements were also recorded. Receipts and relevant books were also obtained from P.W.1 and P.Ws.7 to 14 to match the recovery and no effective cross-examination has been done to the witnesses on that aspect. 41. In so far as accused No. 2 is concerned, no doubt P.W.21 who was present at the time of arrest and recovery, had turned hostile. A perusal of the chief-examination of P.W.21 would disclose that he was proceeding near Valayamadevi junction at about 1.30 a.m. on 6.2.2003 and the police party was conducting vehicle search and at that time two persons came in a two-wheeler and on seeing the police party, they dropped the vehicle and tried to flee away and they ware nabbed and the vehicle was searched and in the bag on the petrol tank of the vehicle, some jewels were recovered and P.W.21 has also subscribed his signature in the confession statement given by the said accused. The signatures of P.W.21 in the confession statement as well as recovery mahazars were marked as Exhibits P-40 to P-45. The signatures of P.W.21 in the confession statement as well as recovery mahazars were marked as Exhibits P-40 to P-45. In the considered opinion of the Court, simply because P.W.21 was treated as hostile and was cross-examined by prosecution, his oral testimony cannot, be eschewed in toto. It is the settled position of law that testimony of hostile witness who supports the case of the prosecution and defence can be looked into to arrive at a decision with regard to the guilt of the accused or validity of the defence projected by the accused. This Court on careful consideration and analysis of the testimony of P.W.21 coupled with the contents of the recovery mahazars, is of the view that the prosecution has proved the guilt, on the part of the accused No. 2 beyond any reasonable doubt. 42. As regards accused No. 3 is concerned, P.W.15 would depose that he was standing near Gandhi Statue at Panruti bus-stand in the night hours on 6.2.2003 and at that time, on seeing the police party a person tried to flee away and he was caught and on interrogation he has revealed that he is accused No. 3 namely Raja Mohammed. It is further testimony of P.W.15 that the accused No. 3 voluntarily gave a confession statement and the same was recorded in his presence and one another witness and on search of the bag carried by him revealed that he was carrying a sum of ` 46,000/-in cash and in pursuant to the admissible portion of the confession statement, huge quantity of the jewels were seised under the cover of mahazar Exhibits P-21 to P-29. Nothing contra are useful to the accused No. 3 was elicited in the cross-examination of P.W.15. 43. It is pertinent to point out at this juncture, P.W.1 who is the owner of the pawn shop has produced two relevant registers to show that the jewels were pledged with him and he has also identified the jewels and the persons who pledged the jewels namely P.Ws.7 to 14 and they also produced the receipts issued by P.W.1 to show that the jewels in question were pledged with P.W.1 and they also identified the jewels. The testimonies of P.W.1 and P.Ws.7 to 14 are clinchingly proved the case of the prosecution as regards the guilt on the part of accused No. 2 and 3 beyond any reasonable doubt. 44. The testimonies of P.W.1 and P.Ws.7 to 14 are clinchingly proved the case of the prosecution as regards the guilt on the part of accused No. 2 and 3 beyond any reasonable doubt. 44. The trial Court has painstakingly analysed the materials available on record and arrived at a conclusion that all the accused are guilty of the offences for which they are charged. 45. This Court on an independent application of mind to oral and documentary evidences and on perusal of materials available on record, is of the view, that there is no infirmity, or error apparent on the face of the record in the conviction recorded by the trial Court. Thus, the prosecution has proved the guilt on the part of the accused beyond reasonable doubt. 46. The trial Court has placed reliance upon the judgment of this Court in (2001) MLJ (Cri) 1005 which laid down the proposition that the possession of stolen articles in the hands of the accused would help the Court to presume the guilt on the part of the accused under Section 114 of the Evidence Act who have been charged for robbery and murder. 47. In the decision rendered by the Hon’ble Supreme Court of India, AIR 2000 SC 2988 : 2000 SCC (Cr) 1516 : 2001 MLJ (Cri) page 34 which came to be decided on similar facts and those decisions are fully applicable to the facts of this case. The fact that the huge quantity of jewels were recovered in pursuant to the arrest and recovery coupled with the testimonies of witnesses, corroborate each other with regard to the arrest and recovery and identification had clinchingly proved the case of the prosecution beyond reasonable doubt. 48. The confession statement given by accused No. 5 under Section 164 of Cr.P.C. which has been marked as Exhibit P-59 implicates all the accused and specific role played by them and the said statement has not been retracted by accused No. 5. Since the said confession has been recorded under Section 164 of Cr.P.C, by the Judicial Magistrate after observing all formalities as contemplated under Cr.P.C, and in the absence of retraction, this Court is of the considered opinion that the said confession is also an additional factor to establish the guilt on the part of the accused. Since the said confession has been recorded under Section 164 of Cr.P.C, by the Judicial Magistrate after observing all formalities as contemplated under Cr.P.C, and in the absence of retraction, this Court is of the considered opinion that the said confession is also an additional factor to establish the guilt on the part of the accused. Thus, the prosecution has proved the guilt on the part of the accused beyond reasonable doubt and therefore, question No. (i) is answered in favour of the prosecution. 49. Question No. (ii) and (iii): In 1994 SCC (Cr) 358: (1994) 1 MLJ (Crl) 387 in paragraph 14 it has been held as follows at p. 398 of MLJ (Crl): “14. …In imposing sentences in the absence of specific legislation Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which thay consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the Courts respond to the society’s cry for justice against the criminals. Justice demands that Courts should impose punishment, befitting the crime so that the Courts reflect public abhorrence of the crime. The Courts must not only keep in view the rights of the criminal but also the tights of the victim of crime and the society at large while considering imposition of appropriate punishment.” 50. In a decision in (2007) 2 MLJ (Crl) 1622 (SC) the sentencing policy has been succinctly stated (2006) 3 SCC 771 : (2006) 1 MLJ (Crl) 638 has been extracted and the same is as follows: “7. The law regulates social interests, arbitrates conflicting claims and demands. Security of parsons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ‘order’ should meet the challenges confronting the society. FRIEDMAN in his Law in Changing Society stated that: ‘State of criminal law continues to be-as it should be—a decisive reflection of social consciousness of society.’ Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other, attending circumstances are relevant facts which would enter into the area of consideration.” 51. In the decision in 2007 Crl.L.J.4700 which pertains to the rape of 10 year old girl the Hon’ble Supreme Court of India after taking into consideration number of decisions, has held that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under, such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. 52. Keeping the ratio laid down in the above cited decisions in mind, this Court has considered the submissions made by the learned Additional Public Prosecutor for enhancement of sentence imposed on the accused in respect of the commission of the offence under Section 396 of IPC. 53. Section 396 of IPC reads an follows: “396. 52. Keeping the ratio laid down in the above cited decisions in mind, this Court has considered the submissions made by the learned Additional Public Prosecutor for enhancement of sentence imposed on the accused in respect of the commission of the offence under Section 396 of IPC. 53. Section 396 of IPC reads an follows: “396. Dacoity with murder: If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 54. It is the settled position of law as held by the Hon’ble Supreme Court of India in the decision in AIR 1997 SC 2186 when murder is committed by only one accused in the course of commission of dacoity, all the persons involved in the dacoity are guilty under Section, 396 df IPC. 55. As per the confession statement of A5, would disclose that A2 and A4 had committed the murder of watchman Muthukrishnan and A1, A3 and A5 robbed the Jewells. 56. The trial Court on a careful consideration and appreciation of oral and documentary evidences, has arrived at a decision that all the accused are guilty of the offences punishable under Section 457, 396 read with 34 of IPC. While imposing the sentence for the commission of the said offence, the trial Court has imposed sentence of 10 years in respect of commission of offence under Section 396 of IPC with fine and default sentence and in view of imposition of sentence under Section 396 of IPC, has not imposed any separate sentence for offence under Section 302 and 395 of IPC. 57. In the considered opinion of the Court, the said approach on the part of the trial Court is not proper considering the nature of gravity and the manner in which the offences were committed. The deceased was aged about 75 years at the time of his death and was carrying his avocation as watchman and his hands and legs were tied by jute rope and A2 tightly held his legs and A4 has strangled the neck of the deceased with one hand and constricted his nose and mouth with another hand and ultimately he died of asphyxia. Therefore, in all fairness, the trial Court, should have awarded R.I. for life to all the accused under Section 396 of IPC. Admittedly, all the accused were present at the time of the commission of the offence and the essence of offence under Section 396 of IPC is murder committed in commission of daicoity and in that event, every offender was liable for murder committed by one of them. Hence, it is proper and necessary to impose enhanced sentence on the accused. 58. Hence, the sentence of 10 years awarded by the trial Court under Section 396 of IPC is enhanced to R.I, for life imprisonment in respect of all the accused. Therefore, question Nos. (ii) and (iii) are answered in favour of the prosecution. 59. Question No. (iv): The trial Court in paragraph No. 29 of its judgment, has appreciated the efforts taken by P.W.37-Investigating Officer’s in catching, all the accused, getting their confession and recovery of huge quantity of jewels. However, in paragraph 30 of its judgment, it has taken into account, that the prosecution was not able to secure the presence of witnesses based at Mumbai who were concerned for the recovery of the jewels as identified by the accused No. 4 Babu @ Nawab Sahib. The trial Court has also taken note of the fact that in spite of efforts taken to produce those witnesses, the response was nil and in order to realize their responsibility, direction was made to pay a sum of ` 25,000/-each to the Welfare Fund of Hon’ble Chief Minister of Tamil Nadu. The said order of payment to be made by Superintendent of Police, Cuddalore District and Secretary to Government Home Department Government of Tamil Nadu. Hence the remarks are sought to be expunged by the prosecution by filing Criminal Original Petition No. 672 of 2006 on the ground that even though the trial Court has commended the efforts taken by the prosecuting agency especially P.W.37-lnvestigating Officer, ought not to have made such comments and ordered payment. 60. This Court, has also gone through the oral testimony of P.W.37 and it clearly reveals that he made hectic efforts in nabbing all the accused and recovered huge quantity of jewels stolen by them. 60. This Court, has also gone through the oral testimony of P.W.37 and it clearly reveals that he made hectic efforts in nabbing all the accused and recovered huge quantity of jewels stolen by them. No doubt the witnesses pursuant to recovery of jewels at Mumbai, based on the confession given by accused No. 4, were not secured and in spite of that the prosecution was able to secure conviction of accused No. 4 also. Therefore, non-production of witnesses from Mumbai, has not resulted in some lapses on their part. Hence this Court is of the view that remarks made by the trial Court, in paragraph No. 30 and consequent payments ordered to be paid by the Superintendent of Police Cuddalore District and Secretary to the Government, Home Department, Government of Tamil Nadu are to be expunged/set aside. Accordingly, Crl. O.P. No. 672 of 2006 is allowed. 61. In the result, Crl. A. No. 69 of 2005 filed by the State is allowed and the sentence of imprisonment 10 years of R.I. awarded by the trial Court under Section 396 of IPC in respect of all the accused, is enhanced to R.I. for life and in all other respects the conviction and sentence recorded by the trial Court, is confirmed. 62. Crl. A. No. 1096 and 1097 of 2006 filed by accused No. 2 and 3 are dismissed. Consequently, connected Miscellaneous Petitions are closed. 63. The period of imprisonment undergone by the accused during investigation/trial are ordered to be set off in terms of Section 428 of Cr.P.C.