M. PAPANNA, J.

( 1 ) THIS is a death reference under S. 366 of the Code of Criminal Procedure made by the learned Additional Sessions Judge, Koraput (Jeypore), who on conclusion of trial in Sessions Case No. 8 of 1999 convicted the accused under Ss. 302/392 of the Indian Penal Code and imposed on him an extreme penalty of death and sought for confirmation of the death sentence against him. The accused challenged the impugned conviction and sentence by preferring an appeal from jail. The death reference as well as the Jail Criminal Appeal having given rise to common questions of fact and law, were heard analogously and are being disposed of by this common judgment.

( 2 ) PROSECUTION case is that Anirudha Sahu, a peon of Sales Tax Department along with his wife and daughter, was residing in Flat No. DCF-F/79 in the Irrigation Colony at Jeypore at the material time. The accused is of village Niranguda. He happens to be the agnetic nephew of the deceased-Anirudha. He was carrying on turmeric and mustard business. He had visiting terms to the house of the deceased. It is alleged that he had gone to the house of the deceased and stayed there during night of 3/4-6-1998. During the said night, he committed the murder of the deceased-Anirudha, his wife and their daughter by stabbing on their necks by means of a knife while they were in their slumber. He robbed them of their cash, gold ornaments, wrist watch etc. The accused left the house of the deceased in the following morning, after Babu Lenka (P. W. 1), a neighbour opened the grill gate at early hours of the said morning. At that time, a Pan shop owner (P. W. 2) saw the accused going from the direction of the house of the deceased. After finishing his morning walk, Babu Lenka (P. W. 1) returned home in the said morning. He again went to the market and came back at about 11 a. m. He was surprised to see that none of the family members of the deceased including their little daughter Puja was coming out from their house and going to his house as usual. Out of curiousity his brother Kanhu and his friend Lingaraj climbed a guava tree and found the lights in the house of the deceased burning and fans on. All of them broke open the lock of their door. They were surprised to see Anirudha, his wife and their little daughter lying dead inside their house with bleeding injuries on their necks. Gold ornaments from the neck of Lata were found missing. Their almirah was opened and all their household articles were ransacked. At that juncture, the guest, who had come to the house of the deceased during the fateful night of the occurrence was missing. So he was suspected to have robbed them of their valuables by murdering them. Jeypore Town P. S. Case No. 148 of 1998 was registered on the F. I. R. (Ext. 1) lodged by P. W. 1 Ext. 1 discloses that during night of 3/4-6-1998 around 9 p. m. Lata, wife of Anirudha had come to the house of Babu Lenka as usual. At that time, her daughter was playing there. When Lata was going back she called her daughter. Then when his mother asked Lata to stay for a while, she replied that a guest from the village had come to their house and she would serve him food. So saying she left for her house along with her daughter, Puja. During investigation, the Investigating Officer visited the spot, examined the witnesses, held inquest over the dead bodies of the deceased persons, sent the same for autopsy, made seizure of incriminating articles, arrested the accused, who while in police custody made disclosure statement leading to discovery of weapon of offence, a wrist watch, cash and gold ornaments of deceased-Lata and Puja. On conclusion of investigation of the case, the Investigating Officer laid charge-sheet against the accused.

( 3 ) PLEA of the accused is that he is innocent of the allegations fastened to him. In his statement under S. 313 of the Code of Criminal Procedure he has admitted that police seized money and ornaments during investigation of the case. But