C.M. Lodha, J.

1. These are two connected matters arising out of the judgment dated 31-1-1977 by the Sessions Judge, Gwalior in Sessions Cases Nos. 157 to 165 whereby the accused Sarveshwar Prasad Sharma has been convicted under Section 302, Indian Penal Code for committing nine murders and sentenced to death. The learned Sessions Judge has made reference to this Court under Section 366, Code of Criminal Procedure for confirmation of the death sentence which is registered as Death Reference. No. 1 of 1977. The accused has also filed appeal from the conviction and sentence. This order will dispose of both.

2. The accused is B.A.M.S. and is qualified medical practitioner. The prosecution case is that he was a close friend of the deceased Ram Swaroop and used to visit the latterss house very frequently. The houses of the accused as well as the deceased are situated in the same locality called Khallasi Pura or Shinde-Ki-Chhawani, Lashkar in the city of Gwalior. The financial position of the accused, it is alleged, was very bad so much so that he was leading a life of utter frustration. The deceased Ram Swaroop was employed as an Upper Division Clerk in the Madhya Pradesh Girls N.C. Battalion, at Gwalior. He also used to practice Homeopathy as his hobby. Thus medicine being the common interest of the accused as well as the deceased Ram Swaroop they became thick friends. It is stated that in order to purchase a motor-cycle Ram Swaroop withdrew Rs. 2,400 on 6-3-1976 and Rs. 840 on 13-5-1976 out of his G.P. Fund. He also received a sum of Rs. 348 on account of surrender leave on 1-5-1976, and Rs. 271 on account of salary on 2-7-1976. Besides the aforesaid amounts Ramswaroop withdrew Rs. 3,495 on 26-6-1976 out of his Savings Bank Account with Indian Overseas Bank. Ram Swaroops father Mool Chand deceased is also alleged to have withdrawn Rs. 800 from his Savings Bank Account with Bank of India, Gwalior Branch on 16th June 1976. Thus according to prosecution there was considerable cash lying in the house of Ram Swaroop at the relevant time. Besides cash, there was also a few ornaments belonging to Ram Swaroops mother and wife lying in the house. The prosecution story is that to steal away the cash and the gold and silver ornaments lying in the house of the deceased, the accused committed murders of all the nine members of Ramswaroops family on the night intervening 4th and 5th July 1976. First, the accused and the deceased Ram Swaroop took liquor inside the room and when Ram Swaroop was heavily drunk and fell down unconscious, the accused gave a fatal blow with the wrong side of an axe on his head. Then his wife Smt. Bhagwati Bai who was on the terrace came down to see the condition of her husband and when she bent down to look at him, the accused gave a blow on her head and then strangulated her with a string (Nada). Then came Ram Baboo, son of Ram Swaroop to enquire about; Ram Swaroops condition and lie also met the same fate at the hands of the accused. Thus all the members of the family excepting the child Simla the youngest daughter of Ram Swaroop came one by one and met death at the hands of the accused. Lastly the accused brought down the infant daughter Simla from the terrace and finished her also. Thus the accused wiped out the whole family by committing murders of all the nine members of the family mentioned below:--

Deceased

1. Mool Chand aged 60 years.

2. Smt. Govindi Bai, wife of Mool Chand aged 60 years.

3. Ram Swaroop son of Mool Chand aged 45 years.

4. Bhagwati Bai wife of Ram Swaroop aged 35 years.

5. Ram Baboo son of Ram Swaroop aged 16 years.

6. Ghanshyam alias Pappu, aged 13 years.

7. Hemlata daughter of Ram Swaroop aged 10 years.

8. Bimla daughter of Ram Swaroop aged 5 years.

9. Simla daughter of Ram Swaroop aged 3 years.

3. After having done to death all the nine members of the family, the accused piled up their bodies in the room and then collected the booty consisting of cash, ornaments, clothes etc., belonging to the deceased and then went to his house after putting locks on the house of the deceased. On 6-7-1976 the residents of the locality felt a foul smell on account of the putrified corpses. They suspected that some animal may have died inside the house of Ram Swaroop and that may be the reason for the foul smell. But since the house was locked they could not do anything and ultimately one Ram Gopal Upadhyaya, P.W. 1, a resident of the locality went to the Police Station, Indraganj at about 8.00 P.M. and made a report about the unbearable foul smell coming from the locked house of the deceased. P.W. 38, Harendra Prasad Singh, Incharge, Police Station Indraganj, went to the spot, broke open the locks of the house and found that all the nine members of the family, including the children, were lying dead and the house and also been ransacked and the boxes and almirahs thrown open. In the course of investigation his suspicion was aroused against the accused who was sent for and on his information cash amounting to Rs. 4,600 and a number of ornaments belonging to the deceased, as also a few other articles, were recovered at his instance from his house. Thus after collecting the necessary evidence the police prosecuted the accused for the nine murders. The accused denied having committed any offence and examined his father-in-law, D.W. 1 in defence to prove that his finances were not bad. The learned Sessions Judge, Gwalior held that the prosecution had succeeded in establishing beyond doubt that the accused had committed the nine murders and in the result convicted and sentenced the accused as stated above.

4. That all the nine members of the family of the deceased were killed is a matter beyond doubt. Dr. Deochand Jain, P.W. 36, Head of the Department of Forensic Medicine, Medical College, Gwalior, performed post-mortem examination over five dead bodies viz., those of Ghanshyam alias Pappu, Mool Chand, Bhagwati Bai, Ram Swaroop and Ram Babu on 7-7-1976 from 10.00 A.M.

5. P.W. 37, Dr. Vijai Kumar Dewan, Medico Legal Officer of the same hospital performed autopsy on the dead bodies of Shrimati Govindi, Simla, Bimla, and Hemlata on the same day from 10.00 A.M. inwards. The injuries found on the person of the deceased are noted below:--

1. Ghanshyam

1. Lacerated wound, 2" x 1/2" on the right temple.

2. Lacerated wound, 2" x 12" on the left parietal region.

3. Lacerated wound, 1" x 1/2" on the midvault.

2. Moolchand

1. Lacerated wound, 2" x 1" on the left temple.

2. Lacerated wound, 2" x 1" on the right temple.

3. Bhagvmtibai

1. Ante-mortem ligature mark below the thyroid cartilege on the neck, circular and complete. The Nada of the petticoat was tried on the neck corresponding to the iegature mark which was cut (by the doctor).

2. Lacerated wound 2" x 1", on the left temple.

3. Lacerated wound 1 1/2" X1", on the right temple.

4. Ram Swaroop

1. Lacerated wound, 2" x 1", on the right temple.

2. Lacerated wound, 1"x 1", on the middle of the forehead.

5. Ram Babu

1. Lacerated wound 2" x 1", on the left temple 2. Lacerated wound 1 1/2" x 1", on the right temple.

6. Govindi Bai

1. Lacerated wound 2 1/2" x1 1/2" over right parieto temporal region with bone piece depressed,

2. Lacerated wound 1 1/2" x 1 1/2" x 1 1/2", over left parieto temporal region with bone piece depressed.

3. Contused abrasion, 2 1/2" x 1 1/2", over left side of the chest anteriorly in the middle.

7. Simla

1. Lacerated wound, 1 1/2" x 1 1/2" X1 1/2", over right frontal region with depression of the bone.

2. Lacerated wound 2" X 1 1/2" X 2", over left frontal region with depression of the bone.

3. Abrasion, 1 1/2" x1 1/2", over the left side of the chest anteriorly in the upper part.

8. Vimla

1. Lacerated wound, 1"x 1/2" X1", over right temporal region,

2. Lacerated wound, 1 1/2" x 1/2" X1", over right frontal region.

3. Lacerated wound, 1 1/2"X 1/2"x1", over left frontal region.

4. Lacerated wound, l 1/2" x 1/2"X1",over left parietal region.

9. Hemlata

1. Lacerated wound, 1 1/2" X 1/2", over right frontal region-. Brain matter was coming out.

2. Lacerated wound, 2 1/2"x 1/2", over right temporal region. Brain matter was coming out.

Lacerated wound, 2"x 1/2" X 1 1/2", over left zygomatic region.

6. Both the doctors have deposed that the victims must have died two to three days before the post-mortem examination and the injuries found on their person were sufficient in the ordinary course of nature to cause death. It is not disputed that all the nine bodies were found lying in the house of the deceased and they were members of the same family living in the same house. From the nature of the injuries found on the dead bodies it is further clear that the modus operandi of killing all the nine deceased was the same. It also appears that a similar weapon was used for killing all of them. of course in the case of Bhagwati Bai besides inflicting injuries to her a nada (string used for tying petticoat) was also used for strangulating her. Thus we have no reason to doubt that all the nine inmates of the house including the children were done to death in a similar manner and at or about the same time.

7. The question, then, is whether the accused was the perpetrator of these murders and whether the prosecution has succeeded in bringing home guilt to the accused beyond all manner of reasonable doubt.

8. There is no direct evidence and the case depends upon circumstantial evidence. We have, therefore, to see whether the prosecution has succeeded in establishing such circumstances as unmistakably point to the guilt of the accused and are explicable only on one hypothesis viz., that the accused and the accused alone committed these murders.

9. We shall now address ourselves to the circumstantial evidence produced against the accused.

10. The first piece of evidence is that the deceased Ram Swaroop was shy by nature. He had not many friends and his only confident was the accused. On this point there is the evidence of P. W 3 Hari Singh and P.W. 6 Ramsingh. P.W. 3 Hari Singh states that his house is opposite to that of Ram Swaroop and he knew Ram Swaroop very well. Ram Swaroop was a simple fellow and was not at all social. He used to meet few people and had no enmity with anybody. He has also stated that Ram Swaroop and the accused were friends and both of them used to practise medicine. P.W. 6 Ram Singh is younger brother of Hari Singh and lives jointly with him. He states that he had seen the accused alone visiting Ram Swaroop and no body else. He also states that the accused and Ram Swaroop were friends and Ram Swaroops son used to call the accused Dr. uncle (Dr. chacha). In the cross-examination he has further stated that he had seen the accused many times visiting Ram Swaroop. Even the accused in his statement under Section 342, Code of Criminal Procedure has admitted that Ram Swaroop was his friend. Thus it is established that the accused was a frequent visitor to Ram Swaroop and was his close friend. From this fact it will not be unreasonable to presume that the ins and outs of Ram Swaroops house must not be unknown to him.

11. The second circumstance proved against the accused is that the deceased Ram Swaroop was last seen in company of the accused at about 10.00 in the night of 4th July 1976 at the formers house and thereafter Ram Swaroop was not seen alive. P.W. 3 Hari Singh, as already stated above, was a neighbour of Ram Swaroop and used to drive a tempo. He has stated that on Sun-day falling on 4-7-1976 he saw the accused and the deceased Ram Swaroop sitting on a Patiya outside Ram Swaroops house, when he came out of his house to take out the tempo for plying. The witness further states that when he returned in the night at 10.00 P.M. again he saw the accused and Ram Swaroop sitting on the chabutra of Ram Swaroops house and talking to each other and then within his seeing, both went into Ram Swaroops house and the witness took his food and slept. The witness goes on to state that he saw Ram Swaroops house locked in the next morning i. e. on Monday and so he thought that Ram Swaroop may have gone to his relations. He found Ram Swaroops house locked in the evening also when he returned after plying the tempo during the day. The witness has further stated that on the next day i. e. on Tuesday when he was taking out the tempo he felt a bad smell in the surroundings but went away with an impression that the sweepers might have thrown carcasses of dogs or cats nearby. The witness has also deposed that in the evening of Tuesday i. e. on 6th July 1976 when he returned at about 10 or 10.30 P.M. he saw a police party in Ram Swaroops house from which an unbearable foul smell was coming. The accused has denied that he had gone to the house of Ram Swaroop on 4th July 1976.

12. We have carefully gone through the statement of Harisingh P.W. 3. Nothing has been brought out in his cross-examination to discredit his testimony. He has no animus against the accused. We are satisfied that the deceased Ram Swaroop was last seen in the company of the accused when both of them entered the house of Ram Swaroop and thereafter Ram Swaroop was not seen alive.

13. In this connection we may also refer to the statements of P.W. 1 Ram Gopal and P.W. 8 Bhagirath. P.W. 1 Ram Gopal states that he was residing in a house opposite to that of Ram Swaroop at the relevant time and he had seen Ram Swaroop and all the members of his family taking their food on the terrace of their house and thereafter in the next morning he saw Ram Swaroops house locked and then on Tuesday i. e on 6th July 1976 the residents of the locality felt that there was something stinking in Ram Swaroops house and thereupon he informed the police of this fact. The report made by him at police station Indraganj was reduced to writing by P.W. 38 Harendra Prasad Singh and is marked Ex. P-l. P.W. 8 Bhagirath has stated that his house is also very near to that of Ram Swaroop inasmuch as there were only three houses in between the two. He says that on 4th July 1976 he met Ram Swaroop at about 8.00 or 8.30 P.M. and on being questioned by him, Ram Swaroop said that he had been to Laxman Talaiya (residence of the accused). The evidence of these two witnesses shows that the deceased Ram Swaroop was last seen alive in the evening of 4-7-1976.

14. The third circumstance relied upon by the prosecution is that in the early hours at 3 or 4 A.M. on the night between 4th and 5th July 1976 the accused was seen proceeding towards his house with a satchel and a bedding. On this point there is the statement of P.W. 4, Chhote who states that his. house is just near the house of the accused which is called Laxman Talaiya. It may be stated here that the accused is living in a subtenarean apartment of a temple of Hanuman Ji situated at a distance of about one furlong from the house of the deceased. The place, where the accused is living is called Laxman Talaiya. Laxman Talaiya is at a higher level than the house of the deceased Ram Swaroop. The house of P.W. 4 Chhote is situated at the steps of Laxman Talaiya. P.W. 4 Chhote is a hawker. He sells fruits in a push-cart (thela). He has stated that he always gets up early in the morning at 3 to 4 A.M. and after finishing his morning routine and bath he goes to the fruit market to purchase fruits. He goes on to state that about 4 months before his statement was recorded (date of his statement is 4-6-1976) he was sleeping on a cot out-side his house. He woke up between 3.00 and 4.00 A.M. and saw the accused passing by his side and going towards his house. He was carrying a satchel and a bedding in his hands. He further states that he recognised the accused in the electric light of the lamp post. He states that he did not talk to the accused as he thought that the accused might have gone out of station and had returned. The witness says that he disclosed this fact to the police on Wednesday the 7th July 1976 when he came to know that Ram Swaroop and his family had been murdered and the stolen property belonging to Ram Swaroop had been recovered from Ram Swaroops house. In the course of cross-examination the witness has stated that the satchel was of white colour and the bedding was of Khaki colour. The learned counsel for the accused has criticized the evidence of this witness on the ground that the satchel and the bedding had not been got identified by this witness. We do not find any substance in this criticism because it was not possible for the witness to have minutely marked the satchel and the bedding on a momentary glance in the night so as to be able to identify them. No other substantial criticism has been directed against this witness. The accused has, no doubt denied the fact deposed to by this witness but we see no reason to reject his testimony and hold that the prosecution has succeeded in proving this circumstance.

15. The fourth and the most important circumstance, the prosecution has tried to establish against the accused is recovery of cash, ornaments, clothes and other articles belonging to the deceased from the house of the accused on the information supplied by him.

16. P.W. 38 Harendra Prasad Singh investigating officer has stated that after carrying out necessary investigation at the spot he sent for the accused on 7-7-1976 at about 1.15 A.M. The accused was brought before him at about 10.00 A.M. In the course of investigation the accused gave information to him that he had concealed the currency notes worth Rs. 4,600, three hanslies (type of necklace), Kardhoni (ornament worn by the ladies on waist), a pair of gold bangles, gold mohar, Bali (ear-ring) wrist watch, Todiya (silver anklets), Hamel (ornament of silver) etc., in a satchel and also a bedding, clothes, a suit etc., in his apartment at Laxman Talaiya. He further stated that the keys as well as the axe were lying in a box in the Pater of his residence which was used for cooking food and that he was prepared to produce all these articles. He also stated that his Baniyan stained with blood was lying in the kothari and he would produce that also. Harendra Prasad Singh reduced this information to writing in the presence of one Moolchand and Rup Singh P.W. 12. The memo of information is marked Ex. P-33 and it has been proved by P W. 38 Harendra Prasad Singh and the attesting witness P.W. 12 Rupsingh. At this stage we may observe that the trial Court struck out certain portions in Ex. P-33 holding that it amounted to confession to the police. We may, however, point out that the information part which related distinctly to the fact thereby discovered should not have been scored out, as under Section 27 of the Indian Evidence Act, so much of the information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved. Harendra Prasad Singh further states that the accused took him to Laxman Talaiya where he was living and after taking out a key from his pocket unlocked the basement of the temple and after removing a piece of cloth spread out in a corner of the room, he produced a white satchel marked Article P which contained currency notes of Rs. 4,600 and also two small boxes (Dibbas used for putting ornaments). These two boxes have been marked Article Ex. Q and Ex. R Both the boxes contained ornaments. A number of articles produced by the accused were seized. The seizure memo is Ex. P-34. It was prepared by Harendra Prasad Singh and was attested by Moolchand and Rupsingh P.W. 12. In all 46 Articles as mentioned below were seized:--

Rs. P

1.

46 Currency notes of Rs. 100 each

...

4,600

2.

One pair of Karan Pool --

Costing

about

300

3.

One gold prick -

-do-

150

4.

Two gold mohars -

-do-

1,600

5.

A pair of gold bangles in small tin box

-do-

1,000

6.

One pair of small ear-rings.

-do-

550

7.

One pair of gold rings broken and worn out.

-do-

300

8.

One pair of gold Jhumki

... -do-

300

9.

Three gold wire Balias with one pearl

and pendant studded with red & white stone.

-do-

400

10.

One nail cutter

.... -do-

1

11.

Five pearls wrapped in a piece of paper.

-do-

500

12.

One silver Karghoni.

-do-

500

13.

A bunch of keys in a key chain of silver along

with a knife.

-do-

40

14.

A pair of silver anklets.

-do-

70

15.

One pair of silver anklets for children.

-do-

42

16.

One pair of black silver anklets

-do-

42

17.

Six silver toe rings.

-do-

100

18.

A pair of silver Paija

-do-

400

19.

One silver Karghoni (with stains of human blood),

-do-

450

20.

Four silver Talisman (Tabiz)

-do-

20

21.

Twelve Small Bangles of wire

-do-

10

22.

One silver chain.

-do-

20

23.

Three copper Paise and one green coloured rupee.

-do-

2

24.

14 Silver coins of George v.

-do-

195

25.

One old copper coin.

-do-

00-10

26.

One plastic case for watch

-do-

00-90

Rs. P.

27.

One H.M.T. Wrist Watch, Janta make

-do-

125

28.

One gold Khangari

-do-

120

29.

A pair of silver Bajuband

-do-

500

30.

Two silver Khangwari.

-do-

900

31.

One silver Khangwari

-do-

500

32.

One silver Hamel.

-do-

500

33.

One KaranPhool

-do-

200

34.

one pair silver Chura.

-do-

250

35.

Six silver rings.

-do-

84

36.

One silver Chura (small)

-do-

25

37.

One pair of small Chura of silver

-do-

25

38.

One silver Tabezia.

-do-

5

39.

One white satchel

-do-

2

40.

One small bedding

-do-

10

41.

One old woolen suite

Costing about

250

42.

One black coat of Terrene of boy size.

-do-

100

43.

One white shirt Terrene

-do-

40

44.

One new piece of markin cloth

-do-

17

45.

One Bracery of white poplin.

-do-

2

46.

One yellow coloured blouse.

-do-

5

We shall presently refer to some of these articles which have been identified as belonging to the deceased.

17. After the articles lying in the basement which was in the exclusive possession of and under the lock and key of the accused had been seized, the accused took the party to the Pator where a wooden box was lying. The box had also a lock on it but since it had a hole on the top the accused took out the iron part of an axe by putting his hand into it without opening the lock. Some hair were sticking on the blade of the axe and there also appeared some stains of blood on it. Thereafter the accused took out a pair of keys tied in a thread from the same box. The keys have been marked Article M and Article N The axe has been marked Article B. The seizure memo of the axe and the pair of keys was also prepared by Harendra Prasad Singh. It is marked Ex. P-35. The accused then produced his Baniyan from the basement. It had also blood stains. The seizure memo of the Baniyan is Ex. P-36 and it has been marked Article D.

18. Out of the articles recovered from the basement, silver Hansli marked Article N and identified by P.W. 9 Pannalal, son-in-law of the deceased Moolchand, P.W. 14 Laxmibai, P.W. 15 Kamla Bai and P.W. 16 Bhuribai, daughters of the deceased Moolchand and P.W. 17 Parmar as belonging to the deceased Govindi Bai, had stains of human blood.

19. The articles recovered were properly sealed on 12-7-1976. P.W. 18 Naib Tahsildar and Executive Magistrate, Bhagirath Yadav held identification proceedings with respect to the articles on 29-7-1976 during which the witnesses were called upon to identify the articles. The identification Memos are Ex. P-22 and P-23. In the course of identification proceedings silver Bajuband Article H, two Hanslies of silver, Article M and N, one silver Kargoni Article 1-1, silver Hamel of silver coins Article T were identified by P.W. 9 Pannalal, P.W. 14 Laxmibai, P.W. 15 Kamla Bai, P.W. 16 Bhuribai and P.W. 17 Parmar as belonging to the deceased Govindi Bai. Wrist watch Article F gold plated Khangari Article G Silver Khangari Article H were also identified as belonging to the deceased, by all the aforesaid witnesses except Parmar. As already pointed above, Kamlabai, Laxmibai and Bhuribai are the daughters of the deceased Moolchand and there is nothing unusual if they identified the aforesaid articles as they must have had ample opportunity to see them distinctly. These witnesses identified the above mentioned articles in the Court as well. The accused does not claim these articles to be his own. His statement under Section 342, Code of Criminal Procedure is to the effect that he neither gave any information to the police regarding the existence of these articles nor he got them recovered from his residential kothari. The fact of his giving information to the police vide memo Ex. P-33 and so also the fact of recovery of the articles mentioned in Ex. P-34 and P-35 are, in our opinion, fully established by the evidence of P.W. 38 Harendra Prasad Singh and P.W. 12 Rupsingh.

20. The learned counsel for the appellant has assailed the prosecution evidence regarding the identification of the articles on the ground that the witnesses who have identified them have given no distinctive marks on the basis of which they have identified them. He has farther submitted that since the other witness to the information and the recovery viz., Moolchand has not been produced, every adverse inference must be drawn against the prosecution.

21. We are satisfied that the criticism advanced by the learned counsel for the appellant has no force. No adverse inference can be drawn against the prosecution for not producing Mool Chand inasmuch as we have clear and convincing evidence of the investigating officer Harendra Prasad Singh and P.W. 12 Rupsingh that the accused gave the information which was reduced to writing marked Ex. P-33 and the accused got the articles recovered from the kothari which was under his lock and key. If the accused wanted to demolish their evidence by examining Mool Chand, he could have produced him. It was not necessary for the prosecution to have produced all the witnesses to the recovery. No reason worth consideration has been pointed out to us for not believing the statements of Harendra Prasad Singh and Roop Singh. The suggestion made by the learned counsel that the articles and the cash may have been implanted by the Police in the kothari occupied by the accused appears to us preposterous and without any foundation. It is impossible to believe that after the crowd had collected at the house of the deceased and the house had been searched, the police would collect the articles-all and sundry from house and throw them into the kothari of the accused to entrap him and create evidence against him.

22. The other contention raised by the learned counsel is that sufficient number of articles were not mixed with the articles in question and no distinctive marks were pointed out by the witnesses who identified them is also devoid of force. It appears from the identification memos Ex. P-22 and P-23 prepared by Shri Bhagirath, Executive Magistrate that with each of the articles identified by the witnesses, a number of other articles were mixed up so as to ensure that the identification was not a farce. As regards absence of particular identifying marks on the articles, we may point out, that in advancing this criticism it is forgotten that small and even nice points of difference distinguishing one thing from others of the same kind may merely by the frequent sight of them and without any special attention to them make an impression of the mind. They are competent parts of the thing and go on to make the whole of which the mind receives an impression. In this case the impression is the general appearance of the thing. This sort of impression is exceedingly common; a workman has it of his tools and most people have it of their clothes, ornaments and other things they are frequently seeing, handling or using. It occurs every day that by remembrance of their general appearance a person recognises his tools, dress, ornaments and other property. Observation teaches that such identification may be safely relied upon. At the same time, a witness would not be able to formulate his reasons for the identification since it is based upon general untranslatable impressions of the mind. It would, therefore, be fatuous to discredit such identification on the ground that reasons are not being formulated for them.

23. In the present case, the witnesses who have identified the ornaments and other articles are close relations of the deceased and had ample opportunity of seeing them. Three of them are daughters of Govindi Bai. Pannalal is her son-in-law and Parmar is Govindi Bais brother. It is not the case of the accused that these articles belonged to him. On the other hand, he denies the fact of producing them and does not claim his ownership to them. Therefore, when it is found that the close relations of the deceased had identified the articles as belonging to the deceased by their frequently seeing and handling them, it would be most unjust to reject their testimony on the ground that sufficient number of similar articles were not mixed at the time of identification parade for these articles and that reasons have not been formulated by these witnesses for identifying them. Therefore, it may be taken as safely and fully established that the properties mentioned in Ex. P-34 were produced by the accused from his kothari which was under his lock and key and were identified during investigation as well as in the Court by the aforesaid witnesses as properties belonging to the deceased.

24. Then we have to deal with the recovery of the axe and the pair of keys from the box lying in the pator of the accused. We do not see any reason to doubt this recovery either.

25. It may be pointed out here that a few human hair were found sticking on the axe vide Chemical Analysers report Ex. P-78 at page 180 of the Paper-Book. This shows that the axe recovered from the possession of the accused had come in contact with human body. Then we have the evidence of Harendra Prasad Singh, P.W. 38 that the pair of keys recovered from the box lying in the pator fitted in the two locks broken open and removed from the house of the deceased. We do feel that the prosecution could have examined better evidence on the point by producing a lock repairer, but, we had sent for the locks and the keys for our inspection and found that the keys fitted in the two locks alleged to have been recovered from the house of the deceased.

26. Before closing discussion regarding the recovery of the articles, we may make mention of one more point which was debated before the lower _ Court and regarding which an argument was advanced before us also. P.W. 15, Kamla Bai furnished a list of particles (Ex. P-51) on 6-7-1976 at the spot to Harendra Prasad Singh after he had discovered the corpses of the deceased. This list has been proved by P.W. 15 Kami a Bai, (daughter of the deceased Moolchand) and the scribe Motilal P.W. 31. An objection was raised regarding the admissibility of this document. The learned Sessions Judge held that it was admissible as a supplementary to the first information report. We only wish to point out that nothing substantial turns upon this argument inasmuch as even the list Ex. P-51 does not contain the detailed description of the ornaments with the result that the identity of the articles cannot be established from it. As already mentioned above, the house was found ransacked and the boxes lying therein thrown open. It is, therefore, apparent that some articles lying in the house were stolen and all the inmates of the house were killed. In view of the fact that we have held that the recovered articles belonged to the deceased, it is immaterial whether the list Ex. P-51 submitted by Smt. Kamla Bai is held to be admissible or not.

27. One more fact which needs to be mentioned in connection with the recovery of the articles is that silver Hansli Article N was found to be stained with human blood vide Chemical Analysers report Ex. P-75 and Serologist report Ex. P-77. We may also mention here that the axe Article Ex. B was also found stained with blood vide Chemical Analysers report Ex. P-75 but its origin could not be traced vide Serologist report Ex. P-77.

28. The next circumstance proved against the accused is that the finger prints of the accused were found on a brass pitcher (Kalash) Article Ex. P-38 and a plastic case of a watch Article Ex. D. lying in the house of the deceased. P.W. 24 Shivcharan Singh has stated that these finger-prints tallied with those of the specimen finger prints of the accused. P.W. 38 Harendra Prasad Singh and P.W. 8 Bhagirath have both stated that impressions of finger prints were discovered by them at the spot when these articles were recovered and consequently these articles were sealed after wrapping them in cotton. Ex. P-39 and P-40 are the specimen of finger-prints of the accused Ex. P-41 and P-42 are the duplicate photos of the specimen finger prints taken by P.W. 23 Kejitah Stiphan Rejal. P.W. 24 Sengers report Ex. P-45 has been placed on the record.

29. After going through the reasons given by P.W. 24 Sengar in support of his findings we are satisfied that the finger prints on the articles marked No. 22 and 25 were those of the accused. However, this circumstance may not point to the guilt of the accused as it is explicable on the hypothesis that, since it is the prosecution case that the accused was a frequent visitor to the house of the deceased, he may have handled these two articles at any time other than the time of occurrence and, therefore, his finger-prints may be there. From this circumstance, it cannot be necessarily inferred that he handled them at the time of the murders. Therefore, we do not consider it safe to press into service this circumstance.

30. The last circumstance relied upon by the prosecution is that the accused was in a bad financial position. He was hard-pressed for money and, therefore, he committed the murders in order to take away the cash, and the ornaments from the house of the deceased. The circumstance is being pressed into service by the prosecution to prove the motive for the crime. It is established by the statements of P.W. 19 Dinesh Chand Gupta, P.W. 20 Dayaram, P.W. 21 Mohan Chandra, P.W. 33 Nandlat, P.W. 34 Darshanlal and P.W. 35 Bengali Babu that the financial position of the accused was not happy ever since he was married in March 1971, so much so, that he had pledged the ornaments of his wife to meet his day-to-day expenses. It further appears from Ex. P 20 and the evidence of P.W. 28 Puroshottam Sharma that on 11-7-1976 the accused had sold a cycle in the name of Ram Swaroops son for Rs, 162. The letters Ex. P-3 and P-7 proved to have been written by his wife also go to show that the accused was not able to make his living and was in a tight financial position. This fact is, therefore, relevant to the extent that it proves that the accused was in need of money. He knew of the existence of cash and ornaments in the house of the deceased. Consequently he had a motive for committing the offence.

31. The learned Sessions Judge has held that the cumulative effect of all the circumstances is that the accused is the culprit who had committed the murders. The most important circumstance, in our view, is the recovery of the stolen articles including cash and ornaments from the exclusive possession of the accused on the third day of the murders and soon after the accused was interrogated. The question is whether or not from this recovery coupled with other circumstances an inference can be drawn that the accused was the murderer. We are of opinion that the circumstances do indicate that the theft and the murders must have been committed at the same time.

32. In Washim Khan v. The State of Uttar Pradesh A I R 1956 S C 400 the accused was found in possession of goods belonging to the deceased three days after the deceased had been last seen alive. The charge framed against the appellant was of murder and robbery. The question was how far recent possession of property of a deceased, in the circumstances clearly indicating that he had been murdered and robbed would suggest that not only the possessor of the property was a thief or a receiver of stolen property, but that it also indicated that he was guilty of a more aggravated crime which had been connected with the theft. In this connection their Lordships quoted the following passage from Wills On Circumstantial Evidence:--

The possession of stolen goods recently after the loss of them, may be indicative not merely of the offence of larceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been connected with theft. This particular fact of presumption commonly forms also a material element of evidence in cases of murder; which special application of it has often been emphatically recognized.

Their Lordships also quoted with approval the following passage from Queen Empress v. Sami 13 Mad. 426, at P. 432 (B).

Under these circumstances, and in the absence of any explanation, the presumption arises that anyone who took part in the robbery also took part in the murder. In cases in which murder and robbery have been shown to form parts of one transaction, it has been held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of tobbery would similarly be evidence against him on the charge of murder. All the facts which tell against the appel-lant, especially his conduct indicating a consciousness of guilt, point equally to the conclusion that he was guilty as well of the murder as of the robbery....

33. Thus the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or receiving with guilty knowledge but of any other more aggravated crime which has been connected with the theft; this particular fact of presumption forms also a material element of evidence in the case of murder.

34. In Tulsiram Kanu v. The State : A I R 1954 S C 1 Kania C J. observed as follows:--

If ornaments ot other things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case.

35. Again in Sunderla v. The State of Madhya Pradesh : A I R 1954 S C 28 the facts were that both the accused and the deceased were seen together shortly before murder. Immediately after the alleged murder the accused went to a dealer with certain ornaments identified as those which were habitually worn by the deceased and offered to sell them to him. The accused was not in a position to give any satisfactory explanation as to how he came to be in possession of the same on the very same day on which the alleged murder was committed. The circumstantial evidence was held to be sufficient to convict the accused for the murder.

36. There is yet another case of the Supreme Court to which we may usefully refer--Ram Bharosey v. State of Uttar Pradesh : A I R 1954 S C 704 wherein their Lordships were pleased to observe that the appellant had disappeared from his house and when he was brought back under arrest he produced the articles from the kothari and, therefore, it was difficult to accept the view as contended for by the appellant that he might have been merely a receiver of the stolen property.

37. Thus the law is well settled that where murder and robbery are proved to have been integral parts of a certain transaction, the presumption that can be drawn from the possession of the property may consistent with all the facts proved in the case be that the person to whom such possession was traced not only committed the theft thereof but also committed the murder which forms part of the same transaction as theft. of course, before any such presumption can be drawn, the primary thing to be proved is that the accused bad no satisfactory explanation to offer for possession of the property.

38. Learned counsel for the accused has relied upon Sanwat Khan and another v. State of Rajasthan : A I R 1956 S C 54 in support of his contention that it would not be safe in the present case to draw the inference that the accused found in possession of the stolen property was also the murderer. We may, however, observe that the case of Sanwat Khan (Supra) is distinguishable on facts. In the first place the recovery of the stolen article was a solitary circumstance in that case. Besides that the offence took place on the morning of 1-1-1948 and only a single article out of many viz., a silver plate was recovered from the house of the accused 17 days thereafter i. e. 18-1-1948.

39. We may, here, point out that whether the presumption of the aggravated crime can be drawn in a particular case depends upon the facts and Circumstances of each case. In the present case the ornaments and other articles of the deceased were found in the possession of the accused soon after the murders had taken place and he has no satisfactory explanation to offer for his possession of the stolen property. We have already held that the plea taken by the accused that the police had implanted these articles in his house is palpably false. In our opinion, the recovery of the stolen articles soon after the murders coupled with the other circumstances proved in the case leaves no manner of doubt that the accused is not only the thief but also the murderer of the nine members of the family.

40. It is important to bear in mind that it is not a case of recovery of a solitary article or two belonging to the deceased, from the possession of the accused, but it is a case where no less than 46 articles owned and possessed by the deceased including cash of Rs. 4,600 have been recovered from the accused. It is well-nigh impossible to believe that during two days intervening the murders and the recovery of the property, these articles may have been passed from the real culprit to the accused, and therefore, the accused is only a receiver of stolen property. We are, therefore, of opinion that the charge of murdering all the nine persons is established against the accused beyond all manner of doubt.

41. The next question to consider is whether we should confirm the sentence of death awarded to the accused. The accused was a trusted friend of the deceased Ram Swaroop. But, for achievement of his vicious object to relieve him of his cash and valuables he not only killed Ram Swaroop but also exterminated his whole family including his aged parents, his wife and five children two of whom were infants aged five years and three years respectively. He committed these blood-chilling murders of the nine innocent persons for monetary gain and to destroy the evidence of the crime he had committed. It is difficult to find words strong enough to condemn these gruesome and dastardly murders. Ironically the accused chose not to spare even the two infant daughters of Ram Swaroop who dearly used to address him as Dr. Chacha and were incapable of giving evidence even if they had been left alive. The tragedy has few parallels. The accused was neither demented nor mentally sick. There are absolutely no extenuating circumstances for passing a lesser sentence. On the other hand, the case, in our opinion, is eminently fit for imposing the extreme penalty of law.

42. In the result we dismiss the appeal filed by the convict and confirm his conviction and sentence of death awarded to him under Section 302, Indian Penal Code for each of the nine murders. We also accept the Reference made by the Sessions Judge and confirm the sentence of death awarded to him and direct that the convict Sarveshwar Prasad Sharma shall be hanged by neck till he is dead. The sentence shall be carried out in accordance with law.