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PETITIONER: RONNY @ RONALD JAMES ALWARIS ETC.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       05/03/1998

BENCH: M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT: With Criminal Appeal Nos. 1065-66 of 1997.                       J U D G M E N T QUADRI, J.      The appellants  [Nitin Anil  Swargey (A  -1),  Ronny  @ Ronald James  Alwaris (A-2)  and Santu  @ Santosh Balkrishna Desai (A-3)], in these three appeals, have been found guilty of offences  under Section  302 read with Section 34 IPC and are condemned  to death;  they are  also  awarded  different punishments under  various provisions  of the  Indian  penal Code on  their trial  by  the  learned  Additional  Sessions Judge, Pune  in Sessions  Case No. 574 of 1992 vide Judgment dated April  28/29, 1995.  In regard  to sentence  of  death awarded to  the three  appellants,  the  learned  Additional Sessions Judge referred the case, Confirmation Case No. 1 of 1995, to  the High  Court of  Bombay, which  was heard along with three appeals filed by the above said three appellants. They were disposed of by the High Court by a common judgment dated March  27, 1996,  confirming  the  conviction  of  and sentences  awarded  to  the  appellants.  Against  the  said judgment, by special leave, these appeals are filed.      The case set up by the prosecution is as follows:      A new  colony, Varsha Park Society, is situate at Baner road near  Pune. Among  newly  constructed  houses  are  two bungalows,  ’Rooman   Bungalow’  of   Mr.  Mohan  Ohol,  the president of, and ’Rohini Bungalow’ of Mr. Vyankat Krishnan, the Secretary  off the  Society, which  are separated  by  a Kutcha road. In Rooman bungalow a well placed family of Ohol was residing.  The family comprised of four members, namely, Mr. Mohan  Ohol, a  Mechanical Engineer,  who was working as Executive  officer   in  Kirloskar   Pneumatic  Company   at Hadapsar, Fune;  Mrs. Ruhi Ohol, Ph. D., a research scholar, who having worked as Head of the Department of Master Degree in business  management (M.B.A.),  had started  working with the Tata  Management Institute as visiting professor and was organising seminars  for M.B.A.  students; a seventeen years old son  Mr. Rohan Ohol, a student studying in the last year of the  Computer Engineering  course and a sixteen years old daughter, Ms.  Reina Mohan  Ohol, who  was doing  course  of diploma of  Hotel Management  and  Catering  Technology.  To undergo practical training programmed of two months, on July

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8, 1992,  she left  pune for Bombay where she was staying in MLA Hostel.  Out of  the relations  of Mr.  Mohan Ohol,  his brother,  Mr.  Vijay  Ohol  who  was  working  as  Assistant Commissioner Revenue,  his sisters,  Mrs. Mandakini  Gaekwad and Mrs.  Rajni, his nephews Viren S/o Mr. Vijay Ohol, Nitin Anil Swargey  (A-1) S/o  Mrs. Rajni and niece Rhoda D/o Mrs. Mandakini and Mrs. Viola Muzaffar (mother of Mrs. Ruhi Ohol) who was  a cancer  patient and  was undergoing  treatment in Ruby Hospital, need be mentioned.      Nitin Anil Swargey (A-1) and his two friends, Ronny and Santu, A - 2 and A- 3 reside at Borivili, Bombay, whereas A- 2 resides  at Vasai, Distt. Thane, Bombay. They went to pune on July  18, 1992. There they contacted Tulsi Bhagwan Shetty (PW -46),  a  partner  of  Natraj  Hotel  for  a  room.  For obtaining the  room, A-1  signed, what  is known as A Form ( Article 98).  They were  given Room No. 16 in that hotel. it appears A-  1 left  the hotel  but A-2  and A-3 stayed there till the morning of 20th July. Ramesh Madhavakar ( PW - 47), a room  boy, took  them to  that room  and looked after them during their stay. After A- 1 joined them on 20th July, they left. They  paid the  charges of  the hotel  under receipt ( Article 97). They asked PW-46 about tourist vehicle to go to Panchgani. He  suggested  them  to  approach  Deccan  luxury Service, near  Deccan Gymkhana,  Pune. They  Went there  and contacted Dadasaheb Bhagaji Dhumal ( PW- 69), Manager of the said Deccan Luxury Service. As no vehicle was available with Deccan Luxury  Service, he  arranged Maruti Van No. MH- 15A- 263 of  Sri Babar,  a sub-contractor,  whose driver was paid Rupees two hundred. The name of the hirer was noted as Sunil Desai of  1312, Shivaji Nagar, Pune on the chit (Article 89) (Exhibit 258)  for booking  the vehicle, which was signed by A-1. They  then went to the hotel, took the luggage and left the hotel  at about  1.30 P.M.  From the  statement  of  Mr. Sanjay Mantri  (PW-45) it  has come  on record that from his medical shop,  A-1 purchased  adhesive tape.  At about  6.30 P.M., they  came to  Bharti  Vidyapeeth  Rickshaw  Stand  at Dhankawadi, pune and hired rickshaw bearing Registration No. MPF-1044. The  rickshaw driver  (PW -42)  who was  also  the owner of  the said  rickshaw, took  them to  Deccan Gymkhana near Lalit  Mahal Hotel  on  Fergusson  College  Road.  From there, they went to Baner road ahead of Green Park Hotel. To the left  side of  that hotel  is a  kutcha road  leading to Varsha Park Society, which had become slushy due to rain. So the rickshaw driver refused to go further on the road but A- 1 who was said to be wearing goggles took out a revolver and directed him  to proceed.  Accordingly, he advanced further. The rickshaw  was stopped  near the  Rooman bungalow wherein the lights  inside and outside were ’on’. In the verandah of the bungalow,  there persons  were talking Rohan and his two class mates,  K.S. Pradhan  (PW-29) and Rajesh Sundaram (PW- 34). PWs.  29 and  34, stated  that they  were  students  of Computer  engineering   in  Pune   Institute   of   Computer engineering Technology  at Dhankavadi;  that rohan was their friend from  the first  year of  the course;  that they were close to  one another and were frequently visiting the house of Rohan,  they brought a book and a note book ( Articles 30 and 31) to his house on 20th July between 8.15 and 8.30 P.M. When they  were talking  with each  other in the verandah of the bungalow, having come down from the room of Rohan, which was on the first floor, they noticed that three persons came to the  bungalow in  a rickshaw  and approached them; one of them wished  Rohan saying Hello Rohan. Rohan introduced that person as Nitin Swargey (A-1) who in turn introduced A-2 and A-3 as  Ronny and  Santosh to  them. A- 1 expressed to rohan that they  wanted to stay overnight at his bungalow as their

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vehicle has  broken down  on their  way to panchgani. All of them stood  talking there  for about  eight minutes and then Rohan told  them to  sit inside  the house. A-1, A-2 and A-3 left their  muddy shoes  in the  Verandah and entered in the house. Thereafter,  PWs. 29  and 34  left and  on their way, about 50-100  feet away  from the bungalow, noticed that the parents of  Rohan were  coming in  their Maruti car from the opposite direction.      Smt. Asha Tarachand Kolge (PW- 35) is the maid servant, who was  attending to  the work  of  cleaning  utensils  and washing clothes  at the  residence of  Mr. Ohol. Her son and daughter also  used to  attend to  the work at the bungalow. She was  attending to the work at 5.00 P.M. or 5.30 p.m. for about one  or two  hours. On  20th July,  she  went  to  the residence of  Mr. Ohol  at 5.00 or 5.30 P.M. and pressed the door bell,  Mr. Rohan  opened the door. He was alone at that time. After  attending to  the work,  she left. When she was leaving, she  found that  Mr. Ohol  had come. He told her to come early  on the  next day  as she  would have  to go  the hospital to get his ailing mother-in-law discharged.      On the  night of  20th July, 1992, Popat Kolge (PW-21), watchman of  the society noticed Mrs. Ruhi Ohol in the house when he  and the  other watchman  were collecting  torch and other things  from the  rear side of the bungalow. Next day, i.e., on  21st July,  in the  morning when  he went  to  the bungalow to  put back  the torch,  he found  the  footwears, containing mud, lying over in the verandah and lights of the bungalow ‘on’.  He kept the torch as usual and went home. At about 8.00  in the  morning on  21st July, Balasaheb Hiraman Kalambkar (PW-22),  the milkman,  who went  to  deliver  the milk, noticed  that three  persons were  leaving the  Rooman bungalow in  the car.  He went and kept the milk bags in the rack and  the newspaper  given to  him by  the newspaper man (PW-23) at  the bungalow  and gave the usual call "Dooh" Mr. Mhatre (PW-23)  is the  newspaper  man.  He  was  delivering ‘Maharashtra Herald’  and ‘Sunday  Times’ newspaper  at  the residence of Mr. Mohan Ohol. He stated that on 21st July, he met PW-22  in the  morning and handed over him the newspaper for delivering  it at  Ohols’ bungalow as he was going there to supply  milk. Mr.  Vyankat  Pandit  (PW-24).  who  was  a resident of  that colony  noticed, after  he returned to his house leaving  the children  in the  school, that the Maruti car of  the Ohols’  family had stuck in the mud and that two persons, who  came out  of the  car, were pushing the car on 21st July  at about  8.00 A.M.  Thereafter, they boarded the car and  went away.  At about  the same  time,  Mr.  Vyankat Krishnan (PW-26),  owner of  Rohini  bungalow,  referred  to above, while  he was  taking his  wife to  Junior College in Loyalla, Pashan  Road, Pune,  found Maruti  car of Mr. Mohan Ohol outside  the gate  but later it followed his car. After coming on the main Baner Road, he stopped his car near Hotel Green Park  and gave signal to stop mr. Ohol’s car. When the car stopped,  he peeped  through the  door glass and saw two persons on  the front seats and one person on the year seat. He gave  the descriptions  of the  driver and person sitting next to him, but not of the person sitting on the hind seat, which coincide  with the  identity of  A-1 and  A-2. Finding that Mr. Mohal Ohol was not in the car, he told them to go.      The Maruti  car was  later found  abandoned by A-1, A-2 and A-3 at Shirur. Thereafter, they started dealing with the properties of  Ohols. At  about 11.15 A.M., on the same day, from Shirur  they boarded the bus; this fact is spoken to by the bus  driver, Kundalik  Bhanudas Garad  (PW-55). At about 12.30 P.M..  A-1 went  to the Bank of Maharashtra, Hadapsar, Branch, Pune,  presented a  cheque  (Exhibit  146)  for  Rs.

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12,000/- purportedly  signed by  Mr. Mohan Ohol and drawn in favour of  one Mr.  M.K. Chavan,  to the  Bank  clerk,  Nand Kishore Tukaram  Shinde (PW-31) who asked A-1 to sign at the back of  the cheque  and he  signed as  M.K. Chavan. P.W. 31 gave Token  No. 109  (Article 142) and endorsed ‘109’ on the cheque. The  cheque was  given  to  Mr.  Damodar  Apte,  the Assistant Branch Manager (PW-30), for verification. He found that the signature of mr. Mohan Ohol was not tallying and so A-1 was  asked  by  him  either  to  get  mr.  Mohan  Ohal’s instruction or another cheque from him. He also asked A-1 to return  the   token  and  take  back  the  cheque,  but  A-1 disappeared from the Bank, Consequently, the uncashed cheque remained with  the Bank  and the token remained with A-1. On the same  day, A-1  went to Ravindra Babhutmal Oswal (PW-19) to pledge  ear-tops (Article 83) but as he did not help, a-1 got the  services of  Prakash Kamble  (PW-28), Ratan  Kamble (PW-37) and  Vishnu Ramchandra Randive  (PW-36) for pledging the ear-tops.      Not finding  Rohan in  the college  on 21st July, PW-29 tried to  contact him  on phone after returning from college but got no response . On 21st July, 1992, PW-35 went for her daily chore  at about  4.00 P.M.,  rang the  bell but nobody opened the  door. She  went to the back side of the bungalow and knocked the door. She did no get any response. She found the milk  sachets in  the verandah.  She  thought  that  the condition of  the mother  of Mrs.  Ohol might be serious and the family  might have  gone to  the hospital.  So, she took the milk  sachets and  went home.  At about sunset, she sent her daughter  and son  with the milk bags to the bungalow to deliver the  same, but  they returned  with  the  milk  bags stating that  nobody was attending to the door bell and also informed that the maruti car was not in the porch. PW-26 did not see  Mr. Mohan Ohol and his maruti car in the evening of 21st July, generally, he used to see Mr. Ohol in the evening between 7.00  and 7.30  P.M. On  22nd July,  in the morning, when PW-22  went to  Rooman bungalow,  he saw  the newspaper attached to  the gate. He entered the gate and went near the rack and  found the newspaper of the earlier day still there but he  did not  find the milk bags put by him on 21st July. He kept  the newspaper  of 22nd July, which he had picked up from the  gate and shouted "Doodh, Doodh." As the maruti car was not  there, he  thought the  family  had  gone  out.  He pressed the  door bell but did not get any response. he then left the  place with milk bags. On the way, he enquired from the wife of watchman of bungalow of Sardarji and learnt that the relative  of Ohols’  family was sick and that they might have gone  there and that somebody might have taken away the milk bags. On 22nd July, PW-23 kept newspaper at the gate in the morning as usual. On the evening of 22nd July, after PW- 26 returned  from his  work, he  did no see Mr. Ohol between 7.00 and 7.30 P.M. as usual and he also noticed that the car of Mr.  Ohol was  not in  the bungalow.  In the evening, the nephew and  niece of  Mr. Ohol, Viren and Rodha, came to the bungalow to  enquire as  their parents  were  informed  that neither Mrs.  Ohol nor  any member of her family had gone to the Ruby Hospital to see her ailing mother and they were not getting any  response on phone. They noticed that the lights on the ground floor of Rooman bungalow were burning. On 22nd July, when  PW-21 went  to the  bungalow at  9.00  P.m.,  he pushed the  door bell  button but the bell did not ring. The entrance door  of the  bungalow was  closed, the lights were ‘on’ on  the ground  and the  first floor but the maruti car was not  there, Then  he went to the bungalow of PW-26. When he returned, he found PW-3, two others and PW-26 there, They asked PW-21  to go  on the terrace and find out if there was

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anything abnormal. He reported that he did not find anything there but  thereafter he pointed out that ants were going in and coming out of the bath room on the ground floor. He then removed glass  and saw  that human  bodies were lying in the tub in  the bath  room. All  the doors  were closed. By that time, Vijay  Ohol (PW-3) had also come. He and pw-21 went to the police  in a  jeep.  Sahebrao  Pangare,  Assistant  Sub- Inspector of  Police (PW-63)  and PW-82  accompanied them to the scene  of offence.  They broke  open  the  door  of  the kitchen. They  found  that  the  house  was  ransacked.  The disfigured dead bodies of Mr. Mohan Ohol, Mrs. Ruhi Ohol and their son,  Rohan Ohol  were lying  in the  tub in  the bath room.  The  dead  bodies  were  removed  from  the  tub  and panchnamas were  prepared. Mr.  Salim Mohammed Sheikh (PW-1) is the  panch witness of inquest panchnamas conducted by PW- 78. Exhibit 11 is the inquest panchnamas of the dead body of Rohan Ohol,  which was  dignified  by  PW-26.  In  the  said panchnama, the  condition of the body was described. Exhibit 12 is  the inquest  panchnama of  the dead body of Mrs. Ruhi Ohol, which  was identified  by PW-3.  The condition  of the dead body  was described  therein. Exhibit 12 is the inquest panchnama in  respect of the dead body of Mr. Mohan Ohol. It contains the particulars of the dead body of Mr. Mohan Ohol. The dead  bodies were  sent to  the hospital for post-mortem examination. Dr. Lakshman Govindan Ferwani (PW-73) conducted autopsy on  the dead  bodies o  the deceased, Rohan Ohol and Mohan Ohol  and issued  post-mortem certificate, Exh.268 and Exh. 270  respectively, and  Dr.  Lakshmikant  Bade  (PW-74) conducted autopsy  on the  dead body  of Mrs.  Ruhi Ohol and issued the  post-mortem certificate (Exh. 278). PW-73 opined that the  cause of  death of  Mr Rohan Ohol and of mr. Mohan Ohol was  due to  suffocation of  the neck.  Similar was the opinion of Pw-74 as to the cause of death of Mrs. Ruhi Ohol. Among the injuries found on the dead body of Mrs. Ruhi Ohol, there were  injuries on  her private parts which were opined to be  due to  violent sexual attack by more than one person on her.  PW-82 conducted Panchnama (Exh. 28) of the scene of occurrence and  the  following  among  other  articles  were found: spool  of celo plast, Newspaper, . The Sakal. of 18th July, 1992, but it did not have the first and the last page; Books of  PW-29,  Gold  Flake  cigarette  stubs;  bed  sheet containing stains  of blood  and semen  in the bath room, it was also  noted that the maruti car (MAF-5436) of Mohan Ohol was not  at the  bungalow. The investigating officer (PW-83) was entrusted with this case. He took over the case from PW- 82 and  continued investigation.  He sent  the message about the theft  of the  car and  kept PSI Tukaram Dwarkanath Gaud (PW-48) on  watch duty.  PW-78 was  entrusted  with  further investigation.      PW-22, PW-23  and PW-35  noticed in the morning of 23rd July. 1992  that the  police had taken charge of the ‘Rooman bungalow’ and sealed it.      On 23rd  July, 1992  A-1 gave Seiko digital wrist watch (Article 114) to Ramesh Shamlal Thakur (PW-58) or repair. A- 2 kept  VCR (Article  64) with Bharat Dhondiram Salekar (PW- 59). With  the help  of PW-59  , A-2 went to Mehendra Choksi (PW-60), a  jeweller, and sold two gold bangles (Article 66) for Rs.  4760/-. A-2 had kept scientific calculator (Article 138), Agfa  camera (Article  136), Flash gun  (Article 137), Flash gun  tube (Article  139) and Plastic Bag (Article 140) with  Ramesh   Thakur  (PW-58).   He  also  sold  some  gold ornaments, chain, ring, ear-tops etc. (Articles 67 to 72) to PW-60 with the help of PW-59. A-3 pledged ladies wrist watch (Article 95)  with Bhagwan Dhondu Bane (PW-56) for Rs. 250/- on July  24, 1992.  He gave  some trousers to Bharat Solanki

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(PW-61) for  alteration for  the  purpose  of  reducing  the length and on the next day, he gave Table clock (Article 96) of Phillips to Manoj Shantaram  Mundhe (PW-57).      On 23rd July, Ms. Reina Ohol, the only surviving member of the  Ohols’ family, returned to Pune from Bombay. On 24th July the funeral and the burial of the deceased persons, Mr. Mohan Ohol,  Mrs. Ruhi  Ohol and Mr. Rohan Ohol, took place. On the  same day,  the maruti  car of  Mr.  Mohan  Ohol  was escorted from  Shirur  petrol  Pump.  PSI  Bhandari  (PW-78) brought the  car at  Chaturshringi Police station and on the morning of  25th July,  he handed  over all the articles and the concerned papers which were found in the said car.      On the  night of  July 27th, Investigating Officer (PW- 83) and  his party  went to  Bombay in three vehicles. After getting the clues of the accused persons, they first went to Borivili. A-3  was not there in the house but his brother ’s wife, Smt.  Archana Desai,  was there. In the search made by them, certain  articles were found. Exhibit 30 is the search panchnama.   PW-6 is  one of  the panch witnesses. Among the articles found  were: silver tea set, silver tray, two pairs of socks.  two sets  of keys,  the keys  included maruti car key, the  key of  Kinetic Honda and the key of the main door of Rooman  bungalow, one stainless steel knife, one hot-shot camera and  one two-in-one  of National company. In the said tape  recorder,  one  cassette  was  there  with  a  sticker containing the  name, address  and phone number of Mr. Rohan Ohol. The  seizure memo of these articles is Exhibit 30. The panchas and  PW-83 signed the said seizure memo. A-1 and A-2 were arrested on 28th July, 1992, On personal search of A-1, one  cigarette   packet  of   Gold  Flake   containing  four cigarettes, one  key and  Rs.19/- were  found with  him. The arrest panchnama  is Exhibit  31. Those  articles  were  not seized. Thereafter,  Exh. 32,  arrest panchnama  of A-2  was drawn. No incriminating articles were found from his person. A-2 made  his voluntary  statement (Exhibit  36) pursuant to which a  black brief  case of  VIP company with the stickers "M" "O"  was recovered.  On opening  the  said  brief  case, visiting  card   of  Mr.  Mohan  Ohol,  Pneumatic  Kirloskar Company, was  found. The  other articles  recovered were one small tape  recorder, one  transistor, one  Eliminator,  one wrist watch  of Allwyn  Company, one  country made revolver, one pair  of shoes wrapped in the first and the last page of the newspaper  of Pune ‘The Sakal’ dated 18th July, 1992 and one button  knife having hrass handle. In the said revolver, there were  four cartridges.  The articles  recovered  under panchnama (Ext 37) are marked as Articles 55 to 63. Pursuant to the  further statement  (Exhibit 38)  made by  A-2 VCR of National Panasonic  Company was  recovered from the house of one Bharat Salekar (PW-59) and ornaments (Articles 64 to 73) were  recovered  from  Choksi  Jewellery  shop,  V.P.  Road, Borivili. The  ornaments that  were sold  by A-2 on 24th and 25th July  are three  golden rings, two bangles having black beads, one  neckless (disco chain), one pair of ear tops and one small  ear chain.  The gold  ornaments and  the  receipt books were seized under recovery Panchnama Exhibit 39.      On 30th  July. 1992,  PW-26, the  owner and resident of Rohini bungalow  and the Secretary of the society identified A-1 and A-2 in the TIP as well as in the court at the trial. PWs.30 and  31 ,  the Assistant  Branch Manager and the Bank Clerk respectively  of he  Maharashtra Bank, Hadapsar Branch identified A-1  in TIP  on 30th July, 1992 as well as at the trial in  court. On 5th August , 1992, A-3 was identified in TIP by  PWs.46 and 47, the partner and room boy respectively of Natraj Hotel and by PW-55, the driver of the bus. On 26th August, 1992,  A-1 and  a-2 were identified in TIP by PW-46,

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PW-47 and PW-69. All of them identified the three appellants at their  trial also  in the  court. Apart  from  the  above witnesses, A-1 to A-3 were identified by PW-29, PW-34, PW-42 and PW-45,  though they  did not  participate in TIP. PW-11, PW-19, PW-28,  PW-36 and PW-37, who heloed A-1 in court . So also PW-58  identified A-1  in court.  A-2 was identified in court by PW-59 whom he is said to have given VCR. So also by PW-58  whom   A-2  is   said  to  have  given  Agfa  camera, calculator, flash gun, flash gun tube and yellow plastic bag for keeping  them with  him. PW-60,  a jeweller at Borivili, who purchased  a gold  chain, three gold rings, one chain of ear tops,  a pair  of ear  tops  with  the  help  of  PW-59, identified A-2  in court.  Apart from  the witnesses already referred to above, A-3 was also identified in court by PW-56 who was handed over ladies wrist watch (Citizen) by A-3. PW- 61, a tailor, who was given two jean pants for alteration by A-3 identified  him in  court. A-3  was also  identified  in court by  PW-57 who  was given table clock of phillip Quartz company for keeping it with him. The aforementioned articles were recovered  at the  instance of  the appellants within a week of  the  date  of  commission  of  the  offence.  Those articles were  identified in  the test identification of the articles by PW-3 and PW-40, the only remaining member of the Ohol family.      The cigarette stubs of Gold Flake found at the scene of occurrence and noted in the panchnama (Exhibit 28) were sent for chemical  analysis. Bed  sheet found  in the  master bed room of  Rooman bungalow  containing the stains of blood and semen was  also sent  to the  chemical analyser  along  with other blood  stained articles.  The blood  and hairs  of the appellants were  sent for  chemical analysis. The reports of the chemical  analyst disclose  that the  blood group of the deceased mr.  mohan ohol,  Mrs. Ruhi Ohol and Mr. Rohan Ohol was ‘B’  group (Exhibits  341, 342 and 343). The blood group of A-1  is ‘A’,  of A-2  is ‘AB’ and of A-3 is ‘O’ (Exhibits 337, 338  and 339).  Exhibit 340  contains  the report which shows that  the semen detected on the pieces of bed sheet is human -  of blood  groups ‘A’, ‘AB’ as well as ‘O’ in serial Nos. 21  and 22  and  that  the  stains  of  saliva  on  the cigarette stubs  are of  group ‘A’. Thus, it is demonstrated that saliva  on the cigarette stubs was that of A-1 and that semen stains  detected on  the bed  sheets were that of A-1, A-2 and  A-3 having  regard to their respective blood groups ‘A’, ‘AB’ and ‘O’. The Gold Flake cigarette stubs are sought to be  connected with  the Gold  Flake packet  of cigarettes found on  the search of the person of A-1 at the time of his arrest on 28th July, 1992. So also the newspaper ‘The Sakal’ of July  18,  1992  noted  in  panchnama  of  the  scene  of occurrence (Exhibit  28) not  containing the  first and  the last page  is sought  to be connected with the recovery made at the  instance of  A-2 where  pair of  shoes of  Rohan was found wrapped in the missing pages (first and the last pages of ‘The Sakal’). On 6th August, 1992. A-1 made the statement (Exhibit 69) and thereafter led the investigating officer to rooman bungalow  here he  pointed out a commode in which the articles were  thrown. After  search, adhesive  tape,  nylon strip and nylon rope were found in the drainage pipe leading from the  commode to  the septic  tank of the said bungalow. The adhesive  tape, some  hairs and small ear ring of yellow colour was  found stuck  with the  adhesive tape.  The  ring recovered is the counterpart of the ear ring (one) mentioned in Exh.28  and was  identified by  PW-40 as belonging to her mother. The  hairs were  similar to  that of  late Mrs. Ruhi Ohol. The  tape was  containing the superficial layer of the skin which  explains the  injury Nos. 28 and 29 in the post-

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mortem report  (Exh. 278).  The writings  found on  "A Form. (Article 98)  of the  Natraj Hotel  and on the chit (Article 89), written at the time of hiring the car through PW-69 and on the  back of cheque of July 20, 1992 [Exh. 146] which was presented by  A-1 to  the Maharashtra  Bank, Hadapsar Branch were sent to the hand writing expert, Shri J. Landge (PW-80) who opined  that the writings on those articles were similar to that  of admitted  writing of  A-1 . After the maruti car bearing registration  No. MMP-5346  of the Ohols’ family was discovered in  Shirur near  petrol pump,  it was  noted that there were  finger prints  thereon. Finger  print expert was called. The  finger prints found on the rear view mirror and the print  of the  palm found  on the frame of the rear left hand side  of maruti  car, were taken. The finger prints and the palm  prints of  the  appellants  were  also  taken  for purposes of  comparison. Finger print expert, Mr. Indarchand Sharma (PW-52)  after enlarging  and comparing the prints on the car  with the  admitted prints  of the  appellants found that the  palm prints on the frame of the door of maruti car were that of A-2. They are said to contain nine similarities between the print of the car and the admitted print of A-2.      Admittedly,  there   are  no   eye  witnesses   of  the occurrence. The  entire evidence is circumstantial evidence. The  prosecution  culled  out  the  circumstances  from  the evidence on  record, proved  them and  relied upon  them  to establish its  case. The  trial court  enumerated  them  and after due  consideration held  that they  formed a  complete chain so  as to  bring home the guilt of the accused without giving room  to any  other hypothesis  consistent  with  the innocence of the accused. Accordingly, the trial court found the  appellants   guilty  and  convicted  then  of  offences punishable  under  Section  302  read  Section  34  IPC  and sentenced them  to death subject to confirmation by the High Court; Section  449 read  with section 34 IPC sentenced them to suffer  rigorous imprisonment for five years and to pay a fine of  Rupees two hundred and in default, suffer one month rigorous imprisonment; Section 347 read with Section 34 IPC, sentenced them  to rigorous  imprisonment of one year and to pay a  fine of rupees one hundred and in default, suffer one month rigorous  imprisonment; Section  394 read with Section 34 IPC,  sentenced them  to rigorous  imprisonment for seven years and  to pay  a fine  of  Rupees  two  hundred  and  in default, suffer one month rigorous imprisonment; Section 376 (2)  (g)   IPC,  sentenced   them  to   ten  years  rigorous imprisonment and  to pay  a fine of Rupees two hundred and i default, one  month rigorous  imprisonment; Section  467/471 read  with  Section  34  IPC,  sentenced  them  to  rigorous imprisonment for five years and to pay a fine of Rupees five hundred and  in default,  one month’s rigorous imprisonment; Section 201  read with  Section 34  IPC, sentenced  them  to rigorous imprisonment  for three  years and to pay a fine of Rupees  two   hundred,  in  default,  one  month’s  rigorous imprisonment.  Further,  A-2  and  A-3  were  convicted  for offences under  Sections 109,  467 and  471 but  no separate sentence was passed on that count. It was, however, directed that substantive sentences shall run concurrently.      As already  noted  above,  the  High  Court  heard  the reference with  regard to  confirmation of  the sentence  of death awarded to the appellants along with the appeals filed by  them   and  after   considering  the   entire   evidence exhaustively, confirmed  the judgment  of  the  trial  court except in respect of charge under Section 201 IPC.      In these appeals, various contentions were urged by Sri U.R.  Lalit,   the  learned  senior  counsel  appearing  for Appellants Nos.  1 and  2 and  Smt. Shilpa  Malvankar ,  for

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appellant No.  3. On  the submissions of learned counsel for the appellants, thee points worth consideration arise: (1) what, if any, would be the effect of:      (a) identification of the           appellants  by  the  witnesses           for the  first time  in  court           [without participating in test           identification parade]; and      (b) the  alleged non-compliance  of           sub-section (4) of Section 100           and sub-section (3) and (4) of           Section 166 Cr.P.C.; on the judgment under appeal? (2)  whether  the  charge  under  Section  376  against  the appellants has been made out; and (3) whether  the facts and circumstances of the case justify awarding of death sentence to the appellants. Point No.  1 :  This consists  of two parts; part- (a) deals with identification  of the  appellants by various witnesses and part  (b) is  about not calling local panch witnesses at the time  of conducting   recovery  panchnama and not taking the help of local police.      We shall  take up  Part (a)  first. After their arrest, the appellants  were identified  by various  witnesses; some identified  then   in   test   identification   parade   and subsequently in court but some identified them for the first time in  Court A-1 and A-2 were arrested on 28th July, 1992. The first  test identification  parade [TIP]  in respect  of them was  conducted by special Judge, Sri Khomane (PW-76) in the Yerawada Central Prison, Pune on July 30, 1992 where PW- 26 identified A-1 and A-2. In that TIP, PW-30 and PW-31 also identified A-1. A-3 was arrested on 3rd August, 1992. He was produced  before   the  court   on  4th   August,  1992  and magisterial custody  was obtained for identification parade. The second  TIP was  conducted in  the presence  of PW-76 at Yerawada Central  Prison on  5th August, 1992 wherein PW-46, PW-47, PW-55 and PW-69 identified A-3. On 26th August, 1992, the third  identification parade was held in the presence of PW-76 at  Yerawada Central Prison, Pune in which A-1 and A-2 were identified  by PW-46,  PW-47 and PW-69. Those witnesses identified the appellants in the court also. Further, PW-11, PW-19, PW-28,  PW-36, PW-37  and  PW-58  identified  A-1  in court. A-2  was identified by PW-56, PW-57, PW-59, PW-60 and PW-61 in  court. A-3 was identified in court by PW-56, PW-57 and PW-61.  A-1 to A-3 were also identified by PW-29, Pw-34, PW-42 and  PW-45 in court. It may be noted here that many of these witnesses  did not  participate in  the TIP. So far as identification by  these witnesses  at  the  time  of  trial without their  participation in the TIP is concerned, it was argued  that   their  identification   was  worthless   and, therefore, that part of the evidence should be excluded from consideration  and  thus  a  vital  link  in  the  chain  of circumstances would be missing, so their conviction based on such identification  had to  be set  aside,  Sri  Shah,  the learned  senior   counsel  for  the  State  of  Maharashtra, contended that  the test  identification of  an accused by a witness  was   for  the   purposes  of   ensuring  that  the prosecution was  on the  right track  and to ensure that the memory of  the witness  did not  fail on account of lapse of time from  his first  seeing the  accused and  this criteria would not  apply to  a witness  who has  known  the  accused earlier, so  their identification  for the first time at the time  of   trial  would   not  demolish   the  case  of  the prosecution. Mr.  Lalit’s attack  is directed mainly against identification of  the appellants by PW-29 and PW-34 for the

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first time  in  court.  These  two  witnesses  establish  an important link  in the chain of circumstance, that is, entry of the  appellants in  ‘Rooman bungalow’ with muddy shoes on the night of 20th July, 1992 at about 8.30 P.M.      Section 9  of the  Evidence Act deals with relevancy of facts necessary  to explain  or introduce relevant facts. It says, inter  alia, facts which establish the identity of any thing or  person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. So the evidence of identification  is a  relevant piece  of  evidence  under Section 9 of the Evidence Act where the evidence consists of identification of  the accused  person  at  his  trial.  The statement of  the  witness  made  in  the  court,  afortiori identification by  him of an accused is substantive evidence but from  its  very  nature  it  is  inherently  of  a  weak character. The  evidence of identification in the TIF is not a substantive  evidence but  is only corroborative evidence. It falls   in  the realm  of investigation.  The substantive evidence is  the statement of the witness made in the court. The purpose  of test  identification parade  is to  test the observation, grasp, memory, capacity to recapitulate what he has  seen   earlier,  strength  or  trustworthiness  of  the evidence  of   the  identification  of  an  accused  and  to ascertain if  it  can  be  used  as  reliable  corroborative evidence of the witness identifying the accused at his trial in court.  If a  witness identifies the accused in court for the first  time after  a long  time, the  probative value of such uncorroborated  evidence becomes  minimal, so  much  so that it  becomes unsafe  to rely  on such piece of evidence. But if  a witness  has known  an  accused  earlier  in  such circumstances which  lend assurance to identification by him in court  and if  there  is  no  inherent  improbability  or inconsistency, there is no reason why his statement in court about the  identification of  accused should  not be  relied upon as any other acceptable but uncorroborated testimony.      In Budhsen  & Anr.  v.  State  of  Uttar  Pradesh,  the witness saw the assailants when they were running away after the alleged  murder. Observing  that the  witness had only a mere  fleeting  glimpse  and  for  identification  on  would certainly expect  more firm  and  positive  reference,  this court did  not consider  it safe to rely on the TIP evidence as corroborative  evidence of identification in court by the witness. About  the identification  of the accused in court, it was  indicated that  the same  did not  provide safe  and trustworthy evidence  to sustain conviction. This court also explained  the   nature  of   identification   parade,   its essentials and value.      In Rameshwar Singh v. State of Jammu & Kashmir a three- Judge Bench of this Court while dealing with the question of the identification parade observed as follows:      "it  may  be  remembered  that  the      substantive evidence  of a  witness      is his  evidence in  court but when      the   accused    person   is    not      previously  known  to  the  witness      concerned  then  identification  of      the accused  by  the  witness  soon      after the  former’s  arrest  is  of      vital   importance    because    it      furnishes  to   the   investigating      agency  an   assurance   that   the      investigation  is   proceeding   on      right   lines    in   addition   to      furnishing  corroboration   of  the      evidence to be given by the witness

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    later in  court at  the trial...The      identification    during     police      investigation, it  may be recalled,      is not  substantive evidence in law      and     it  can  only  be  use  for      corroborating   or    contradicting      evidence of  the witness  concerned      as    given     in    court.    The      identification         proceedings,      therefore,  must  be  so  conducted      that evidence  with regard  to them      when given  at the  trial,  enables      the   court    safely    to    form      appropriate judicial  opinion about      its  evidentiary   value  for   the      purpose   of    corroborating    of      contradicting  the   statement   in      court of the identifying witness".      Sri Lalit,  learned counsel  for the appellants, relied upon the  observations of  this Court  in Kannan and Ors. v. State  of   Kerala  and   argued  that   the   evidence   of identification of  PWs.29 and  34 is  valueless as they were not  called   to  identify   the  appellants   in  the  test identification parade.  In that case, the charge against the accused was  that they  entered into a conspiracy as members of naxalite  party to  raid the  police station Kuttiadi. In the course  of the raid, the police station was attacked and articles were  burnt. No  member of  the police  station  or staff was  able to  identify the  raiders.  Apart  from  the evidence of  conspiracy, there  was evidence  of  PW-25  who identified the  appellants therein  running  away  near  the scene of  occurrence after the raid took place in the police station. Firstly,  his presence  in the  travelling bungalow was  doubted  and  secondly  it  was  pointed  out  that  he identified the appellants therein a persons who were running away near  the place  of occurrence and that the witness had admitted that  he knew  those two  persons by  face, yet  he named them  while identifying them in court. it was observed that there  was huge  crowd after  the  police  station  was attacked and  if those  two appellants wee seen running away that by  itself should  not show that they had taken part in the raid.  It was on those facts, it was observed that where a witness  identified an  accused in the court for the first time, who  was not known to him, his evidence was absolutely valueless  unless   there   had   been   a   previous   test identification parade  to test  his power of observation and that the  idea of  holding test identification parade was to test the  veracity of  the witness  on the   question of his capability to  identify an  unknown person  whom the witness might have seen only once and that if no test identification parade was  held, it  would be  wholly unsafe to rely on his bare testimony regarding the identification of a accused for the first time in court. The rational behind the observation of this  court is  that as the evidence of identification of an accused in court is inherently of weak character, as such it requires  corroboration by  way  of  test  identification parade, so  where the  attending circumstances are such that the possibility  of identifying  the accused  by the witness becomes bleak,  as in  that case,  the witness  only saw the appellants  running   away  from   the  crowd,   then   such uncorroborated evidence  cannot be  relied upon  to  base  a conviction. That  judgment, in our view, did not lay down as a principle  of law  that where the accused was known to the witness from  an earlier  period or  where the witness had a chance to  interact with the accused or that in a case where

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the witness  had an  opportunity to  observe the distinctive features of  the accused,  his evidence of identification in the court  cannot be  given any  credence merely because the witness was  not asked  to identify  the accused in the test identification parade.      In Mohd.  Abdul Hafeez  vs. State of Andhra Pradesh the accused, along  with others, was convicted under Section 392 read with  Section 34  IPC. The victim did not give the name or  description  of  the  appellant  therein  in  the  first information report.  This  court  observed  that  the  total absence of  any such description which would have provided a yardstick to evaluate the identification of the appellant at a  later   date  by   a  victim   would  render   his  later identification weak. No test identification was conducted in that case  so, it  was held that the identification in court would hardly  furnish any  evidence against  the  appellant. Indeed, in  that case,  this court observed that the witness did not  give the  description of  the accused  in the first information report  or before  the  identification  and  the evidence of  his identification was found to be weak, in the absence of corroboration, for being acted upon.      The identification of appellants by PW-29, PW-34, PW-42 and  PW-45  in  court  for  the  first  time  without  prior identification by them in the test identification parade has been  the   subject  matter   of  comment.  Insofar  as  the identification  of   appellants  by   PW-42  and  PW-45  are concerned, the trial court as well as the High Court had not accepted the  same but  the identification  of appellants by PW-29 and PW-34 had been accepted by both the trial court as well as  by the  High Court and in our view rightly. We have already laid  down above  that  the  identification  of  the accused by  a witness  if he  had an opportunity to interact with  him  or  to  notice  his  distinctive  features  lends assurance to  his testimony in court and that the absence of corroborative evidence  by way of test identification parade would not  be material. From the above mentioned aspect, the evidence of PW-42 and PW-45 has been rightly rejected by the trial court and the High Court as PW-42 is a rickshaw driver who had no opportunity to see closely the appellants whom he took to  Rooman bungalow  in  the  night.  So  also  PW-45’s identification of  A-1 in court without his participation in the TIP  has also  no probative value inasmuch as he went to the shop  of the  witness as  one of the customers and there was no  specific reason why he should watch A-1 closely. But the same is not the position with PW-29 and PW-34. They were talking to  the deceased  Rohan Ohol  at the  time when  the appellants came  to rooman  bungalow. Indeed  A-1 wished the deceased Rohan  who introduced  A-1 as  Nitin Anil  Swargey. Thereafter, A-1 introduced A-2 and A-3 to Rohan Ohol and PW- 29 and PW-34. They talked together for about 7-8 minutes and on Rohan  Ohol’s saying  them to  sit inside the house, they left their  soiled shoes  in the  verandah and  entered  the house. it can safely be presumed that had they not given the name and  description of the appellants at the earliest when their statement  was   recorded by  the police on 24th July, 1992, the  defence in  their searching  and  lengthy  cross- examination would  have  brought  on  record  omissions  and contradictions with  reference to  their  earlier  statement given to  the police.  As such evidence of identification of the appellants  at their  trial by  the said  witnesses even without the  corroboration of the identification parade, had been rightly  relied upon  by the  trial court as well as by the High  Court. We,  therefore, find  no illegality  in the judgment of  the courts below in accepting their evidence of identification.

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    A  faint   attempt  is   also  made   to   attack   the identification of  articles by  PW-3 and PW-40 on the ground that some  of the  articles are  common articles.  Both  the trial court  as well  as the High Court rightly accepted the identification  of  articles  by  those  witnesses.  As  the brother of  the deceased  Mohan Ohol and the daughter of the deceased, late  Mrs. and  Mr. Mohan Ohol, would certainly be in a  position to  identify the articles even if they are of common nature. This contention has been mentioned only to be rejected.      The next  aspect of this point remain to be considered. It pertains  to the  search  and  recovery  of  articles  in alleged violation  of the  provisions of  Section 100(4) and Section 166(3) and (4) Cr.P.C.      It will  be useful to read both sub-section (4) and (5) of Section 100 here:      "(4) Before  making a  search under      this Chapter,  the officer or other      person about  to make it shall call      upon two  or more  independent  and      respectable  inhabitants   of   the      locality in  which the  place to be      searched s  situate or of any other      locality if  no such  inhabitant of      the said  locality is  available or      is willing  to be  a witness to the      search, to  attend and  witness the      search and  may issue  an order  in      writing to  them or  any or them so      to do.      (5) The  search shall’  be made  in      their presence,  and a  list of all      things seized in the course of such      search and  of the  places in which      they are  respectively found  shall      be  prepared  by  such  officer  or      other person  and  signed  by  such      witnesses; but no person witnessing      a search  under this  section shall      be required  to attend the Court as      a  witness  of  the  search  unless      specially summoned by it".      These provisions  require the officer making the search under  Chapter   VII  to   call  two   or  more  respectable inhabitants of  the  locality  in  which  the  place  to  be searched is  situate and  if  no  such  inhabitant  of  that locality is  willing to  be a witness to the search, then to call persons  of any  other of  any other locality to attend and witness  the search  and for  that purpose,  the officer making the  search is empowered to issue an order in writing to them  or any  of them so to do. The search has to be made in their  presence and a list of things seized in the course of such  search and  of the  places in  which the things are found, is  required to  be prepared  by the said officer and signed by  such witnesses.  it further  provides that unless specially summoned by the court, such persons/witness in the search need not attend the court.      In State  of Marasrtra vs. P.K. Pathak the witnesses of the search  were the  custom officials  themselves. The High Court held  that as  no independent  witness of the locality was taken  by the  custom authorities to witness the search, no reliance  could be placed on the searches or the recovery of the  smuggled articles.  the High Court also rejected the evidence of  lone non-official witness on the ground that he was not  a witness of the locality and on the ground that he

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has assented to accompany the police and custom officials to witness the  various recoveries wherever he was taken by the police. Disapproving  the view  of the High Court of Bombay, this  Court  held  that  the  fact  that  they  were  custom officials would  be no ground to distrust their evidence; so also the  fact that  the non-official witness was approached by the  police and  the custom authorities to accompany them to witness   the search would not by itself show that he was an unreliable  or interested  witness.  Observing  that  his evidence was  corroborated by the police officer of the rank of Sub-Inspector, this Court held that his evidence ought to be believed.  It may  be noted  that  the  evidence  of  the witness of search was accepted notwithstanding the fact that he was  not of  the locality where the search took place and notwithstanding the  fact he was brought by the police along with them for the purposes of search. The evidence, however, can be  rejected if  it suffers from any serious infirmities or if  there is any inherent inconsistency in the testimony. It there  is intrinsic  merit in the evidence of the witness of search  the same  cannot be rejected solely on the ground that witness  is not  from the locality of search or that he was brought  by the  police with it. We are not persuaded to accept the  contention that  the evidence  of Nandu  Ambadas Jadhav (PW-6) cannot be accepted for the reasons that he was not a  witness of  the locality and that he was brought from Pune by  the investigating officer to witness the search. He was  one   of  the   drivers  of   the  cars  in  which  the investigating team came to Bombay from Pune. For the sake of convenience, he was taken as a witness for search. We do not find any  material in the cross-examination to discredit his testimony. The only ground of attack on the evidence of PW-6 that he was not from the locality as contemplated under sub- section (40 of Section 100 Cr.P.C. fails because in our view a witness  of search  other than  the one  from the locality even if  he has  been brought  by the investigating agencies along with  them cannot  be disbelieved  only on that ground and we  do no find anything in his evidence to discredit his testimony.      Section 166  is an enabling provision, which enables an officer in  charge of a police station to require another to issue  search   warrant.  Sub-section  (3)  of  Section  166 provides that  whenever there is a reason to believe that by requiring an  officer in  charge of  another police  station section to  cause a  search to be made under sub-section (1) of that  section might occasion delay and result in evidence of  the   commission  of   an  offence  being  concealed  or destroyed, it  shall be lawful for the investigating officer of team making investigation under  Chapter XII to search or cause to  search any  place in  the limits of another police section in  n accordance  with the provisions of Section 165 Cr.P.C. as  if such  place were within the limits of his own police  station.   Sub-section  (4)   requires  that   after conducting the search as contemplated under sub-section (3), the officer  shall forthwith sent a notice to the officer in charge of the police station within the limits of such place and a  copy of  the list, if any, prepared under Section 100 to  that  police  station  and  to  the  nearest  Magistrate empowered to  take cognizance  of the offence along with the copies of the record referred to in sub-sections (1) and (3) of Section  165. When  the investigating officer (PW-83) was questioned on  this aspect,  he replied  that he  wrote  two letters to  the police  station in  which the  articles were seized. However,  what is  pointed out before us is that the copies of  the letters  sent to  the other police station in whose jurisdiction  the search  and seizures  were made, had

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not been  produced. We find no substance in this submission. The witness  stated that  he has  sent  the  letter  to  the concerned police  station, therefore,  the presumption under Illustration (e)  of Section  114 of  the Evidence Act would arise and  the official  acts would  be deemed  to have been performed regularly.  There is  thus no non-compliance o the aforementioned provisions of the Code of Criminal Procedure.      Apropos the recovery of articles belonging to the Ohols family from  the possession of the appellants soon after the robbery and the murder of the deceased (Mr. Mohan Ohol, Mrs. Ruhi Ohol  and Mr. Rohan Ohol) which possession has remained unexplained by  the appellants,  so  the  presumption  under Illustration (a)  of Section 114 of the Evidence Act will be attracted. It  needs no  discussion  to  conclude  that  the murder and the robbery of the articles were found to be part of the  same transaction. The irresistible conclusion would, therefore, be  that the  appellants  and  no  one  else  had committed three murders and the robbery.      In Biju  vs. State  of  Madhya  Pradesh  the  appellant gained access to the house of the deceased who was childless on the  pretext that  by sorcery,  he would  remove the evil effect which  would enable  him to  beget children.  On 20th January, 1975,  he took the deceased to a nearby nala on the pretext of performing some religious rites, killed him there and threw  his dead  body in  the nala.  In the same way, he killed another lady of the family, named Smt. Fulkunwar, one of the  wives of  the deceased. He then went to the house of the deceased  and killed  his mother  Smt. Bhagwanti and his nephew Mr.  Rambakas while  they were  sleeping   there.  he ransacked the  house, broke open the boxes, took away number of articles  including transistor,  watch,  torch,  clothes, ornaments etc.  On  the  next  day,  the  neighbour  of  the deceased and  his nephew  finding unusual  calm in the house peeped inside  the house  and found  the dead bodies of Smt. Bhagwanti and  Mr.  Rambakas.  On  28th  January,  1975  the appellant was  arrested  and  at  his  instance  the  stolen articles  were   recovered  from  him.  They  were  put  for identification and  were identified by the surviving wife of the deceased.  On those  facts, the  learned Sessions  Judge convicted the  appellant for  offence under Sections 302 and 394  IPC.  The  High  Court  confirmed  the  conviction  and sentence, on appeal. On further appeal to the Supreme Court, by special  leave,  it  was  held  that  the  offences  were committed on the night intervening January 20 and 21 and the stolen  property   was  recovered  from  the  house  of  the appellant or  at his  instance  on  January  28,  1975.  The accused did  not  explain  about  the  possession  of  those articles.  It  is  observed  that  the  question  whether  a presumption  should  be  drawn  under  Illustration  (a)  of Section 114 of the Evidence Act is a matter which depends on the evidence  and circumstances  of each  case and  that the nature of  the stolen articles, manner of their acquisition, nature of  evidence about  its identity, the manner it which they were  dealt  with  by  the  appellant,  the  place  and circumstances of  their recovery,  the length of intervening period, the ability or otherwise of the appellant to explain his possession  are factors   which  should  be  taken  into consideration in  arriving at a decision and held that there was ample justification