JUDGMENT

RAY, J. :- This is an appeal by special leave from the judgment dated 16 July, 1970 of the High Court at Patna accepting the reference under Section 374 of the Criminal Procedure Code and confirming the sentence of death.

2. The appellant was convicted under Section 302 of the Indian Penal Code for having committed the murder of Anango Nayak, a boy aged about 10 years and his younger brother Gourango Nayak, aged about 7 years.

3. Anango and Gourango were sons of Mossomat Kamila Nayak, widow of Shashi Nayak. The prosecution case was this. Both the brothers disappeared from the house of Kamila on 25 July, 1967 which was a Thursday, Kamila was a day labourer. When she returned in the evening she did not find her sons in the house. She searched for them in vain. On the following day (Friday) at midnight she was informed by some villagers named Kartik Patar, Shashidhar Nayak and Chandra that the appellant had stated before them that he had killed the two children. Kamila thereafter went to the house of the appellant in the company of those villagers and enquired from him whether it was a fact that he had killed the two children. The appellant admitted that it was a fact that he had killed the two children. The appellant took out a Kulhari from his house and said that that was the weapon with which he had killed the children. The appellant took Kamila and the other villagers to the neighbouring jungle and showed them the dead bodies of the children. Kamila identified the dead bodies as those of her two sons. On Saturday morning a cowherd boy named Rakhal came to the house of Kamila and told her that at mid-day on Thursday while he was grazing the buffaloes in Bana Dungri Jungle he saw the appellant taking the two children to the jungle with a tangi in his hand. Thereafter, Kamila proceeded to Musabani Police Outpost along with Ishwar Chandra Nayak and the appellant and two other person. Kamila gave the first information report at 5 p.m. on Saturday, 27 July, 1967. The first information report was recorded by the Assistant sub-Inspector Jhalagdeo Singh, the appellant was then put in custody.

4. The Additional Sessions Judge said that the relevant circumstances available for the purpose of decision were that a day before the occurrence the appellant quarrelled with Kamila and threatened to kill her boys. On Thursday at about noon the cowherd boy Rakhal saw the appellant going go Bana Dungri forest taking the two boys Anango and Gourango and carrying a tangi. The dead bodies of these two boys were found on Saturday in the Bana Dungri forest. According to the post-mortem report and the testimony of the Medical Officer the two boys were killed by a sharp-cutting weapon like tangi. The Additional Sessions Judge held that the circumstances led to the only conclusion that the appellant must have committed the murder of the two boys and the circumstances that on. Thursday at about non the appellant was seen taking the two boys to the Bana Dungri forest pointed to that conclusion.

5. The High Court said that the Additional Sessions Judge placed no reliance upon the evidence of extra judicial confession. The extra judicial confession is contained in the testimony of three prosecution witnesses. They are Kamila, the mother : Kartik Patar a cultivator and Shashidhar Nayak a cultivator.

6. Kamila s evidence was that after the information from the villagers on Friday mid-night when she went with Chandra. Kartik Patar. Kundru and Shashidhar to the house of the appellant the latter took out a Kulhari a sharp weapon from his house in their presence and showed it and said that he had killed the children with that kulhari. Kamila further said that on Wednesday, a day before the occurrence the appellant quarrelled with her for land and told her that he would kill her and her children.

7. Kartik Patar, the cultivator said that he Chandra. Shashidhar met the appellant on Friday night. They asked the appellant as to where the children Anango and Gourang