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PETITIONER: LAXMI RAJ SHETTY AND ANR.

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT26/04/1988

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) SHARMA, L.M. (J)

CITATION:  1988 AIR 1274            1988 SCR  (3) 706  1988 SCC  (3) 319        JT 1988 (2)   180  1988 SCALE  (1)931

ACT:      Indian Penal  Code,  1860-Challenging  convictions  and sentences under sections 302, 392 and 449 and under sections 212 and 411 of-Based on circumstantial evidence.

HEADNOTE:      Appellant No.  1, Laxmi  Raj Shetty,  was convicted and sentenced to  death under section 302, Indian Penal Code, by the First  Additional Sessions Judge, Madras. for committing the murder  of deceased  P.N. Gnanasambandam, Acting Manager of the  Karnataka Bank,  Madras. He  was  further  convicted under s.  392 for  having committed  robbery from the strong room of the Bank, and also under s. 449 for having committed house trespass  with intent  to commit  the said robbery and murder, and  was sentenced  to undergo rigorous imprisonment for seven years on each of these courts, the sentences being directed to merge in the sentence of death.      Appellant No. 2 Shivram Shetty, father of the appellant No. 1,  was convicted by the Additional Sessions Judge under s. 212  and  s.  411,  I.P.C.,  and  sentenced  to  rigorous imprisonment for three years on both counts.      The Sessions  Judge had relied upon the testimony of PW 18, Smt. Kanaka and other prosecution witnesses and had come to the  conclusion that  the circumstances  from  which  the conclusion  of   guilt  was  to  be  drawn  had  been  fully established against  both the  accused and  all the facts so established were  consistent only  with  the  hypothesis  of their guilt  and excluded  every reasonable  possibility  of their innocence.      According to  the prosecution,  the accused  Laxmi  Raj Shetty, a  trainee-clerk  in  the  Bank,  and  the  deceased Gnanasambandam used  to work  in the  bank after  the normal working hours  and leave the bank premises together at night around 9 or 9.30 p.m. On the fateful 707 night, the deceased was working in the Bank after the normal banking hours.  At about  7.30  p.m.  the  appellant  No.  1 (accused) came to the bank premises, as he used to work late in the  evenings and help the deceased. Some time after 7.30 p.m. the  deceased went to the toilet where he was struck on the head  by the  assailant with  a  stitcher  as  a  result

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whereof he  slumped. Thereafter  he was  strangulated with a towel and  also stabbed  to death by a pair of stitchers. At about 9 p.m. the accused was seen coming out of the building by PW  18, Smt. Kanaka. The accused closed the outer door of the Bank  and was  seen by  PW 18  going. He returned with a suitcase, re-entered  the Bank premises, and came out with a bag, suitcase  and a  brief  case,  and  after  placing  the suitcase on  the steps went inside again and came out with a large coffee  coloured skybag.  He then  got an autorickshaw from the  Burma Bazar  and disappeared into the night in the auto-rikshaw.      On a  reference by  the Additional  Sessions Judge, the High Court  confirmed the  convictions and sentences of both the appellants.  The appellants  then appealed to this Court for relief by this appeal.      Dismissing the  appeal with  a modification,  directing that the  sentence of  death passed  on appellant  No. 1  be converted into one of life imprisonment, the Court, ^      HELD:  The  prosecution  case  against  the  appellants rested purely  on circumstantial  evidence. The law relating to the  proof of  a  case  based  purely  on  circumstantial evidence has  been settled  by several  authorities of  this Court as well as the High Courts. [724F-G]      In cases  where the  evidence is  of  a  circumstantial nature, the circumstances from which the conclusion of guilt is to  be drawn  should  in  the  first  instance  be  fully established, and  all the  facts so  established  should  be consistent only  with the  hypothesis of  the guilt  of  the accused. Again,  the circumstances should be of a conclusive nature and  tendency and  they should  be such as to exclude every hypothesis  but the  one proposed  to be proved. There must be  a chain of evidence so far complete as not to leave any reasonable  ground for  a conclusion consistent with the innocence of the accused and it must 708 be such as to show that within all human probability the act must have been done by the accused. [725D-E]      The  Court  did  not  discover  any  infirmity  in  the reasoning or  the conclusion  arrived at  by the  Additional Sessions Judge or the High Court. [725F]      The Court enumerated and went through the circumstances arising from the evidence adduced by the prosecution broadly under the  heads-(1) The  accused had  occasion to learn the method of  operating the safety vault, (2) The fact that the accused  was  last  seen  leaving  the  Bank  premises,  (3) Purchase by  the accused  of a  suitcase and  a skybag  from Burma Bazar, (4) Stay of the accused at Hotel Chola Sheraton under the assumed name of Maharaj (5) Stay of the accused at Hotel Moti  Mahal at Mangalore, (6) Recovery of coffeecolour skybag from  the residence  of late Kumari Usha Rani, sister of the  accused, and (7) Recovery of the stolen money of the Bank from  the accused,  and  thought  that  the  cumulative effect  of   all  these  circumstances  was  sufficient  and conclusive to  raise  an  inference  of  guilt.  [726D;727F- G;731C;732H;733F;734C,E]      The accused Laxmi Raj Shetty was entitled to tender the newspaper report from the Indian Express of the 29th May and the regional  newspapers of the 30th May, regarding both the appellants being  taken into  custody at  Mangalore and  the recovery of  the entire  stolen amount from the residence of appellant No. 2 at Mangalore, along with his statement under s. 313 of the Code of Criminal Procedure, but the appellants did not  examine the  Editors  and  news  reporters  of  the newspapers. Judicial  notice cannot  be taken  of the  facts

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stated in  a news  item  being  in  the  nature  of  hearsay secondary evidence,  unless proved  by evidence  aliunde.  A report in  a newspaper is only hearsay evidence. A newspaper is not  one of  the documents referred to in s. 78(2) of the Evidence Act,  by which an allegation of fact can be proved. The presumption  of genuineness  attached under s. 81 of the Evidence Act  to a  newspaper report  cannot be  treated  as proof of facts reported therein. It is now well-settled that a statement  of fact  contained in  a  newspaper  is  merely hearsay and,  therefore, inadmissible  in  evidence  in  the absence of the maker of the statement appearing in Court and deposing to  have perceived  the fact  reported. The accused should have, therefore, pro- 709 duced the  persons in  whose presence  the  seizure  of  the stolen money  from the house of appellant No. 2 at Mangalore had been  effected, or  examined the press correspondents in proof of  the truth  of  the  contents  of  the  news  items appearing in  the newspapers. There was nothing on record to substantiate the  facts reported  in the newspapers, showing recovery of  the stolen  amount from  the residence  of  the appellant No.  2 at  Mangalore.  There  was,  therefore,  no reason to  discard the  testimony of  PW 50,  Deviarigamani, Inspector of Police (Crimes) and the seizure witnesses which established that  the amount  in question  had been actually recovered at  Madras on  the 29th  and the 30th, as alleged. [735D-H; 736D-E]      The evidence  did not clearly indicate the exact manner in which  the murder had been committed. The appellant No. 1 had not taken any weapon for assaulting the deceased but had used two  stitchers lying  in the  Bank premises, indicating that the  murder was  not pre-planned. Looking to the nature of the weapon used, it seemed that the accused acted under a momentary impulse.  In the circumstances, the Court directed that the  sentence of  death passed  on appellant  No. 1  be converted into  one of  life imprisonment.  Subject to  this modification, the  appeal failed  and was  dismissed and the judgment and  sentences passed  by the  Additional  Sessions Judge, affirmed  by the  High Court  in appeal  were  upheld being appropriate. [737C-E]      Earabhadrappa v.  State of Karnataka, [1983] 2 SCC 330; Reg v. Hodge, [1838] 2 Law 227, referred to.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 36 of 1987.      From the  Judgment and Order dated 1.9.1986 of the High Court of Madras in Crl. Appeal No. 893 of 1985.      N. Natarajan,  V. Krishnamurthi and V. Balachandran for the Appellants.      U.R. Lalit,  A.V.  Rangam,  V.R.  Venkataswami  and  L. Rajendran for the Respondents. 710      The Judgment of the Court was delivered by      SEN, J.  Appellant No.  1, Laxmi  Raj Shetty  is  under sentence of  death on  his conviction  under s.  302 of  the Indian Penal  Code, 1860  for having committed the murder of the deceased  P.N.  Gnanasambandam,  Actg.  Manager  of  the Karnataka Bank,  Main Branch, Madras by the First Additional Sessions Judge,  Madras by  his judgment  and sentence dated October 28, 1985. He has further been convicted under s. 392 for having  committed the offence of robbery of Rs.13,97,900 from the  strong room  of the Bank and also under s. 449 for

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having committed  house trespass  with intent  to commit the said robbery  and murder.  He has  been sentenced to undergo rigorous imprisonment for a period of seven years on each of these counts  and the sentences are directed to merge in the sentence of  death. Appellant  No. 2 Shivaram Shetty, father of appellant  No. 1,  a retired Sergeant Major of the Indian Air Force,  re-employed as Security Officer, Karnataka Bank, Main Branch,  Mangalore has  been convicted  by the  learned Additional Sessions  Judge under s. 212 for having harboured his son  Laxmi Raj  Shetty having  known or having reason to believe that he had committed the murder of the Bank Manager and disappeared with a very large sum of money from the Bank and also  under s.  411 for  having with dishonest intention retained possession  of the huge sum of Rs.12,27,500 knowing the same  to be  stolen and  sentenced to  undergo  rigorous imprisonment for a period of three years on both counts; the sentences have  been  ordered  to  run  concurrently.  On  a reference  by  the  learned  Additional  Sessions  Judge,  a Division Bench  of the  High Court  by  its  judgment  dated September 1, 1986 has confirmed the sentence of death passed on appellant No. 1 Laxmi Raj Shetty under s. 366 of the Code of Criminal  Procedure, 1973  as  also  the  conviction  and sentences passed  on him under ss. 392 and 449 of the Indian Penal Code  and those  under ss.  212 and  411 on his father Shiva Ram Shetty.      The  Karnataka   Bank  has   seven  branches   in   the Metropolitan City  of Madras,  the main branch being at 171, Thambu Chetty  Street. In each branch there is a strong room for keeping the cash and other valuables. The main Branch at 171, Thambu  Chetty Street  is on  the first  floor and  the Regional Development  Office at the second floor of the same building which belongs to the Bank, 711 the ground  floor being  used for a car park and godown. The strong room  in the  main branch has a double locking system with two  sets of  keys. One  set of keys i.e. including the master key remained with the officer next to the Manager and the second set with the officer next to him. The strong room could not  be opened except by the use of both the keys. The total cash  in the  strong room  on May  20, 1983 as per the entry  in   the  Double   Lock  Register   Exh.   P10,   was Rs.14,26,113.70 in  bundles of  currency notes  bearing  the Bank seal  MO 11  Series to MO 169 Series. This is borne out by the  Cash  Scroll  Register  Exh.  P8.  The  Cash  Scroll Register was  not kept under lock and key and used to remain on the  table of  PW 6  Smt. Shasikala,  Officer and she has testified that  the total  cash at  the end  of that day was Rs.14,26,113.70 and she handed over the amount to the Double Lock officer.  The assailant  would therefore know by a look at the  Cash Scroll  Register as  to the exact amount in the strong room on that day.      The topography  of the  Main Branch  is  given  in  the sketch plan  Exh. P1.  The Manager’s  cabin is  on the first floor at  the north  eastern corner. The central hall in the middle is  empanelled with different counters and there is a big lounge  outside facing  the Manager’s  cabin.  The  Bank officials  used   to  sit  in  the  central  hall  at  their respective places  while transacting  the  business  of  the Bank. The  bathroom  and  the  W.C.  where  the  murder  was committed, are on the south western corner. For going to the bathroom, one  has to  cross the  central hall,  get into  a foyer where  the water  cooler is  kept and beyond it is the bathroom and  W.C. Just  across the  foyer and  opposite the bathroom is a flight of steps leading upto a mazzanine floor on which the strong room is located.

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    It appears  that the  accused Laxmi Raj Shetty, aged 24 years is  a 6  feet tall,  fair-complexioned young  man with curly hair. He along with PW 9 Govindaraj was recruited as a trainee clerk  at the  Main Branch  in the  month of  August 1982, placed  on probation  in October  1982 and  thereafter confirmed in  the month  of  April  1983.  It  has  come  in evidence that  the accused Laxmi Raj Shetty and the deceased Gnanasambandham were known to PW 18 from before as they both used to  leave the  Bank premises together at night around 9 or 9.30  p.m. The  accused was  a karate  expert and  always attired in  a red  T-shirt carrying  a  karate  bag  on  his shoulder. He was thus a 712 man with  distinctive features and would naturally stand out in  a  crowd.  All  the  other  witnesses  examined  by  the prosecution to  prove the various circumstances appearing in the case  after the  gruesome murder  speak  of  the  person involved being  a tall,  fair-complexioned  young  man  with curly hair,  aged about  24 or  25 years.  The evidence also shows that  PW 50 Deviasigamani, Inspector of Police who was investigating into  the crime  carried with him a photograph of the  accused Laxmi Raj Shetty and when the witnesses were shown the  photograph, they identified the accused to be the person in question.      According to the prosecution, on the fateful night i.e. On May  20, 1983 the deceased Gnanasambandham was, as usual, working in  the Bank after the normal banking hours. He used to sit  on his  table  in  the  central  hall  next  to  the Manager’s cabin  underneath  a  fan.  Being  the  seniormost officer, he  had the custody of the first set of keys to the strong room,  the second set of keys used to remain with the officer  next   to  him   PW  16   K.  Chandrasekara  Holla. Apparently, at  about 7.30  p.m. appellant  No. 1  Laxmi Raj Shetty (hereinafter referred to as the accused), after doing physical  exercises   at  Physical   Development  Institute, returned to  the Bank premises. The prosecution case is that during the  probationery period,  the accused  used to  work late in  the evenings  and  gained  the  confidence  of  the deceased by helping him with the work. They would both leave the Bank together after completing the day’s work roundabout 9 p.m.  The deceased  would hand  over the keys of the outer door and  the shutter to the accused who would lock the same and hand  back the  keys to  the deceased. The accused would then accompany  the deceased  some way towards his house. On the fateful  night i.e. on May 20, 1983, the cash balance in the strong  room at  the end  of the  day, according  to the testimony of  PW 6  Smt. Shasikala as supported by the entry in the  Cash Scroll Register Exh. P 8 and that in the Double Lock Register  Exh. P10,  was Rs.14,26,113.70  in bundles of currency notes of different denomina-tions, all bearing Bank seals being Mo 11 Series to MO 169 Series.From the testimony of PW  16 who  had the custody of the second set of keys and was expected  to take them home after the day’s business, it appears that  he would instead lock the same in the cupboard of his  table and  take the key of the cupboard with him. At times, out  of forgetfulness,  he would leave the key in one of the drawers. 713      On that  day, unfortunately,  PW 16 left the key of the cupboard on the table which sealed the fate of the deceased. On the  night the deceased was working in the Bank after the normal banking  hours. Presumably  some time after 7.30 p.m. he left  his seat  in the central hall to go to the bathroom and when he was in the toilet he was struck on the head with the iron  portion of  one of  the stitchers  as a  result of

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which he slumped. Thereafter the assailant first roughed him up, then  strangulated him  with a twisted towel with a knot and stabbed to death by a pair of stitchers on both sides of his neck, ordinarily used as part of official stationery for stitching papers.  He had  apparently been  done to death to relieve himself of the first set of keys.      At bout  9 p.m.  the accused was seen coming out of the building by  PW 18  Smt. Kanaka, a flower vendor, sitting on the steps  of the Bank. The accused closed the outer door of the Bank and was seen by PW 18 going towards Burma Bazar. He returned after  some time  with a light blue colour suitcase and re-entered  into the  Bank premises. After about half an hour he came out with a bag on his shoulder, the blue colour suitcase in  one hand  and a  brief case  which the deceased used to carry with him, in the other and placed the suitcase on the  steps of  the Bank. He again went inside and brought out a  large coffee coloured skybag and placed it beside the suitcase. He  then went  towards Burma  Bazar and  came back with an auto-rickshaw and with the help of PW 31 Venkatesan, auto-rickshaw driver,  placed the suitcase and the skybag in the  autorickshaw   and  disappeared  into  the  night.  The testimony of  PW 18  is that  she repeatedly queried whether the Periya  Ayya, meaning  the elderly person or the Manager Ayya thereby  meaning the  deceased had  not  come  but  the accused did not respond to her queries.      On the  next morning i.e. on May 21, 1983 at about 8.15 a.m. PW  2  Mallaiya,  the  day  watchman  opened  the  Bank premises and  when he  switched on  the lights, he found the fan over  the table of the deceased still on and he switched it off.  He also  found the Seiko watch of the deceased, his ball pen,  pass book and other belongings along with an open ledger lying  on the  table. He  asked  PW  1  Lakshmi,  the sweeper, not  to touch  any of  these articles and attend to her work.  His version  is that he went out for a cup of tea but shortly thereafter PW 1 came out shouting that there was a dead 714 body lying in the toilet and in the meanwhile the members of the staff  had started arriving. PW 2 along with Venkataraj, Cashier and  one Rajaiah went inside and saw the body of the deceased sprawled in the toilet. He immediately contacted PW 3 P.T.  Rajan, Chief  Manager of  the Bank  and asked him to come at  once. PW  3 rushed  to the Bank and saw the ghastly sight and got in touch with the police control room.      On the  21st morning  which was a Saturday, the accused attended the Bank as usual presumably to allay suspicion. He was present  when the  Investigating officer  PW 47 Anandam, Inspector of  Police, Esplanade,  B-2 Police Station came to the Bank  along with  a Sub-Inspector and a Police Constable on receipt  of a message flashed by the police control room, as conveyed  by PW  46  Manikkam,  Sub-Inspector  of  Police attached to  B-1 North  Beach Police Station. On his arrival he took  cognizance of  the offence on the first information report  Exh.   P3  lodged   by  PW   3  and  started  making investigation and  made the usual seizures. After holding an inquest  over   the  dead  body,  he  sent  for  the  police photographer, the  fingerprint expert  and  the  police  dog squad. He also recorded the statements of PW 1 Lakshmi, PW 2 Mallaiya, PW  3 P.T.  Rajan and PW 16 K. Chandrasekara Holla and one  Ravi Shankar. He did not interrogate the other Bank officials, including  the accused.  The testimony of PW 3 is that immediately  on arrival  at the  Bank he sent for PW 16 and asked  for the  second set of keys. He came and told him that the  key of  his cupboard  was missing and therefore it could not be opened. It had then to be wrenched open and the

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second set  of keys  was also found missing. PW 3 told PW 47 that he  would get  the  duplicate  set  of  keys  from  the Triplicane Branch and with the help of duplicate set of keys the strong  room was  opened at about 2.30 p.m. and a sum of Rs.13,97,900  was   found  missing.   A  message   was  then transmitted by  PW 3  to PW 10. P. Raghuram, Chairman of the Karnataka Bank at the Mangalore Head office about the murder of the  Actg. Manager and the theft of Rs.13,97,900 from the strong room.      PW  43   Dr.  Cecilia   Cyril,   Associate   Professor, Department of  Forensic Medicine,  Medical  College,  Madras performed an  autopsy on  the dead body of the deceased. She found that  the deceased  had been  strangulated by  a  dark colour  twisted   towel  36x7  c.m.  long  with  knot  which completely encircled his neck near the thyroid 715 cartilage. She  found several  external injuries. Underneath the towel there was a faint ligature mark 32x5 c.m. over the front side and back of the neck. Apart from this, there were also several lacerations, bruises and abrasions on the upper part of  the body,  particularly on the face and the neck as also on  both the hands. The doctor also found two stitchers measuring 14  c.m. in  length thrust  into both sides of the neck in  the front.  One of  the stitchers had been thrust 5 c.m. deep  and got  stuck in the cartilage and the other was embedded 11  c.m. deep.  On dissection,  she found extensive bruising of  tissues over  both sides  of thyroid  cartilage 7x5x1/4 c.m.  as also  on the  front of trachea 7x3x1/2 c.m. According to  the Doctor,  each of  injuries nos. 1, 2 and 3 was by itself sufficient in the ordinary course of nature to cause death.  She further  opined that the cumulative effect of some  of the  injuries viz.  nos. 1-3,  4-10 and  17  was necessarily fatal.  She stated  that the  blood marks on the walls of  the toilet as well as on the floor could be due to sprouting and  spillage of  blood. In her opinion, death was not caused by strangulation alone.      For quite  a while, the police drew a blank. At about 6 p.m. PW  47 Anandam,  Inspector of  Police accompanied by PW 46, Sub-Inspector  returned to  the Bank  and started making inquiries in  the neighbourhood.  During the  course of  the inquiry he  traced out one Ganesan, a plumber by profession, who used  to  sleep  on  the  pavement  near  the  Bank.  He furnished a  valuable  clue  which  ultimately  led  to  the detection of  the murderer.  He revealed that Smt. Kanaka, a flower vendor  belonging to village Tharamani, whose husband Neerappan was  employed as  a cook  at  the  nearby  Krishna Bhawan Hotel  on  Errabalu  Chetty  Street,  might  disclose information  about   the  murderer,   if  she   were  to  be interrogated. On  getting this  vital information PW 47 went to village  Tharamani but  found the  house of  Smt.  Kanaka locked. On  enquiry he learnt that she had gone to the house of her sister at Vyasarpadi. PW 47 obviously did not realise the importance of this witness. He states that he did not go to Vyasarpadi  that night although the place was only 7 kilo metres from  the Police Station as it was very late. Nor did he personally  go to  the nearby Krishna Bhawan Hotel, which was only two furlongs away, and instead sent a Sub-Inspector to fetch  Neerappan, husband of PW 18, but he was not there. On the  next morning  i.e. the 22nd, under the orders of the Deputy Commissioner  of Police,  the case was transferred to the Crime Branch and 716 investigation was  taken over  by PW 48 Guruvandi, Inspector of Police  (Crimes), M-1  Post Trust Police Station, without further progress. He states that he had been to Tharamani in

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search of  Smt. Kanaka but she was not there and learnt from the neighbours  that she  had gone  to her sister’s house at Vyasarpadi but  since her place at Vyasarpadi was not known, he did  not proceed to Vyasarpadi and instead left a message that on  her return  she should  report to  the  police.  He admits that  he did  not go  himself to Krishna Bhawan Hotel but sent a Police Constable but he could not find Neerappan.      On the  23rd morning  at 10  a.m. PW  50 Deviasigamani, Inspector of  Police (Crimes),  B2 Police  Station  who  had taken over  investigation in  that morning, went to the Bank and further  examined PW  2 Mallaiya, PW 3 P.T. Rajan and PW 12 Balasubramaniam,  as also  the nearby shopowners. He then went to village Tharamani in search of PW 18 Smt. Kanaka but till then  she had  not returned  from her sister’s house at Vyasarpadi. He  left a message that she should report to the Police Station  on her  return. On  that  day  he  had  also inspected all  the relevant records including the attendance register and  detected  that  apart  from  two  others,  the accused Laxmi  Raj Shetty  did not report for duty after the 23rd. He  accordingly went  to the  Christian Home where the accused was staying in Room No. 4 but found the room locked. He examined  PW 27  Thirupathi, mess boy and learnt that the accused did  not come  for supper  on  the  20th  night  and therefore he  had kept  his food.  It was  revealed that the main gate  of the hostel used to be closed at 10.30 p.m. and till then  the accused had not returned. On the 21st morning at about 5 a.m. PW 27 saw the accused going up the stairs to his room.  After his bath he came down for breakfast but did not take  any food  complaining of stomach disorder and left after a cup of milk. On the 24th at 11 a.m. PW 50 again went to the Bank and examined some of the Bank employees, namely, PW 5 Rangarajan, PW 6 Smt. Shasikala and PW 9 Govindaraj. On that day at 4 p.m. he left for Vyasarpadi and remained there till 11  p.m. moving about in different localities making an extensive search  in an effort to trace out Smt. Kanaka, but this was  of no avail. On the 25th he went to the Bank at 10 a.m. and further examined PW 16 Chandrasekara Holla and also recorded the  statement of PW 17 Smt. Saraswathi Somasundar, an officer  of the  Bank. At 4 p.m. PW 50 left for Tharamani where he found PW 18 Smt. Kanaka at her 717 house and  recorded her  statement which revealed the actual involvement  of   the  accused   Laxmi  Raj  Shetty  in  the commission of  the murder  and  robbery;  till  then  PW  50 treated him  as a  prime suspect. After the disclosure by PW 18 Smt.  Kanaka that  she had  seen the  accused  Laxmi  Raj Shetty coming  out of  the Bank  premises on  the  night  in question after  9 p.m.,  locking the  premises  and  of  his suspicious movements  thereafter, PW  50  directed  all  his energies in  tracking down  the accused. He along with PW 49 Selvaraj, Inspector of Police and a police party left in the early hours  of 26th morning at 1 a.m . by a police jeep for Mangalore in  search of  the accused. They reached Mangalore at 9.30  p.m. At  11.30 p.m.  PW 50  called  on  the  Deputy Superintendent of Police and requested for help of the local police. With the local police headed by PW 40 Sundar Shetty, Sub-Inspector of  Police, State  Intelligence, PW  50 raided the house of appellant no. 2 Shivaram Shetty at Kodial Bail. Appellant no.  2 and  his wife were present in the house but the accused Laxmi Raj Shetty was not there, he having in the meanwhile left  for Madras  by the  West Coast  Express. The police carried on intensive search of the house till about 2 a.m.  but   nothing  incriminating   was  found.  When  they questioned appellant  no. 2 he did not disclose that his son had already  left for  Madras by train. As a result of this,

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the Madras  police throughout  on the  27th searched for the accused Laxmi  Raj  Shetty  at  Mangalore  and  neighbouring places but  could not  trace him  out. On  the 27th night at about 9  p.m. PW  50 along  with the  police party  left for Madras and  reached there in the early hours of 29th morning at 1 a.m. At 7.30 p.m. PW 50 along with PW 49 and the police party went  to the Aerodrome, Egmore Railway Station and the Madras Central in search of the accused Laxmi Raj Shetty. At the Madras Central, PW 50 received information at about 1.45 p.m. that  the accused  was seen  moving about  in My Lady’s Park. He  accordingly with  the police  party rushed  to the Park where  he arrested  the accused  Laxmi Raj  Shetty  and recovered from  his person currency notes in bundles of Rs.5 denomination marked  MOs Nos.  198 and  199 bearing the Bank seals. On the 30th morning at 7.15 a.m. PW 50 accompanied by the accused  visited the Hotel Chola Sheraton but except for the receptionist  the  other  witnesses  were  not  present. Apparently during  investigation PW  50 derived  information from the accused Laxmi Raj Shetty that the money stolen from the Bank  was kept  in his house at Mangalore. At about 9.30 a.m. he accordingly went to the Madras Central presum- 718 ably because he thought that appellant no. 2 Shivaram Shetty would be arriving by train but he could not be traced there. At 2 a.m. he obtained police remand of the accused Laxmi Raj Shetty. At  4.30 a.m. PW 50 along with PW 49 and the accused Laxmi Raj  Shetty together  with the  police party left in a policy jeep  for Mangalore.  However, on  the way  while the jeep was  near the  Madras Central,  the accused  Laxmi  Raj Shetty pointed  out his  father Shivaram  Shetty coming in a cycle rickshaw  from the opposite direction. PW 50 asked the rickshaw-puller to  stop and  took appellant  no. 2 Shivaram Shetty into  custody. Appellant  no. 2  was  carrying  three boxes. The  police party returned to the Flower Bazar Police Station where  the boxes  were opened.  Of them,  two of the boxes marked  MOs 176  and 177 contained bundles of currency notes bearing  the seal  of the  Bank totalling Rs.12,27,500 and the same were seized.      The case  presents a feature which is rather disturbing and gave  rise to  a prolonged argument lasting over several days. The  Indian Express,  Mangalore edition  and  the  two regional newspapers  Malai Murasu  and  Makkal  Kural,  both published from Madras bearing the date-line 29th May and the regional paper  Dina Thanthi,  also published from Madras of the 30th,  carried a news item that the entire amount stolen from the  Bank had  been recovered  from  the  residence  of appellant No.  2 at  Mangalore and that both the accused had been taken into custody. A similar news item appeared in the regional newspaper  Dina Thanthi  on the  30th. If  the news item  published   was  true  it  would  falsify  the  entire prosecution case  about the  alleged recoveries  at  Madras. There is however nothing on record to substantiate the story appearing  in   the  newspapers.  On  the  30th,  late  M.G. Ramachandran, the  then Chief  Minister of  Tamil Nadu, at a public function  felicitated PW  18 Smt.  Kanaka, the flower vendor, for  the exemplary  courage shown  by her  in coming forward to  help the  police in furnishing the vital clue in solving the  crime and  presented her  with a cash reward of Rs.5,000.  The  Hindu  published  from  Madras  in  all  its editions of  31st carried a news item about the function and reported that  the  Chief  Minister  used  the  occasion  to caution the  newspapers against  the danger  of  conjectural reporting of  such crimes  during  investigation,  based  on rumours unrelated  to facts,  which would not only prejudice the case  but sometimes  pave the  way for  the offender  to

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escape. He  said that  rumours were  bound to  sidetrack and mislead the  public and  even police  officers concerned  in solving the crime. After the 719 function the  Police Commissioner  is reported  to have told newsmen that  the accused  Laxmi Raj  Shetty had  been taken into custody  on Sunday  afternoon i.e.  the  29th  and  had confessed that  the cash  removed from  the strong  room had been secreted  out to  Mangalore where  his father lived. He informed that  a police  party was  already  there  and  the father Shivaram Shetty was likely to be nabbed anytime.      In the meanwhile, the family of the appellants suffered a great tragedy. On the 30th Smt. Madhavi, wife of appellant No. 2,  employed as  a School  Teacher at  Mangalore and his daughter Kumari  Usha Rani, an employee of the State Bank of Mysore, Hassan  Branch out of the sheer shame could not bear the humiliation  and committed  suicide by  walking into the Arabian Sea.  The Indian  Express and  the Hindu of the 31st carried the  news of  their suicide and it was reported that their bodies  were washed ashore on the Someswar-Ullal Beach on the outskirts of Mangalore.      The appellants  abjured  their  guilt  and  denied  the commission of  the alleged  offences. When  the accused were questioned  about  the  facts  and  circumstances  appearing against them,  they denied  their complicity  in the  crime. Appellant no.  1 asserted  that he had left for Mangalore on the 22nd  as he  was feeling  unwell. When he called upon PW 10, Chairman of the Bank, who enquired as to why he had come to Mangalore,  he told  him of his ailment. On his advice he left for Madras to resume his duties. His version is that on the 27th  afternoon when  the West Coast Express by which he was travelling,  arrived  at  the  platform  at  the  Madras Central, he saw members of the staff of the Bank, namely, PW 9 Govindaraj, Padmanabhan and Ramesh. When he went near them he was  tapped on  his shoulder  by a stranger who asked him whether  he   was  Laxmi   Raj  Shetty.  On  his  giving  an affirmative answer  he asked  him to  accompany him.  On his query he  disclosed that  he was  a police  officer. By that time the other members of the staff had stopped him and they advised him  to accompany the police. Appellant No. 2 states that he  had on  26th met  the  Chairman  of  the  Bank  and informed that his son had come to Mangalore and the Chairman wanted to speak to him. He accordingly went with his son who enquired about  his ailment and then directed him to proceed to Madras.  He admitted  that there was a search made of his house on  the night  between 26th  and 27th at Mangalore but the police did not find 720 anything. His  version is  that on the next day i.e. 27th at about 9 p.m. PW 50 accompanied by the Assistant Commissioner of Police  Sitaram  and  PW  10  and  Thalithiya,  Assistant General Manager  visited his house and told him that his son had been  arrested and  they wanted  him to  go with them to Madras. He  was advised by PW 10 to accompany the police and he was first taken to the Chairman’s house and from there to the Blue  Star Hotel at Mangalore. Early next morning all of them left  for Madras  and reached  the Flower  Bazar Police Station the same evening at 6 p.m. where he was detained for the subsequent  days and  nights till he was produced before the Court along with his son on the 31st.      The  learned   Sessions  Judge   has  relied  upon  the testimony of  PW 18,  Smt. Kanaka, the flower vendor and the other prosecution  witnesses and come to the conclusion that the circumstances  from which  the conclusion of guilt is to be drawn  have  been  fully  established  against  both  the

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accused and all the facts so established are consistent only with  the  hypothesis  of  their  guilt  and  exclude  every reasonable possibility  of their  innocence. He  accordingly convicted the  accused with  the commission  of the offences with which  they were  charged and  sentenced them as above. Ratnavel Pandian,  J. speaking from himself and Singaravelu, J. constituting  the Division  Bench, in  a singularly well- written  judgment,   has  carefully  marshalled  the  entire circumstantial evidence  and come to the conclusion that the prosecution  has  established  its  case  against  both  the accused  beyond   all  reasonable   doubt  and   accordingly maintained  the  conviction  and  sentences  passed  by  the learned Additional Sessions Judge.      The  prosecution  case  against  the  appellants  rests purely on  circumstantial evidence. The circumstances relied upon by  the prosecution  against the  principal accused for the charges  of murder  androbbery which  were parts  of the same transaction  are: (i)  The fact  that the accused Laxmi Raj Shetty  was seen  leaving the  building on  the  fateful night at about 9 p.m. as testified by PW 18 Smt. Kanaka, the flower vendor,  sitting on  the  steps  of  the  Bank  after finishing her  day’s work and the fact that the deceased was not seen  alive thereafter. The accused had gained knowledge about the  mode of  operating the  strong room  in the first week of  April 1983  when he  entered the  strong room along with PW  8 Ananthakrishnan,  PW 9  Govindaraj and  PW 12  P. Balasubramaniam and  got his doubts cleared about the method of opening the strong vault where there were Godrej bureaus, in one of which the currency notes were kept. The murder and robbery were  obviously an  inside job  by a  person who had knowledge about the 721 manner in  which access  could be  had to  the safety vault. (ii) The  accused had  gained the confidence of the deceased as a sincere and loyal worker by attending to the work every day even after the banking hours and assisting the deceased, leaving the  Bank at  about 9 or 9.30 p.m. with the deceased as was clear from the evidence of PW 5 Rangarajan, PW 6 Smt. Shasikala, PW  9 Govindaraj, PW 12 P. Balasubramaniam and PW 18 Smt.  Kanaka (iii)  The accused  had the  opportunity  of knowing about  the cash  balance available  in the Bank from the cash scroll register Exh. P 8 which was always kept open on the  table of PW 6 Smt. Shasikala whose seat was adjacent to that of the accused as is clear from the testimony of PW. 6 (iv)  The accused  had knowledge about the availability of the first  set of  keys including  the matter  key with  the deceased and the second set of keys with PW 16 Chandrasekara Holla while he worked in the Bank for a period of about nine months. He  also noticed  that PW  16 was  in the  habit  of leaving of  second set  of keys in the cupboard of his table and at  times, used  to leave the key of the cupboard in one of the  drawers. (v) The movement and conduct of the accused afterwards. After  he  was  seen  coming  out  of  the  Bank premises on  that night  at 9 p.m., his act of going towards Burma Bazar  and returning  within half an hour with a light blue colour  suitcase, then  entering into  the Bank,  again coming out of the Bank half an hour thereafter with a bag on his shoulder  and a  suitcase in  one hand  and a brief-case which the  deceased used  to carry  with him  in the  other, placing the  suitcase on  the steps of the Bank where PW 18, the flower vendor, was sitting and thereafter bringing out a large coffee  colour sky-bag and placing the same beside the suitcase, closing the outer door and the shutter and locking the same,  then  proceeding  along  Errabalu  Chettu  Street towards Burma  Bazar and  bringing an auto-rickshaw, placing

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the suitcase  and the  sky-bag with  the help  of the  auto- rickshaw  driver   in  the  auto-rickshaw  and  disappearing towards the  High Court.  (vi) His  act of not responding to the queries  put by PW 18 about the deceased whom he used to accompany every  night on closing the Bank. (vii) His act of not returning  to the  Christian Home  where he  stayed  and instead staying at Hotel Chola Sheraton on the night of 20th and the  whole of 21st. He obviously stayed at the five star hotel for  reasons of  safety as  he was  carrying the  huge amount of  about Rs.14  lakhs. (viii) His visit to Christian Home early  in the  morning of  21st at 5 a.m., going to the room, taking  bath, collecting his belongings and not taking breakfast saying that his stomach was upset. (ix) His act of attending to  his duties  at the  Bank on  the 21st to allay suspicion, making  reservation of  a first  class  berth  by train no. 27 and leaving Madras for Mangalore on the morning of the 22nd which was a Sunday (x) On reaching Mangalore 722 on the  23rd morning at 6 a.m., his act of not proceeding to the family  house there  but instead  staying at  Hotel Moti Mahal along  with the  suitcase and  the bag  containing the stolen money.  (xi) His  act of  disappearing from Madras on the 23rd  morning and  not returning  till  27th  afternoon. (xii)  The  fact  remains  that  the  currency  notes  worth Rs,12,32,000 recovered  from the  accused bear the Bank seal and have been identified to be stolen.      We had  the  benefit  of  hearing  Shri  N.  Natarajan, learned counsel  for the  appellants who  argued the  appeal with considerable  perspicuity and  resource and  an equally forceful and realistic argument advanced by Shri U.R. Lalit, learned counsel  appearing for  the State  Government. Apart from questioning  the credibility  and trustworthiness of PW 18 Smt.  Kanaka, the flower vendor, whom the learned counsel for the  appellants characterised as a got up witness by the prosecution to  furnish  the  missing  links  the  chain  of circumstances, as well as the alleged recoveries of Rs.4,500 effected by  PW 50  Deviasigamani, Inspector  of Police from the accused  Laxmi Raj  Shetty at  My Lady’s Park, Madras on May  29,  1983  and  of  the  amount  of  Rs.12,27,500  from appellant no.  2 Shivaram  Shetty, he  endeavoured to create doubts and difficulties as to the truthfulness of the entire prosecution case.  He contends  that  the  prosecution  case regarding the recovery of the stolen amount at Madras stands falsified by  the news  item carried  in the Indian Express, Malai Murasu  and Makkal  Kural of the 29th and Dina Thanthi of  the  30th  showing  that  the  entire  amount  had  been recovered from  the residence  of appellant  no. 2  Shivaram Shetty and both the accused had been taken into custody. The learned counsel  also brought out several improbabilities in the prosecuion case. It was pointed out that the accused had left Madras  by the  West Coast  Express on the 22nd morning and reached  Mangalore on  the next day i.e. on the 23rd. If that be  so, both  the father and the son were freely moving about at  Mangalore till  the 26th evening. On the 23rd they paid a  visit to the clinic of PW 11 Dr. Madhava Bhandari as the  accused   was  complaining   of  stomach  disorder  and thereafter on  the 25th  evening they  called on  PW  10  P. Raghuram, Chairman  of the  Bank who  advised the accused to return to  Madras at once. It was not till 26th evening that the accused  boarded the  West Coast  Express.  The  learned counsel contends  that if  really PW  50 became  aware  from recording of the statement of PW 18 on the 25th evening at 4 p.m. that  the  accused  was  the  person  involved  in  the commission of  murder and  robbery, he  would have  at  once flashed a  message to  the Mangalore police to intercept him

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particularly in view of the fact that a huge amount of about Rs.14 lakhs was stolen from the Bank. On their own 723 showing, a  police party  consisting of PW 50 accompanied by PW 49  instead left for Mangalore in the early hours of 26th morning, reaching there at 9.30 p.m. and contacted the local police and  thereafter conducted  a raid  at  the  house  of appellant No. 2 in the early hours of the 27th at 1 a.m. The police  would   necessarily  have  known  from  the  railway reservation that  the accused  Laxmi Raj  Shetty  under  the assumed name  of his father Shivaram Shetty, had boarded the West Coast  Express for  Madras on the 26th. They would have immediately contacted  the Madras police and intercepted the accused on  his arrival  at the  Madras Central  on the 27th afternoon at  4 p.m.  The  submission  is  that  this  lends credence to  the testimony  of  PW  9  Govindaraj  that  the accused arrived by the West Bengal Coast Express on the 27th afternoon and  was taken  into custody by the police. We are expected to  believe, the  learned counsel  argues, that the accused was  freely roaming about in Madras between the 27th and the  29th till  he was  taken into  custody at My Lady’s Park.  It   is  therefore  submitted  that  the  prosecution evidence of  the so-called  recovery  of  the  incriminating currency notes  worth Rs.4,500  from the  accused Laxmi  Raj Shetty could  not be true. As regards the testimony of PW 18 Smt. Kanaka,  the flower vendor, the learned counsel submits that it  is somewhat  strange that from nowhere this witness appeared on  the scene  on the  evening of the 21st to bring out the  circumstances that  the accused was the person last seen leaving  Bank premises  on the  20th night at 9 p.m. If really  PW  47  had  derived  knowledge  from  Ganesan,  the plumber, that  PW 18  might furnish a vital clue which would lead to  the detection of the murderer, it was expected from PW 47  and PW  48, who took over the investigation from him, that they would make every effort to track down PW 18 or her husband. It  is difficult  to believe  that PW  47 would not proceed to  Vyasarpadi on the 21st night which is only seven kilometres from  the police  station. Further,  the  learned counsel contends that the repeated visits made by PWs 47 and 48 to  Tharamani when on their own showing they knew that PW 18 had  gone to  her sister’s  house at  Vyasarpadi, creates considerable doubt  about his version. Nor did they take the trouble to track down her husband Neerappan from the Krishna Bhawan Hotel  which was  just two  furlongs from  the police station. According  to the  learned counsel,  the cumulative effect of  all these circumstances taken together renders it extremely unsafe  to rely  on the  sole testimony  of PW  18 unless  it  was  corroborated  in  material  particulars  by evidence of an independent character.      In reply  Shri U.R.  Lalit,  learned  counsel  for  the respondent mainly  contends that  even  if  the  prosecution evidence regarding the 724 recoveries were  to be  discarded, there  was ample material brought on  record which raises an inference of guilt of the appellants.  Broadly   stated,  the   learned  counsel,   in substance, advanced  a two-fold  submission, namely: (i) The course of investigation during which it was revealed that PW 18 Smt. Kanaka had information which might result in solving the murder,  and (ii)  The fact as deposed by PW 18 that the accused Laxmi  Raj Shetty  was the  person last seen leaving the Bank  premises after  locking the  front  door  and  the shutter on  the fateful  night at  about  9  p.m.  taken  in conjunction with  the  prosecution  evidence  regarding  the conduct and  movement afterwards, clearly show that he alone

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and no one else could have committed the murder because both he and  the deceased  were the  persons working late in that night. As regards the news item which appeared in the Indian Express and  the other  regional  papers  showing  that  the entire amount  stolen from  the Bank had been recovered on a search of  the house  of appellant  No. 2 Shivaram Shetty at Mangalore and  that they  have both been taken into custody, the learned  counsel contends  that the  news items  has  no evidentialy value and cannot be taken into consideration. It is pointed  out  that  the  defence  had  not  examined  the reporters  who  had  gathered  the  news  appearing  in  the newspapers and authenticate the version though the reporters had been  summoned. Further,  in a  case of this nature, the Court cannot  reject the oher reliable and credible evidence led in accordance with law merely on the publication of this kind of  unauthenticated news  item in the press. It is said that if  the Court  were to act on such news item though not brought into  evidence  in  accordance  with  law  and  were inclined to  dispose of  a case  on such news item, then the Court had  either to  convict a person or acquit him on such publication of  news item  ignorning the  overwhelming legal evidence  brought  on  record.  There  is  in  our  opinion, considerable force in his submissions.      The law relating to the proof of a case based purely on circumstantial  evidence   has  been   settled  by   several authorities of  this Court  as well as of the High Court. In Earabhadrappa v. State of Karnataka, [1983] 2 SCC 330 it was observed:           "In cases  in which  the evidence  is purely  of a           circumstantial nature, the facts and circumstances           from which the conclusion of guilt is sought to be           drawn  must   be  fully   established  beyond  any           reasonable  doubt  and  the  circumstances  so  es           tablished should  not only  be consistent with the           guilt of the accused but they must in their effect           be such  as to  be entirely  incompatible with the           innocence of the accused and 725           must exclude  a  reasonable  hypothesis  with  his           innocence." Shri Natarajan, learned counsel appearing for the appellants rightly points  out that  in such  cases there is always the danger that  ’conjecture or  suspicion may take the place of legal  proof’   and  draws  our  attention  to  the  caution administered by Baron Alderson to the jury in the oft-quoted passage in Reg v. Hodge, [1838] 2 Law 277 where it was said:           "The mind  was apt  to take a pleasure in adapting           circumstances  to   one  another,   and  even   in           straining them a little, if need be, to force them           to form parts of one connected whole; and the more           ingenious the  mind of  the individual,  the  more           likely  was   it,  considering  such  matters,  to           overreach  and  mislead  itself,  to  supply  some           little link  that is  wanting, to take for granted           some fact  consistent with  its previous  theories           and necessary to render them complete." It is  therefore well  to remember  that in  cases where the evidence is  of a  circumstantial nature,  the circumstances from which  the conclusion of guilt is to be drawn should in the first intance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a  conclusive nature and tendency and they should be such as to  exclude every  hypothesis but  the one proposed to be proved. In other words, there must be a chain of evidence so

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far complete  as not  to leave  any reasonable  ground for a conclusion consistent  with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.      In spite  of the  forceful arguments addressed to us by the learned  counsel for  the appellants,  we have  not been able to  discover any  infirmity in  the  reasoning  or  the conclusions arrived  at by  the learned  Additional Sessions Judge or  the High  Court. Nor can it be said that they have just  fallen   into  an  error  against  which  caution  was administered by  Baron Alderson in Reg v. Hodge. The learned counsel began  his address  by stating  that if  we were  to accept the  conclusion arrived  at by the learned Additional Sessions Judge  and the High Court that there was nothing to impeach the  credibility of  PW 18  Smt. Kanaka,  the flower vendor as  a truthful witness and that her evidence was such as to  accord with  the ordinary  course of events and human nature, it  would ’tend  to tilt  the  balance  against  the appellants.’ That  really furnishes  a  key  to  the  entire prosecution case.  We have  therefore  minutely  been  taken through the testimony of PW 18 Smt. 726 Kanaka by  learned counsel  for the  parties  who  presented their respective  points of  view with consummate skill, and after going through her evidence over and over again we have no doubt  whatever that  the  Courts  below  were  perfectly justified in  reaching the conclusion that she was a witness of truth and there was no reason to discard her testimony or that of the other prosecution witnesses. Once the version of PW 18  Smt. Kanaka that the accused was the person last seen leaving the  Bank premises  on the  20th night  at 9 p.m. is accepted with all his subsequent movements, it would be seen that every other circumstance appearing from the evidence of the other prosecution witnesses fits in and it lends support to the irresistible inference drawn from the attendant facts and circumstances  by the  Courts below  that  the  deceased Gnanasambandham was  done to death by no one else except the accused Laxmi  Raj Shetty  and that  both the  accused  were guilty of the offences with which they were charged.      We shall  briefly enumerate  the circumstances  arising from the  evidence adduced by the prosecution along with our findings thereon.      (1) The  accused had  occasion to  learn the  method of operating the  safety vault. It transpires from the evidence of PW  3 P.T.  Rajan, Chief Manager and Regional Development Officer of  the Bank  that in  that  building  the  Regional Development Office  was functioning on the second floor. The Main Branch  was on the first floor and the ground floor was used as  a car  park and  godown. The  strong room  was on a mezzanine floor over the first floor and reached by a flight of stairs.  The walls  of the  strong room  were constructed with RCC. There was an iron door fixed to that room supplied by Godrej  company of the thickness of 3" having a dimension of 6  ft x  3 ft.  There was  a rotating wheel fitted to the iron door.  It had  to be  turned to the right and then both the sets  of keys inserted in the upper and lower key holes. On the  lever  being  released  the  iron  door  would  open outside. Inside  there was another door with a lock attached and it  would open  inside. The strong room was divided by a partition wall  with a  wooden door.  In one  portion of the strong room  there were  safe deposit  lockers. In the other portion there were two Godrej bureaux, of which one was used for  keeping  currency  notes  and  the  other  for  keeping valuable documents  viz. blank term deposit receipts, cheque books, drafts etc. When the Bank closed the outer glass door

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had to be locked and then the shutter pulled down and locked at various places from outside. It is in evidence that there was no night watchman of the Bank.      It appears  from the testimony of PW 8 Ananthakrishnan, PW 9 727 Govindaraj, PW  12 Balasubramaniam  and PW  16 Chandrasekara Holla that  the accused  gathered knowledge about the manner in which the strong room could be operated. It is clear from their evidence  that access  to the strong room could not be had except  by a  person acquainted with the manner in which it was  operated. According  to these  witnesses the accused got an opportunity when in the first week of April, the wife and children  of PW  8 Ananthakrishnan, Bank Manager visited the Bank  and evinced  a desire  to see how the safety vault was operated.  While he  was going  up the stairs along with the  members  of  his  family  and  PW  12  Balasubramaniam, attendant, the accused who was standing with PW 9, expressed a desire  to come up and see the strong room. Although taken aback at  the unusual  request, PW  8 permitted them to come up. With  his inquisitiveness  the accused  cleared all  his doubts about  the mode  of operating  the safety  vault  and gained sufficient knowledge.      From the  evidence of  PWs 5,6,9,12  and 16 it is amply clear  that   the  accused   Laxmi  Raj  Shetty  gained  the confidence of  the deceased as a busy and hard-working young man by remaining in the premises and continuing to work even after the  banking  hours  and  assisting  the  deceased  in disposing of the day’s work. He also had knowledge about the availability of  the first  set of  keys of  the strong room with  the   deceased  and  must  have  noticed  that  PW  16 Chandrasekara Holla,  who had  the custody of the second set of keys, was in the habit of leaving them in the cupboard of his Godrej  table. It  appears from the evidence of PW 15 V. Kannan, Manager  in the  Physical Development Institute that on the  20th at  about 6 p.m. the accused left the Institute within half an hour after doing some exercises. Further, the accused had  the opportunity  of knowing  the  cash  balance available in the Bank on the 20th night from the Cash Scroll Register Exh.  P 8 which was kept open on the table of PW 6, which was adjacent to the table of the accused.      (2) The fact that the accused Laxmi Raj Shetty was last seen leaving the Bank premises. The testimony of PW 18, Smt. Kanaka,  the   flower  vendor,  tends  to  show  that  after finishing the  day’s work,  she came and sat on the steps of the Bank.  At about 9 p.m. she saw the accused coming out of the Bank  premises and  locking the  outer glass  door.  She testifies that  she used  to sell flowers at the junction of Thambu Chetty  Street and  Errabalu Chetty  Street, not  far from the Bank. According to her, she was originally residing at Vyasarpadi  but six  months prior  to the  occurrence she shifted her  residence to  village Tharamani. Her version is that every day she used to begin selling 728 flowers in  the day  from 6  a.m. to  8 p.m.  and thereafter return to her house but on Thursdays and Fridays due to rush of customers  she was constrained to remain late upto 9 p.m. and since  she could not get a bus at that hour, she used to sleep on  the raised  platform near  the outer  door of  the Bank. She  knew the deceased Gnanasambandham who used to buy flowers from her, as well as the accused Laxmi Raj Shetty as they both  used to  come out  of the Bank together at night. The deceased  would give  the keys  to the accused who would lock the  outer glass  door and  thereafter  pull  down  the shutters and lock the same and return the keys. The deceased

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would then  check the  locks and thereafter both would leave the premises. She distinctly remembered that on Friday prior to the  incident the  deceased while buying flowers enquired from her  whether she  used to  sleep there  and she  had to explain that  on thursdays and Fridays she could not go back home due  to late hours as there was no connecting bus. That was the last when she saw the deceased alive.      On the  night in  question while she was sitting on the steps of the Bank after finishing her day’s work she saw the accused Laxmi  Raj Shetty  coming out  of the  Bank premises alone by  opening the  glass  door,  closing  the  same  and proceeding towards  Errabalu Chetty  Street. Her  version is that he  came back  half an  hour later  with a  light  blue colour suitcase and again re-entered the Bank by opening the glass door. After about half an hour the accused came out of the Bank  by opening the glass door with the suitcase in one hand, a  bag on  his shoulder  and the  briefcase which  the deceased used  to carry,  in the other. He kept the suitcase on the  steps of  the Bank  where she  was sitting  and  re- entered the  premises and  brought out a large coffee colour skybag and  kept the  same beside  the suitcase,  locked the glass door,  pulled down  the shutters  and locked the same. She states  that when  the accused  pulled down the shutters she asked  him whether  the Periya Ayya, evidently referring to the  deceased, had not come, the accused did not give any reply.  Thinking  that  he  had  not  understood  her  words properly, she  repeated the same query to which there was no response.  After  locking  the  shutters  the  accused  went towards Errabalu  Chetty Street leaving the suitcase and the skybag on the steps of the Bank.      It was  a festival  day and the deity of Kaliamman Koil was passing  along Thambu  Chetty Street.  PW 18 was feeling unwell and  wanted to  offer camphor  to the deity but could not leave  the  place  because  the  accused  had  left  the suitcases on  the steps. The deity was taken in a procession through the street, Thereafter, according to her, the 729 accused came  in an  auto-rickshaw and  with the help of the autorickshaw driver  the  accused  carried  and  placed  the suitcase and  the skybag  with  some  difficulty.  When  she queried why had he left the suitcase when there were a large number of  auto-rickshaws passing  that way, the accused did not give  any reply.  She further  states that  as  she  was running temperature  she slept  on the  steps of  the  Bank. Early next  morning at  6 a.m.  she left  for her  house  at Tharamani and  from there  she went to her sister’s place at Vyasariadi after  informing her  husband.  She  returned  to Tharamani 4-5  days later  feeling better  when  the  police examined her.      We have  no doubt in our mind that PW 18 Smt. Kanaka is a natural  witness and  there is  a ring  of  truth  in  her version.  Though  she  was  subjected  to  a  searching  and incisive  cross-examination   by  learned  counsel  for  the appellants,  nothing   was  brought   out  to   impeach  her credibility as  a truthful  witness. There was no reason for her to  falsely  implicate  the  accused  Laxmi  Raj  Shetty particularly when the vital clue furnished by her led to the unravelling of  the crime and recovery of the huge amount of money. We  are not impressed with the submission that merely because PW  18 was  given a  cash award  of Rs.5,000  by the Chief Minister she was a got up witness and must be regarded as ’a witness who springs from a tainted source’.      It is  not a  phenomenon unknown in the world today for the Government  to offer  cash rewards to citizens for their act of  courage and  bravery by  coming forward  with  vital

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information which  results in  the ultimate detection of the offender. In  such cases  there is  no question of impairing the testimonial  fidelity of  such  person  as  a  competent witness. Learned  counsel however  drew our attention to the observations of  this Court in Lingala Vijay Kumar & Ors. v. Public Prosecutor, Andhra Pradesh, [1979] 1 SCR 2 where this Court viewed  with concern  the practice  of  offering  cash rewards to  prosecution witnesses  when the  case  was  sub- judice. We  may say  at once that the Court in that case did not discard  the testimony  of the  prosecution witnesses on that account.  All it  did in  that case  was to endorse the expression of  opinion of  the learned  Sessions Judge  that such rewards  for bravery may be euphemistic officialese but are apt to be construed by the accused as purchase price for testimonial  fidelity   and  the  Government  ought  not  to prejudge the case and award any cash reward to a citizen for his exemplary  civic sense since he may figure as a material witness.  We   need  not  say  anything  more.  The  learned Additional Sessions  Judge and  the High  Court  were  fully aware of  this aspect  and have scrutinised the testimony of PW 18 with meticulous care and we agree with them 730 that merely  because PW  18 was  rewarded for her courage in coming forward  to help  the police her testimony should not be  viewed   with  suspicion.  She  withstood  a  close  and searching cross-examination  but her  veracity as a truthful witness remains unshaken.      (3) Purchase  of a  suitcase and  a skybag  from  Burma Bazar: The testimony of PW 18 Smt. Kanaka finds support from PW 19  Ramaswami, a dealer in suitcases in Burma Bazar. This witness states  that at  about 9  or 9.15 p.m. on 20th May a fair-complexioned, tall  and lean  person aged  about  24-25 years, meaning the accused, came to his shop and purchased a light blue  colour suitcase for a sum of Rs.200 which amount be paid  in currency  notes of the denomination of Rs.20 and also wanted  one skybag.  Since he had no stock he fetched a coffee colour  skybag from  his  brother-in-law’s  shop  and showed it  to the  accused who  purchased the same, also for Rs.200 and  paid the  price again  in currency  notes of the denomination of  Rs.20. According to him, half an hour later the same  person came  back and  got into  an  auto-rickshaw driven by PW 31 Venkatesan whom he knew. The testimony of PW 31 Venkatesan,  auto-rickshaw driver,  also corroborates  PW 18. This witness deposes that he was an auto-rickshaw driver bearing registration  no. TMV  9496 and  he used to park his auto near  the shop of PW 19. According to him, on the night in question  at about 10.15 p.m. a lean and tall person fair in  complexion,  meaning  the  accused,  engaged  his  auto- rickshaw to  go to  Hotel Chola  Sheraton from Thambu Chetty Street. He  further states  that when  he  had  driven  that person to  Thambu Chetty  Street he  was asked  to stop  the auto-rickshaw outside  the Bank.  On the  steps of  the Bank there was  a light  blue colour  suitcase  together  with  a coffee colour  skybag.  As  the  suitcases  were  heavy,  he together with that person lifted the same and placed them in the auto.  Thereafter, he  drove on  straight to Hotel Chola Sheraton and reached there at about 11 p.m. At the hotel, PW 21 Derick,  bell boy  placed the  luggage in the trolley and took them inside the hotel accompanied by the accused. PW 31 further states that the hire charges were fixed at Rs.15 and the accused  gave him  a 20 rupees currency note and he gave back Rs.5  and went  away. His  version is  supported by the entry in  the trip  sheet Exh. P41. It is contended that the evidence of  PWs 19 and 31 with regard to the identification of the accused Laxmi Raj Shetty before the Court of Sessions

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for the  first time  without any  prior test  identification parade was  not of any value but we are not impressed. Later both these  witnesses saw  the  photograph  of  the  accused carried by  PW 50 Deviasigamani and identified him to be the person  involved.  In  the  world  as  a  whole  today,  the identification by photographs is the only 731 method generally  used  by  the  interpol  and  other  crime detecting agencies  for identification  of criminals engaged in drug  trafficking, narcotics  and other economic offences as also  in other  international crimes. Such identification must take  the place  of a test identification. Further, the evidence of  PW 19  that the  person concerned  purchased  a coffee colour skybag along with a light blue colour suitcase stands corroborated by the subsequent recovery of the coffee colour skybag  from PW  33 Smt. Justin D’Costa with whom the accused’s sister Km. Usha Rani used to stay, from a house at Hole Narsipur,  District Hassan. Similarly, the testimony of PW 31 finds support not only from the evidence of PWs 18 and 19 but  also from the entry in the trip-sheet as well as the entries in the Arrival and Departure register of Hotel Chola Sheraton.      (4) Stay at Hotel Chola Sheraton under the assumed name of Mohanraj:  The fact  that the  accused checked into Hotel Chola Sheraton,  a five-star  hotel, on  the night  of 20th, stayed the  whole of the 21st and his departure therefrom on the 22nd morning at 9 a.m. is brought out from the testimony of PWs 20-25 as also from the hotel register which show that the accused  stayed in  the hotel  under the assumed name of Mohanraj. PW 21 Derick, bell boy at the hotel, states that a tall person  about 6  feet in height with curly hair came to the hotel in an auto-rickshaw that night carrying with him a light blue  colour suitcase  and a  brown colour  travellers bag. He  states that  the luggage was heavy and therefore he brought a trolley and put the suitcase and the skybag in the trolley and  took the  same to  the reception  counter. From there PW  22 Kalyanasundaram,  another bell boy, took charge of  the   luggage.  PW  23  Elizabeth  Mitra,  receptionist, testifies that  she gave  him a  registration card Exh. P 24 and asked him to fill in the details. When that person asked PW 23 to fill up the form she told him that as per the rules only the  occupant concerned had to fill up the form. So the accused filled it up and gave it to her. He gave his name as ’Mohanraj’. She allotted room no. 230 and when she wanted an advance of Rs.1,000 the accused told her that he would go up to the  room and  send the  money. According  to her,  PW 22 brought an  amount of  Rs.1,040 in  currency  notes  of  the denomination of Rs.20. She credited Rs.1,000 towards advance and gave  receipt for  the same  and  returned  the  balance amount of  Rs.40 to PW 22. PW 22 went up to room no. 230 and found the accused standing outside. He told him that the key to the  door was  inserted from inside and when he came out, the door got automatically locked. PW 22 accordingly went to the receiptionist  and brought the master-key with which the room was opened. He gave back Rs.40 out of which the accused gave him Rs.20 732 as tip.  This witness identified the accused in the Court as the occupant  of the  room. When  the accused checked out on the 22nd  morning he  made an entry in the hotel register to that effect.  The testimony  of PW 23 is corroborated by the entry in  the Arrival  and Departure register Exh. P 26. The relevant entry marked Exh. P 27 shows his arrival and Exh. P 28 shows  his departure.  PW 24  Alexander Alwyn  Fernandez, Cashier at the hotel approved the bill Exh. P 29 relating to

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Mohanraj who  stayed in  Hotel Chola Sheraton containing the details with  regard to the room rent, advance payment, room service bills  etc. He  states that  he made  the  last  two entries in  Exh. P  29 at  the time of departure of the said Mohanraj. PW  25 Rocky  Williams, Senior Lobby Attendant has produced the  departure card  prepared by  him marked Exh. P 39. It is true that they had identified the accused from the photograph shown to them by PW 50 and that was sufficient to lend support  to their identification in Court. Further, the fact remains  that  the  person  who  came  to  Hotel  Chola Sheraton on  the night  of the  20th at 11 p.m. and alighted with two  heavy suitcases  was the  person brought by PW 31, auto-rickshaw  driver,   from  the  Bank  and  he  has  been indentified and named by PW 18 as the accused. Exh. P 24 the registration card  of Hotel Chola Sheraton gives the address of the  occupant of room no. 230 as Mohanraj, Hole Narsipur, Hassan. The description given is of a ’tourist’ and the date of arrival  as 20.5.83  at 23.05  on arrival from Bangalore. The departure date is given as Bangalore on 22.5.83.      It is  somewhat strange  that  the  accused  Laxmi  Raj Shetty who  was merely  a Clerk in the Bank should have gone and stayed  in Hotel  Chola Sheraton,  a five-star hotel, on the night  in question  unless it was for purposes of safety as he  was carrying  the huge amount of about Rs.14 lakhs in the suitcase  and the skybag. There is evidence to show that the accused  filled up  the application form for reservation of a  first class  ticket Exh.  P 37  and signed the same as ’K.L.R. Shetty’  giving the  name and  address  as  Shivaram Shetty, Kodial  Bail, Bangalore i.e. of his father. The stay of the  accused at  Hotel Chola  Sheraton at  Madras on  the night of  the 20th, the whole of the 21st till his departure on the  22nd morning under the assumed name of Mohanraj, the act of  leaving Madras  on the  22nd morning  by train  in a first  class  compartment  under  the  name  of  his  father Shivaram Shetty,  giving a  wrong address  of Kodial Bail at Bangalore which  is not  there, are  facts which  speak  for themselves.      (5) Stay  at Hotel  Moti Mahal  at Mangalore:  There is unimpeachable evidence  to establish  that the accused Laxmi Raj Shetty on his 733 arrival at Mangalore by train on the 23rd morning at about 6 a.m.instead of proceeding to his father’s house checked into Hotel Moti  Mahal with  his luggage.  The testimony of PW 32 William Anchan,  Receptionist is  that on the 23rd morning a tall, fair-complexioned  person meaning the accused, came to the hotel  and gave his name as ’Kiran Kumar’ and address as Hole  Narsipur,   Hassan  District,   saying  that   he  was proceeding to Bangalore. This is borne out from the entry in the Arrival  and Departure  register Exh.  P 42. The accused was allotted  room No.  204 and  he made  an entry  to  that effect. According  to him,  the said  Kiran Kumar  left  the hotel  on   the  25th   along  with  two  suitcases.  PW  35 Padmanabhan, room boy testifies about the occupation of room No. 204 by the accused from the 23rd to 25th. He states that the suitcases  were heavy  and that he carried them from the room and  brought them  down and put them in an autorickshaw in which  the occupant  left the  hotel and  identified  the accused Laxmi  Raj Shetty  as the  person who  occupied  the room. This  witness identified  the suitcases M. Os. 176 and 177  which   were  subsequently  seized  on  the  30th  from appellant No.  2 Shivaram  Shetty containing  currency notes worth Rs.12,27,500  as the  suitcases carried by him. Again, these witnesses  on being shown the photograph carried by PW 50 identified  him to  be the  person involved. Further, the

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testimony of  PW 34  Surendran, Reservation Clerk, Mangalore Railway  Station  shows  that  the  accused  filled  in  the reservation slip  Exh. P  47 giving  his  name  as  Shivaram Shetty  with   address  as   Hole  Narsipur,  Hassan.  On  a comparison   of   the   handwriting   appearing   from   the registration card Exh. P 24 filled up by the accused when he checked into Hotel Chola Sheraton with that appearing on the reservation form  Exh. P  47, with  the handwriting  of  the accused particularly  the similarity in describing Bangalore as ’B’lore’  and Mangalore  as ’M’lore’,  the learned Judges have come  to the  conclusion that  both the  documents were writting by  the one  and the  same person  i.e. the accused Laxmi Raj Shetty.      (6) Recovery of coffee colour skybag from the residence of late  Kumari Usha  Rani, sister  of the  accused: Next we have the  testimony  of  Pw  33  Smt.  Justin  D’Costa,  the colleague and  roommate of  the deceased  Kumari Usha  Rani, sister of the accused Laxmi Raj Shetty. She states that both of them were working in the State Bank of Mysore and staying together in a room at Hassan. According to her, on the 21st, she along  with Usha Rani and others went to Mangalore after attending to  their duties  at the Bank. She states on their return on the 26th Usha Rani brought along with her a coffee colour skybag  saying that  it had  been presented to her by her brother  who was  working in  the Karnataka  Bank,  Main Branch, Madras. She further states that on 734 the 29th May the Indian Express, Mangalore edition carried a newsitem relating  to  the  Karnataka  Bank,  Main  Branch’s Manager’s murder at Madras implicating the accused Laxmi Raj Shetty. Usha  Rani tried  to contact  her parents  over  the telephone but she could not get the line and thereafter, she told her  that she  was  leaving  for  Mangalore  but  never returned. PW 33 also states that on the 31st she read in the local Kannada  newspaper that  both Usha Rani and her mother had committed  suicide by  drowning themselves in the ocean. On the  6th June,  PW 50 came to her house and recovered the coffee colour skybag marked M.O. 175 from her possession.      7. Recovery  of the stolen money belonging to the Bank: The  recovery   of  Rs.4,500   in  currency   notes  of  the denomination of  Rs.5 bearing  the seal of the Bank from the accused Laxmi  Raj Shetty  on May  29,1983 at 2 p.m. when he was arrested  at My Lady’s Park, and the remaining amount of Rs.12,27,500  in   bundles  of   currency   notes   of   the denominations of  Rs. 100,  50, 20,  10 and 5 from appellant no. 2  Shivaram Shetty  on  the  30th  opposite  the  Madras Central while  he was  on his way in a cycle-rickshaw. These recoveries have  been proved by the Investigating Officer PW 50 Deviasigamani  as well  as the  seizure witnesses  PW  37 Neelakandan, PW  41 J.  Kumar and  one Sekar.  There  is  no reason to disbelieve their testimony particularly when it is an undisputed  fact that  the amount of Rs.12,32,300 belongs to the Karnataka Bank.      We thought  that the  cumulative effect  of  all  these circumstances appearing  was sufficient  and  conclusive  to raise an  inference of  guilt. According  to learned counsel for the parties, however, the truth of the prosecution case, particularly recoveries  at Madras,  are rendered improbable for two  reasons: (i)  The report  in  the  Indian  Express, Mangalore edition  and the  regional newspapers Malai Murasu and Makkal  Kural on  the 29th  and Dina Thanthi on the 30th that both  the  accused  had  been  taken  into  custody  at Mangalore  and   the  entire  money  stolen  from  the  Bank recovered from  the residence  of appellant  no. 2  Shivaram Shetty. (ii)  The admission of the prosecution’s own witness

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PW 9 Govindaraj that the accused Laxmi Raj Shetty arrived at Madras by  the West Coast Express on the 27th afternoon at 4 p.m. and  was taken  into  custody  by  the  police  at  the platform. Undoubtedly, each of these circumstances by itself was sufficient  to falsify  the entire  prosecution case  as regards the  alleged recoveries  at Madras  and therefore we heard learned counsel for the parties at considerable length but nothing really turns on them. 735      Learned counsel  for  the  appellants  with  consummate skill tried to create, as he was entitled as counsel for the defence, to  break the  chain of  circumstances and  to show that there  are various  missing links in an effort that the Court may  give the accused benefit of doubt. We are afraid, that is not a proper approach for the Court to adopt. In the present case,  the circumstances were closely linked up with one another  and the  Court would be misdirecting itself and commit serious  error of  law if  it were to separately deal with each  circumstance, rejecting  the circumstances one by one and  then acquitting  the accused on the ground that the incriminating circumstances  brought out were not consistent with the  guilt of  the  accused.  There  can  be  no  doubt whatever that  the circumstances  enumerated above  has been cogently and  firmly established  by the  prosecution which, taken cumulatively,  form a  chain so complete that there is no  escape   from  the  conclusion  that  within  all  human probability the crime was committed by the accused Laxmi Raj Shetty and none else.      As to  the first  the  accused  Laxmi  Raj  Shetty  was entitled to  tender the  newspaper report  from  the  Indian Express of  the 29th and the regional newspapers of the 30th along with  his statement  under  s.  313  of  the  Code  of Criminal Procedure,  1973. Both  the accused at the stage of their defence  in denial  of the  charge  had  summoned  the editors of  Tamil dailies  Malai Mursau and Makkal Kural and the news reporters of the Indian Express and Dina Thanthi to prove the  contents of the facts stated in the news item but they dispensed  with their examination on the date fixed for the defence  evidence. We cannot take judicial notice of the facts stated  in a  news item being in the nature of hearsay secondary evidence,  unless proved  by evidence  aliunde.  A report in a newspapers is only hearsay evidence. A newspaper is not  one of  the documents referred to in s. 78(2) of the Evidence Act,  1872 by  which an  allegation of  fact can be proved. The  presumption of genuineness attached under s. 81 of the Evidence Act to a newspapers report cannot be treated as proved of the facts reported therein.      It  is  now  well-settled  that  a  statement  of  fact contained in  a newspapers  is merely  hearsay and therefore inadmissible in  evidence in the absence of the maker of the statement appearing  in Court and deposing to have perceived the  fact   reported.  The  accused  should  have  therefore produced the  persons in  whose presence  the seizure of the stolen money  from appellant  no. 2’s house at Mangalore was effected or  examined the  press correspondents  in proof of the truth  of the contents of the news item. The question as to the admissibility of 736 newspaper reports  has been  dealt with  by  this  Court  in Samant N.  Balakrishna v.  George Fernandez  & Ors.,[1969] 3 SCR 603.  There  the  question  arose  whether  Shri  George Fernandez, the  successful candidate  returned to Parliament from  the   Bombay  South   Parliamentary  Constituency  had delivered a  speech at  Shivaji Park  attributed to  him  as reported  in   the  Maratha,  a  widely  circulated  Marathi

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newspaper in Bombay, and it was said:           "A newspaper  report without  any further proof of           what had actually happened through witnesses is of           no value.  It is  at best  a second-hand secondary           evidence. It  is well known that reporters collect           information and pass it on to the editor who edits           the news  item and  then  publishes  it.  In  this           process the  truth might get perverted or garbled.           Such news items cannot be said to prove themselves           although they may be taken into account with other           evidence if the other evidence is forcible." We need  not burden  the judgment with many citations. There is nothing  on record  to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence  of appellant  no. 2  at  Mangalore.  We  have therefore no  reason to  discard the  testimony of PW 50 and the seizure  witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged.      As to  the  second,  much  emphasis  was  laid  on  the statement made  by PW  9 Govindaraj showing that the accused Laxmi Raj  Shetty was  taken into  custody  at  the  Railway Station on  the 27th  when he  arrived  by  the  West  Coast Express.  It   was  submitted  that  the  admission  of  the prosecution’s own  witness PW  9 about  the  arrest  of  the accused on the 27th was a serious infirmity which shows that the  prosecution  case  about  the  alleged  recoveries  was concocted and  untrue. We  have gone through the evidence of PW 9 with care. It cannot be forgotten that this witness and the accused  were appointed  together as Probationary Clerks and obviously  he is  trying to  help the  accused.  We  are satisfied that  the  Courts  below  were  justified  in  not placing any  credence on the statement made by this accused. It is  pertinent to  mention that  the alleged statement has been  brought  out  during  the  cross-examination  of  this witness by learned counsel appearing for appellant no. 2. It would certainly  have been  better for the Public Prosecutor to have  the witness  declared hostile with a view to cross- examine him  and also  called witnesses  from  the  Bank  to contradict him. This was unfortu- 737 nately not  done but  that would  not  have  the  effect  of destroying the  entire prosecution case having regard to the fact that  the substantial  portion of the stolen amount has been recovered  from both  the accused.  It is  not disputed that the  money recovered  belongs to  the Bank.  It is  not suggested that  such a  large amount as Rs.12,32,000 bearing the seal of the Bank would have been planted on the accused. In the  premises, we are satisfied that the finding of guilt reached by  the learned  Additional Sessions  Judge and  the High Court  after a  proper and  careful evaluation  of  the facts and  circumstances  appearing  does  not  warrant  any interference.      In the  fact and circumstances of this particular case, we direct that the sentence of death passed on appellant no. 1 Laxmi  Raj Shetty  be commuted  to one of imprisonment for life. The  evidence does  not  clearly  indicate  the  exact manner in  which the  murder was committed. It is noteworthy that appellant  No. 1  had not taken with him any weapon for assaulting the  deceased but used two stitchers lying in the Bank premises,  indicating that  the  murder  was  not  pre- planned. Looking  to the nature of the weapon used, if seems to us  that the  accused acted under a momentary impulse. In the circumstances,  we direct that the death sentence passed on appellant  No. 1  should be  converted into  one for life

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imprisonment.      Subject to  this modification,  the appeal fails and is dismissed.  The   judgment  and   sentences  passed  on  the appellants by  the learned  Additional  Sessions  Judge,  as affirmed by  the High  Court in  appeal,  are  upheld  being appropriate.  The   sentences  passed   on  them  shall  run concurrently. S.L.                                  Appeal dismissed. 738