MEHTA, J. - (1.) MST. Ghisi, a resident of village Pipalwara, Tehsil Boli, District Sawai Madhopur, was the widow of Laxmi Narain. Her husband died more than 30 years ago. MST. Ghisi had no issue. On Laxmi Narain's death Ram Sahai had been adopted by her. He too died after sometime. Later on, Shiv Dayal P. W. 1 had been adopted by her about 20 years back. Ghisi engaged herself in money lending business. She also earned a part of her livelihood by spinning. For some time she had lived jointly with her son Shiv Dayal. Thereafter her relations with her adopted son's wife got strained. She, therefore, started living separately. MST. Ghisi used to put on gold earrings (auganias), Arts. 12 and 22, in her ears and gold 'tant' around her neck. She also possessed silver ornaments like 'bajji' 'aanvales' 'bangris', Malhatis', 'karas', 'kanthis', 'pholris' etc. The latter ornaments she used to wear on marital or festival occasions. She put in safety the silver ornaments in a pit near her 'kotha'. 200 old silver coins she kept concealed in a pit near the threshold or entrance of her house. It is alleged by the prosecution that the accused Prabhu Nath used to approach MST. Ghisi to beg flour' Prior to 'dipawali' before her death MST. Ghisi had been taken ill. She had been sent to Isharda Hospital for treatment. She returned therefrom to her home after some days and underwent sorcerers treatment at the hands of the accused Prabhu. She had owned some agricultural land, which she had allotted to Sukhdeo for cultivation and grazing cattle. During the night of March 19 and 20, 1965, she was murdered in her house. Next day morning her adopted son Shiv Dayal, P. W. 1, went to her house. He found the front door of her house closed and bolted. After opening the door, he entered the house and therein he saw his mother lying dead. Her neck was found fastened with a string. Her ears' lobes and tragi were found ruptured and the eatings removed The gold 'tant' around her neck was also missing. The two pits in her house were seen to have been dug out and their contents removed. First information report of the occurrence was lodged by Shiv Dayal with the police station, Boli, on March 20, 1966, at 3 p. m. On receipt of the report the police registered a case and went into action. In the course of investigation Prabhu was arrested on March 25, 1966 and so was Sukhdeo on March 25, 1966 Prabhu gave in format on to the police after his apprehension that he had hidden certain ornaments of MST. Ghisi in his 'guwar'. This information was reduced to writing and is marked Ex. P. 11. Thereafter the accused got 9 items of ornaments recovered under memo Ex. P. 6 dated March 25 1966. The accused Sukhdeo also supplied information to the police on March 25, 1966, that he had concealed certain ornaments of MST. Ghisi in his house. It was recorded by the Station House Officer, Bahadur Singh, in memo Ex. P. 12. Later on, the accused Sukhdeo led the police to his house and got recovered 8 items of ornaments, The recovery memo is Ex. P. 5 dated March 25, 1966. All these ornaments were sealed by the police on the spots. They were subsequently identified before Shri P. M. Dutta, Tehsildar-cum-Second Magistrate, Bali; by Shiv Dayal, P. W. 1, Shri Narayan, P. W. 2, and Gange Sahay, P. W. 7. 'auganias' were also identified by goldsmith Bajranglal, P. W. 8 and 'anvalas' by Goldsmith Gordhan, P. W. 9 Ida Fakir had pledged the silver 'karas' (Arts. 16 and 17) of his wife with MST. Ghisi and he identified them before the Magistrate. The identification memo in respect of the property recovered at the instance of Prabhu is marked Ex. P. 15 and the one in regard to the property recovered at the instance of Sukhdeo is Ex. P. 16. Both these documents are dated April 13, 1966. Autopsy of the dead body of MST. Ghisi (aged about 60 years) was conducted by P. W. 12 Dr. Balvir Singh, Medical Officer, Govt. Hospital, Isharda, on March 21, 1966. The corpse was identified by Shri Narayan. The Doctor found both her ears' lobes ruptured. He also noticed her both ears' tragi torn apart. There was ligature mark around her neck. Below the thyroid, cartilage under lined issued was congested and ecchymosed. On internal examination the Doctor found larynx, traches congested with frothy blood. Her right lung was congested. Similar was the condition of her left lung. There was fracture of hyoid bone, Her face and lips were also found congested, and the eyes-protruding and so was tungus. Tissues under ligature mark and the brain membranes were congested. Her death, the Doctor opined, must have taken place within 24 to 51 hours before the time of the post-mortem examination and the cause of death was asphyxia due to strangulation. All the injuries were ante mortem. The injury of the neck could have been caused by a string. After necessary investigation, the police put up a challan in the court of the Munsiff Magistrate, Sawai Madhopur. The learned Magistrate conducted preliminary inquiry and committed the two accused Prabhu and Sukhdeo to the court of the Additional Sessions Judge No. 2, Gangapur City to face trial under secs. 302 and 380, I. P. C. On November 30, 1966, charges under said sections of the Indian Penal Code were read over and explained to the accused, to which they pleaded not guilty and claimed trial. In support of its case the prosecution examined 19 witnesses. In his statement recorded under sec. 342, Cr. P. C. the accused Prabhu displayed total ignorance of the prosecution case. He made it clear that he had never been to Ghisi's house, nor was he aware of the recovery of the ornaments on his information and at his instance. To the same effect was the statement made by the co-accused Sukhdeo. The accused did not produce any evidence in their defence. By his judgment, dated June 30, 1967, the learned Additional Sessions Judge No. 2, Gangapur City, acquitted Prabhu and Sukhdeo of the offence under sec. 302 I. P. C. He, however, convicted them under sec 380, I. P. C. and sentenced each of them to five years' rigorous imprisonment and to pay a fine of Rs 101 in default of payment of which to undergo further rigorous imprisonment for one year.
(2.) AGGRIEVED by the above judgment, the State has filed an appeal (D. B. Cr. Appeal No. 630 of 1967 ). Both Prabhu and Sukhdeo have also taken an appeal (D. B. Cr. Appeal No. 448 of 1967) against their conviction under sec. 380 I. P. C. The contention of the learned counsel for the State is that it has been proved that Prabhu accused frequented Mst. Ghisi's house and gave her magic treatment during her ailment period, The other accused Sukhdeo in the capacity of a 'siri' also visited Ghisi's house off and on. Both were seen near about the house of Mst. Ghisi prior to the occurrence. The deceased's belongings have been recovered on the informations and at the instance of the two accused persons. No plausible explanations are forthcoming on behalf of the accused as to how they had acquired possession of Ghisi's ornaments. The learned counsel, in the end, submitted that the accused should be convicted for the murder of Mst. Ghisi and be penalised in accordance with law. In their jail appeals the accused contended that the prosecution failed to prove the offence under sec. 380 I. P. G. and that they being innocent should be acquitted of the crime of larceny. On receipt of the State appeal notices were given to the accused persons as to why they should not be convicted under sec. 302, I. P. C. As the accused were not represented by any counsel, Mr. R. B. Bhandari was appointed as Amicus Curise. Since both the appeals emerge out of the same verdict, we propose to dispose them of together by one judgment. The first question that is to be considered is whether Mst. Ghisi died an unnatural death. Post mortem examination of her dead body was carried out by P. W. 12 Dr. Balvir Singh, Medical Officer, Incharge, Government Hospital, Isharda on March 21, 1966, at 8 A,m. The details of her injuries have already been noted above. The Doctor is precisely of the view that the injuries of Mst. Ghisi were ante-mortem and she died of asphyxia due to strangulation and that the duration of her injuries was 24 to 48 hours. A string was also found fastened around her neck at the time of preparing the inquest report Ex. P. 2. This fact is borne out by the testimony of Ram Karan, P. W. 6, Rameshwar Prasad P. W. 4, Shiv Dayal, P. W. 1 Prabhoo Lal, Sarpanch, Pipalwara, P. W. 16 and the Station House Officer, Boli, Bahadur Singh, P. W. 18. There is, therefore, no manner of doubt that Mst. Ghisi met unnatural and homicidal death during the night of 19th and 20th March, 1966. The crucial point which needs serious consideration for the disposal of the State appeal is: whether there is sufficient evidence to connect the accused Prabhu and Sukhdeo with the crime of murdering Mst. Ghisi. P. W. 1 Shiv Dayal states - "my mother got Japta (Jhada Phunki) done by accused Prabhu Nath six months prior to her death. After that also accused Prabhu Nath used to come to my mother. Prabhu Nath's sister Gendoli used to fill water at the house of my mother. . . . . . . . We gave land in partnership for cultivation to accused Sukhdeo which belonged jointly to my aunt Ghisi and myself. In that connection accused Sukhdeo used to come both at the house of my aunt as well as of mine for the last 3 to 4 years. " P. W. 2 Shri Narayan, father of Shiv Dayal, has said in his statement, dated Feb. 20, 1967 - "accused Prabhoo used to go daily for begging flour (Aata), He used to come at the place of Ghisi. We had given share to Sukhdeo in agricultural land and used to graze my cows. . . . . . . . . In the month of Asoj on Dashera she got magic treatment (Jhadphoonki) from accused Prabhoo. " P. W. 3 Ramchandra says - "accused Prabhoo had taken her for magic treatment 5-6 months prior to her death. He had taken her in north side at the place near the boundaries of village Pipalwada and Behnoli. Ghisi had taken me with her. She told me that Prabhoo was taking her for magic treatment and requested to accompany her. On this, I also went with Ghisi and Prabhoo Prabhu lighted the fire and lit the lamp. Dhoop Lohavan was put on the fire. Prabhu had Chhuri (dagger ). From that Chhuri he performed the Utara of Ghisi. Prabhu took them to Balaji's place. Prabhu made Ghisi to make rounds of Balaji. I remained standing. Accused Prabhu burnt Dhoop etc. thereafter that day they returned back to the house. Next day, I went to Ghisi's house and found Ghisi and Prabhoo sitting, I asked Prabhoo what he will do now. On this he told me that he had taken the Patta of Bhenroji Now he will go to Bhenroji of Masan. It was not necessary for Ghisi to go not for him. This talk was of 'teej' day. Next day I again went to Ghisi's house and found accused Prabhu there. I asked Prabhoo what next day now and he told that he had gone to Masani's Bhenro. 'bhenroo' told me to come on Navami's day. Bhanroo had kept with him Kande and Doorey. On Naumi, I went to Ghisi's house and found accused Prabhoo sitting at her place I asked Prabhu what next now. Prabhu told me that Bhenrooji had given him his Jholi. " The testimony of the above witnesses on the specific point remains unshattered in the cross examinations. The accused have simply denied the fact of visiting the house of Mst. Ghisi off and on. Their bare refusal does not negative the prosecution evidence. The prosecution has also succeeded in proving that prior to the occurrence both the accused Prabhu and Sukhdeo were seen together and they proceeded towards the house of Mst. Ghisi P. W. 14 Girraj Prasad Mali, a businessman of Pipalvara, stated on 30. 3. 67 - "i know accused Prabhoo who is present in the court today. He purchased approximately 12 months back at 8 or 9 in night Agarbati worth of two pice. At that time accused Sukhdeo was not with him but he was standing at some distance from him. . . . . . . . . Next day he heard about Ghisi's death. " The statement of Girraj Prasad about selling of the joss sticks a day prior to the incident gets support from the statements P. W. 1 Shiv Dayal, P. W. 2 Shri Narayan and P. W. 3 Ramchandra who have stated that the accused Prabhu gave magic treatment to the deceased in which burning of incense was practised. P. W. 15 Roop Narayan Mahajan, a shop keeper of village Pipalvara, testifies - "in the night Sukhdeo accused came to his shop and brought one quarter seer of the grain. He purchased Bidis in exchange of that grain from his shop. When Sukhdeo was purchasing Bidis from his shop at that time Prabhoo accused was standing on the way. After having purchased Bidis both Sukhdeo and Prabhoo went towards the side where occurrence took place. Next day at 12 O'clock in the day he came to know that Ghisi was murdered. " We have carefully looked into the cross examinations of the above two witnesses and we find that their examinations in chief have not been shaken in any manner. From this testimony it is manifest that during the night of March 19 and 20, 1966, both Prabhu and Sukhdeo were seen together and they proceeded towards the house of the deceased Mst. Ghisi. It is difficult to believe that two responsible businessmen Girraj Prasad, P. W. 14 and Roop Narayan, P. W. 15, would go out of their way to depose to certain events which would provide a strong evidence against the accused and lead to their convictions on a capital charge. We have no hesitation in believing the evidence of these two witnesses and reach the conclusion that the two accused were seen together going towards the house of Mst. Ghisi, at about 8 or 9 P. M. , during the night of the occurrence. One of the two accused, namely, Prabhu, was armed with the pretext that he would cure Mst. Ghisi of her ailment by occult control of spirits or witchcrafts and for that purpose he had already bought joss-sticks. All the articles needed in that connection were recovered by P. W. 18 Station House Officer, Bahadur Singh in the presence of Ram Karan P. W. 6 and Shiv Dayal P. W. 1 under memo Ex. P. 4 dated March 28, 1966. The most important piece of evidence which the prosecution has produced in this case is the recovery of the ornaments owned by or belonging to the deceased Mst. Ghisi. Prabhu was arrested on April 23, 1966, by the Station House Officer, Bahadur Singh. When he was under arrest, he gave information to the police that he had buried ornaments of the deceased in his 'guwari'. The information was noted down by the Station House Officer, Bahadur Singh, vide memo Ex P. 11. In pursuance of that information Prabhu led the police to his 'guwari' and got recovered one 'bajji' Art. 18, 'anvala' Art 6, 'bangan' Art. 19, 'tora Malhati', Art. 20 'pholris' Art. 8, 'auganias' Art. 12 and 'tabij' Art 13. A memo was prepared by the police on the spot in respect of this recovery. It is marked Ex. P. 6. This memo stands proved not only by P. W. 18 Bahadur Singh, Station House Officer, Boli, but also by P. W. 6, Ram Karan, P. W. 9 Gordhan, and P. W. 17, Ram Saroop. The articles wore sealed in the presence of the witnesses and they were sent for identification to P. W. 19 P. M. Dutta, Tehsildar and Second Class Magistrate, Boli. The said Magistrate conducted identification proceedings on April 13, 1966, under memo Ex. P. 15. All the above articles were identified by Shiv Daval, P. W. 1, Shri Narayan, P. W. 2, and Ganga Sahay, P. W. 7. Earrings (Auganias) were identified by Bajranglal goldsmith, P. W. 7, and 'anvalas' by Gordhan goldsmith, P. W. 9. The silver 'karas' were identified by their pledger Ida Fakir, P. W. 11. Sukhdeo was arrested by the Station House Officer Bahadur Singh on March 25, 1966. That very day he furnished information to the police under memo Ex. P. 12 to the effect that he had kept hidden in his house certain ornaments of Mst. Ghisi. That information was reduced to writing by the Station House Officer, Bahadur Singh, P. W. 18, under memo Ex P. 12. Soonafter the accused led the police to his house and got recovered the following articles - 'tora Malhati' Art. 11. 'anvalas' Art. 15. 'kara Nahar Mukhi' Art. 10. 'kankati' Art. 9. 'silver necklace' Art. 7. 'kara' Art. 17. 'bholris' Art. 21. 'auganias' Art 22. The recovery memo Ex. P. 5 was prepared in the presence of the Station House Officer, Bahadur Singh P. W. 18 and witnesses Ram Karan (P. W. 6), Ram Saroop (P. W. 17) and Gordhan (P. W. 9 ). These articles were duly sealed and were sent to the Tehsildar-cum-second class Magistrate, Boli, Shri P. M. Dutta, for the purpose of identification. The said Magistrate conducted identification proceedings under memo Ex. P. 16, on April 18, 1966. All the above mentioned articles were correctly identified by Shiv Dayal, P. W. 1, Shri Narayan. P. W. 2, and Ganga Sahay P. W. 7. The pair of 'auganias' was further identified by Gordhan goldsmith (P. W. 9) and the 'karas' by its pledgor Ida Fakir (P. W. 11 ). On the question of admissibility of the statements of the accused persons to the police, the trial court thought it to be admissible and we think rightly, having regard to the decision of the Privy Council in Kottays (1), Sir John Basument in delivering the judgment set out the entire statement made by the accused No 6 to the police and held that the whole of that statement except the passage "i hid it (a spear) and my stick in the roof of Venkatanarasu in the village. I will show if you come" is inadmissible. In other words, the statement "i hid (a spear) and my stick in the roof of Venkatanarasu in the village, I will show if you come" was admissible. In the course of the judgment Sir John Beaumont observed - "it leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. " We can see no reason for disbelieving the Police Officer Bahadur Singh, P. W. 18, regarding the statement made before the police. An examination of the Sub Inspector's evidence does not disclose any circumstance which would justify us in holding that he was not speaking the truth. Whoever was responsible for the death of Mst. Ghisi had evidently taken away all her valuables to make a profit out of them. On behalf of the accused it was urged that the ornaments were of common pattern and there being no specific identification marks it was difficult for the witnesses to have identified them. It is in the evidence of P. W. 9 Shri P. M. Dutta, Second Glass Magistrate, Boli, that the seals on the packet in which the articles were found were intact. The identification proceedings were conducted item wise of the two packets separately. In these articles other necessary articles resembling with the articles in question were mixed. He called each witness separately to identify them. The identification proceedings according to him were satisfactory. The witness Shiv Dayal, P. W. 1 the adopted son of the deceased Mst. Ghisi, Shri Narayan, father of Shiv Dayal, P. W. 2, Ganga Sahay, P. W. 7, a relation of Mst. Ghisi used to see these ornaments on the person of Mst. Ghisi. Bajranglal, P. W. 8, prepared the gold 'auganias' Arts. 12 and 22, weighing about 2 tolas and P. W. 9 Gordhan goldsmith prepared the pair of ' Anvalas' Art. 15 and 6. Ida Fakir pledged the two silver 'karas' of his wife for Rs 70, with Mst. Ghisi. Small and even nice points of difference, distinguishing one thing from the other of the same kind, may merely by the frequent sight of them and without any special attention to them, make an impression on the mind. The impression is the general appearance of the thing. This sort of impression is generally a workman has it of his tools and most people have it of their dresses, jewelleries and other common things which are frequently seen, handled or used. It occurs every day that by remembrance of their general appearance a carpenter, a mason or other workman recognises his tools etc. Observation teaches that such identification may be safely relied upon, even though the witness is not able to formulate any cogent or independent reason for doing so. As Lord Mouton said in Rex vs. Christie (2) - "identification is an act of the mind and the primary evidence of what was passing in the mind of the man is his own testimony. " Many a witness would not be able to formulate reasons for the identification of articles since it is passed on general impression on the mind. It would be fatuous to discredit such identification merely on the ground that specific reasons were not assigned. In this view of the matter, the trial court was justified in holding that the articles recovered from the possession of the two accused were duly identified by the aforesaid witnesses, even though no specific marks of identification were indicated. Now the question is whether on the basis of the recovery of the aforesaid articles it is possible for the court to draw a presumption of the guilt of murder against the culprits. Shiv Dayal P. W. 1 has said that when he met his mother a day before the occurrence, he saw her putting on gold earrings (Auganias) and gold 'tant' around her neck. Blood was coming from the places of ears where she had put on 'auganias'. Shri Narayan, P. W. 2, states that Mst. Ghisi used to put on 'auganias' and 'tant' all the times, and on festival occasions. She wore also the rest of the ornaments. Ganga Sahay (P. W. 7) a close relation of Mst. Ghisi says that the deceased used to put an gold earrings in her ears and 'tant' around her neck. Dr. Balvir Singh, P. W. 12, testifies - "her both holes of the ears in which ornaments were put were found ruptured. " From this evidence lit is abundantly apparent that whosoever stole away the ornaments used violence and the offence of murder is the integral part of the offence of theft.
(3.) ILLUSTRATION (a) to sec. 114, Evidence Act, reads as follows - "that a man who is in possession of stolen goods soon after the theft is either the thief or received the goods knowing them to be stolen unless he can account for his possession. " Presumption under illustration (a) can be extended to more aggravated offences, such as, murder. As has been stated by Sigmore on Evidence, S. 2613, page 422, for the acceptance of the rule of presumption [a] possession must be unexplained, [b] it roust be fairly recent, and [c] it must be exclusive. In the present case it is clear from the evidence that the possession was fairly recent and exclusive. The accused have not explained as to how they acquired possession over the articles belonging to the deceased. In Wills on Circumstantial Evidence, 7th Edn. p. 104, it is given - "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 case of murder; which special application of it has often been emphatically recognised. " Likewise in Taylor on Evidence Vol. I, 12th Ed. page 135 it is given - "the presumption under discussion is not confined to cases of theft but applies to all crimes, even the most penal. . . . . . . . . A like inference has been raised in the case of murder accompanied by robbery. " In Tulsiram vs. State (3) His Lordship Kania, C. J. speaking for the Court laid down: "the presumption permitted to be drawn under sec. 114, illustration (a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. " In Sunderlal vs. State of M. P. [4], the offence was committed on 25th July, 1951. The accused was arrested on 27th July, 1951. The jewellery was recovered that very day. Their Lordships Mahajan and Bhagwati, JJ. held - "as the ornaments were established to be the ornaments worn by the deceased and 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 sufficient to hold the accused responsible for the murder of the deceased. " In a later case, K. K. Jadav vs. State of Gujarat [5] his Lordship Kapur J. , while delivering the judgment, said - "the discovery of the silver buttons belonging to the deceased with human blood-stains at the instance of the prisoner is a circumstance which may raise the presumption of the participation of the prisoner in the murder. " It is no doubt true that in the case of Sanwat Khan vs. The State of Rajasthan [6] his Lordship Mahajan J. held - "where, however, the only evidence against the accused person is the recovery of stolen property and although the circumstances may indicate that the theft and murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof. " In that case there was no indication that the theft and the murder took place at the one and the same time. At any rate, excepting the decision of the Supreme Court' in Sanwat Khan vs. State (supra) all other decisions are practically uniform, that if theft and murder are interconnected and stolen property is recovered from the accused, presumption of murder can be raised under illustration (a) to sec. 114, Evidence Act. The decision in Sanwat Khan's case may not lend support to the contention that if there is only one circumstance, namely, the recovery of the jewel from the possession of the accused soon after the murder, a presumption of murder can be drawn. That statement of law was made in the peculiar circumstances of the case. There was evidence in that case that there were other persons also interested in murdering the deceased. That case is, therefore, clearly distinguishable from the circumstances of the present case. In Wasim Khan vs. State of U. P. [7], the appellant was found in possession of the deceased's goods 3 days afterwards, Imam J. , speaking for the court, said that as the accused did not furnish an explanation in respect of the property recovered, he could be convicted under sec. 302 read with sec. 34, I. P. C. , since the charge against the accused was for murder and robbery both. In a judgment of this Court in D. B. Criminal Appeal No. 272 of 1967, Mohanlal vs. State of Rajasthan, decided on April 13, 1970, a presumption for offence under sec. 302 I. P. C. , was drawn against the accused-appellant Mohanlal, on the basis of unexplained possession of the stolen articles, which were habitually worn by the deceased Mst. Goran. In the instant case from the evidence discussed above, it is plain that the ornaments being in possession of both the accused soon after the murder would show that they either stole them or were in possession of them knowing or having reason to believe that they were stolen. Mst. Ghisi had been murdered by some one and stole her ornaments, particularly gold earrings, which she was putting on in her both ears as also the gold 'tant' which she was wearing around her neck. According to the prosecution evidence both the accused frequented the house of the deceased and were also seen together proceeding towards her house in the night of the occurrence. These circumstances clearly indicate that the murder was the integral part of the theft and that the theft and murder were committed at one and the same time. Two earrings which Mst. Ghisi was wearing were found in possession of Prabhu and a pair of the like ornament was recovered from the possession of Sukhdeo. They were in their recent and exclusive possession and they have furnished no explanation as to how they got possession of these ornaments. The lobes and tragi of the deceased's ears were found ruptured. We have, therefore, no hesitation in saying that these circumstances incriminate the two accused to the fullest extent. The conclusion of the trial court is - "i am conscious that a very cold blooded murder pre-planned has been committed of Ghisi Bai, an aged woman, by the miscreant or miscreants and who are escaping the clutches of the law for such a heinous sort of crime, but as there is no connecting evidence produced by the prosecution against the accused persons in order to prove beyond reasonable doubt their guilt of murdering her, I, therefore, feel inclined to give benefit of doubt to accused persons namely Prabhu and Sukhdeo and acquit them of the charge u/s. 302 I. P. C. " The learned trying Judge further proceeds and adds - "but these accused persons have been in recent possession of the ornaments belonging to Ghisi Bai deceased namely golden Ognis and golden That, but these accused persons have not given any explanation how they have come in possession of these ornaments. I draw adverse presumption against the accused persons under sec. 114, illustration (a) of the Indian Evidence Act that the accused persons committed theft of the above said ornaments and other ornaments belonging to Ghisi Bai in the intervening night of 19. 3. 66 and 20. 3. 66. " The trial court admits that Ghisi's ear lobes were torn and she was wearing gold earrings in her ears and that a pair thereof was recovered from the possession of each of the accused soon after the crime. The accused offered no explanation as to how they fell in their possession along with other ornaments. On these acts the trial court could not have held that whosoever committed the theft could not have committed the murder. Having regard to what is established in the case and the principles deduced from the cases cited above, we are satisfied that the trial court fell in error in acquitting the accused of the offence of murder. It is impossible to accept the submission that the facts of the case do not establish the capital offence having been committed by the accused. While deciding the question of sufficiency what the court has to consider is the total cumulative effect of all the proved facts each one of which reinforces the conclusion of the guilt and if the combined effect of these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that a particular fact relied upon by the prosecution may not be decisive in itself; vide State of A. P. vs. I. B. S. P. Rao [8]. ;