M.C. Jain, J.
1. The learned Sessions Judge. Sri Ganganagar by his judgment dated March 12. 1976 convicted the appellants Malsingh and Bharatsingh of the offence under Section 302, IPC and sentenced them to imprisonment for life. He, however, acquitted the accused appellants of the charges under Sections 302/34 and 201, IPC.
2. The prosecution case, in brief, is that the deceased Surjeetsingh (30) with his wife Smt. Pal Kaur (P W, 4) was living separately from his father Gittan Singh (P. W. 1). Gittatnsingh (P. W. 1) was living with his wife Smt Balbirkaur (P. W. 5) and his three sons; namely, Darshansingh, Tejsingh and Baldevsingh. The house of surjeetsingh was at a distance of about 20-25' ft. from the house of Gittansingh facing each other. The accused-appellants Malsingh and Bharatsingh were living in the same village 11 NP.. for the last about 4 years. The land of the accused Bharat Singh and the deceased Surjeetsingh was situated in the same Murbba in 11 NP adjoining to each other and the land of the accused Malsingh was situated in the adjoining murbba. The turn of water of Surjeetsingh was at 12.23 in the noon and was for a period of 3i hours and he used to take his turn of the water from one Najarsingh. Najarsingh had taken the land from the refugees on share basis. The accused appellants got the land in exchange from one Mukhtiyarsingh and as per the prosecution case, Malsingh also got his house in exchange, Mukhtiyar Singh's father Jaisingh was also living in 11 NP 7-8 years prior to the occurrence. Gittansingh (P. W. 1) Surjeetsingh and Makhansingh, the nephew of Gittan Singh were prosecuted for the murder of Jaisingh, to which case all the three were acquitted. After the murder of Jaisingh, his son Mukhtiyarsingh and Mithu left the village 11 NP and went to village 58 NP. About a week prior to the occurrence, it is said that the water course of the accused Bharatsingh was broken by Surjeetsingh. which annoyed him and by the intervention of the Panchayat the matter was settled. It is further alleged that on 17-7-1974. the accused Malsingh came to the house of Surjeetsingh with a gun and called Surjeetsingh. but' his wife Smt Palkaur (P. W. 41 did not allow him to go out in the night. On 18-7-1974, the turn of taking water of Surjeetsingh was to begin at 12.23. At about 12 in the noon. Surjeetsingh came with one camel and a buffalo to his house and the accused Malsingh was also with him. P. W. 1 Gittansingh was sitting outside the house and Smt. Palkaur YP. W. 4) wife of Surj,eetsingh was also sitting in the entrance of her house. Surjeetsingh asked Smt. Palkaur to prepare tea as there was little time left for the turn of his water. Thereupon, it is said that the accused Malsingh told that the tea is ready at his house, Thereafter Surjeetsingh went with Malsingh and he also took his transistor with him. When Surjeetsingh did not reach the field for taking water from Najarsingh, Najdrsingh came at about 12.30 or 12.45 P. m. and told Gittansingh that Surjeetsingh had not reached the field. On this. P. W. 1 Gittansingh requested Najarsingh to divert the water course into the field of Surjeetsingh and Gittansingh went in search of Surjeetsingh. He went to the house of the accused Malsingh. He found the house closed. Then he went to the adjoining house of the accused Bharatsingh. The entrance of the house of Bharat Singh was found open and there was none inside the house. He went inside the house and called Surjeetsingh, but none responded. But he saw a cot lying in a standing position near the intervening wall of the house of the accused persons, He also called after climbing on the cot. but nobody responded from the house of Malsingh. He found one cot in the same situation in the house of Malsingh as well. When he was returning to his house, P. W. 2 Chanansingh met him in the way and told him as to where he is moving about and divulged that the accused persons were seen by him running and then, he called them and asked them as to why they were running. Thereupon, they stopped Bharatsingh blurted out that they have murdered Surjeetsingh. Both of them beseeched him to save them. Thereupon. Gittansingh started crying, which attracted the people from the neighbourhood. Thereafter they went to the house of Malsingh. They observed that blood was coming out from the 'Kotha' in which fodder was stored in the house of Malsingh. Then, they went inside the Kotha and saw the dead body of Surjeet Singh lying in a pool of blood with sharp-edged weapon injuries on his person. P. W. 1 Gittansingh left for the police station, Rai singhnagar on foot, which was situated at about 6 miles and lodged the report Ex. P/l at 3.30 P. m. P. W. 8 Rak-shpalsingh. ASI registared the case under Section 302, IPC. Thereafter, he visited the spot and prepared the Furd Surat Mal Lash (Ex. P/l) and Pan-chayatnama (Inquest report) Ex. P/4 site-plan (Ex. P/5) and site-note (Ex. P/5A). Thereafter, he handed over the investigation to the Station House Officer Shri premnath (P. W. 9). The S. H. O. Premnath seized the transistor (Article 1) of the deceased from the residential Kotha of Malsingh vide memo Ex. P/8. The licence of the Transistor (Article 2) was produced by P. W. 1 Gittansingh, which was seized vide memo Ex. p/10. An autopsy on the dead body was conducted at 5.15 P. m. by P. W. 6 Dr. Pri-thviraj. The blod-stained kachha of the deceased (Article 5) was also seized vide memo Ex, P/9. The accused persons ware arrested on July 20. 1974 vide arrest memos Exs, p/ll and P/12. Both the accused persons gave information with regard to the weapons on 25-7-1974. The accused Malsingh gave information in respect of the bloodstained Salang to be lying concealed in the fodder of the kotha towards the southern side, the memo whereof is Ex, P/13 and the accused Bharatsingh gave information in respect of the blood stained Gandasi which is lying in the fodder kotha of the house of Malsingh concealed under the Ganwar Foddar, The information memo is Ex. P/14. Both the accused persons, in pursuance of their information and at their instance, got the weapons recovered, the recovery memo of Salang (Article 41 is Ex. P/15 and recovery memo of Gandasi, (Article 3) is Ex, P/l6. Both the weapons were found smeared with blood and both the weapons were separately packed and sealed. At the time of effecting recoveries, they entered into the fodder kotha through the residential kotha, the lock whereof was opened b the mother of the accused. The lock (Article 6) was seized vide memo Ex. P/17. The sealed packets of the weapons were sent for chemical Examination. They were found stained with blood by the Chemical Examiner vide his report Ex. P/18 and Serological report reveals that both the weapons were stained with human blood. Investigation was conducted from the witnesses and after completion of the investigation, charge-sheet was put up against the accused persons. The accused persons were committed for trial. They were charged of the offences under Sections 302. 302/34 and 201. IPC, They pleaded not guilty to the charges and claimed to be tried. At the trial, the prosecution examined P. W. 1 Gittan-singh. P. W. 2 Chanansingh (aged 60 years) r/o 40 PS. P. W. 3 Kripal Singh P. W. 4 Smt. Pal Kaur. p. w. 5 Smt, Balbir Kaur, p. W. 6 Dr. Prithvi Raj, P. W. 7 Harisingh Constable (who carried the sealed packets to the Forensic Science Laboratory. Jaipur), p. w. 8 Rakshpalsingh, ASI and P. W. 9 Prem-nath S. H. O. The statements of the accused persons were recorded, in which they denied the prosecution case and stated that they had gone on pilgrimage to Booddhajod along with their wives leaving behind their mother and child-; ren. They further stated that D. W. 1 Mukhtiyarsingh s/o Jaisingh had come on the previous night. The house belonged to him and the possession of the house was not delivered to Maisingh. Both of them were living in the house of the accused Bharatsingh. They used to make use of the kotha of Mukkh-tiyarsingh in need. When they returned from Booddhajod, they came to know that the charge of murder has been levelled against them. Thereafter, on the second day, they surrendered themselves at the police station. When they left the house for taking bath at Bud-dhajod in the morning on the day of Amavas on 19-7-1974, they left Mukhtiyarsingh at the house. The accused persons examined Mukhtiyarsingh in defence as D. W. 1. The learned Sessions Judge after hearing the arguments, convicted both the accused persons of the offence under Section 302, IPC and acquitted them of the offence under Sections 302/24, and 201, I.P.C. Aggrieved by their convictions, the present appeal has been preferred.
3. We have heard Mr. K. C. Gour assisted by, Mr. Niranjan Gour, learned Counsel for the accused-appellants and Mr. M. C. Bhati, learned Public Prosecutor for the State.
4. We may first notice the iniuriea on the person of the deceased Surjeet' singh. The post-mortem examination conducted by P. W. 6 Dr. prithviraj on 18-7-1974 at 5.15 P. m. revealed that the deceased had the following external injuries:-
1. Incised wound oblique 6' x 3' deep upto the brain matters cutting right ear on right side of head with fracture of frontal parietal and temporal bones. Brain matter visible in the wound.
2. Incised wound oblique 6' x l1/2' x bone deep with fracture left mendible bone on left side of face.
3. Incised wound oblique 3' x 1' X bone deep 1/2' below and lateral to injury No. 2.
4. Lacerated wound transverse 11/2' x 1/8' x 4' on left eye-lid.
5. Incised wound transverse 1' x 4' x muscle deep at the site cricoid cartilage.
6. Incised wound transverse 3' x 1/2' x muscle deep on front neck just above the strenum
7. Incised wound oblique 3' x l/6' to I' x Muscle deep an right side of chest 1' above the right nipple.
8. Incised wound oblique 6' x 1/6' to 11/2 x bone deep on right side of chest fracturing right 6th rib, fractured fragments injuring lower lobe of right lung.
9. Incised wound oblique 3' x 1' x muscle deep on front of right side of chest at the level of 1/2' above the right nipple.
10. Incised wound oblique 3' x 1/2 x muscle deep 1/2' above injury No. 9.
11. Incised wound oblique 6' x l/8' to i' x muscle deep on front of chest at right nipple,
12. Incised wound oblique 4' x 1/2' x muscle deep 1/2' below injury No. 11.
13. Incised wound oblique 4' x 2' amputating left forearm at the level of wrist. Both fragment attached by a tag of skin.
14. Incised wound verticle, 5' x 1' x muscle deep at the centre of back of left palm.
15. Incised wound semi-circular 4' x li' with fracture radius and ulna on lower one third of left forearm.
16. Both right little and ring fingers amputated at the distal inter phalangeal Joint
17. Incised wound transverse 2' x 1/2' x bone deep on palmer aspect of right hand at the root of index and middle finger.
18. Incised wound transverse 5' x 1/2' x bone deep on back of right hand.
19. Incised wound transverse 3' x l' fracture of right radius bone 4' above the wrist joint of right forearm.
20. Incised wound oblique 4' x l' with fracture right ulna l' above the wrist joint of right forearm.
21. Incised wound transverse 4' x 1/2' on middle of outer aspect or right arm with fracture right humerous bone,
22. Incised wound oblique 3' x 11/2' with fracture right humerous bone on inner aspect of right arm at the level of lower one third.
23. Incised wound 4' x 21/2' bone deep at the site of front of right shoulder joint with its cavity open.
24. Incised wound semi circular 4' x 1' bone deep on outer side of right knee joint.
25. Lacerated wound 1' x 3/4' muscle deep on left side of chest at the level of 7th rib on anterior axillary.
5. It would appear that the deceased in all had 25 injuries. Out of which, injuries No. 4 and 25 were lacerated wounds and the rest were incised wounds. According to the medical opinion the deceased died of shock and haemorrhage due to multiple injuries. He stated that the injuries were sufficient in the ordinary course of nature to cause death and injury No. 1 alone, was sufficient to cause death in the ordinary course of nature. He also-expressed that sharp weapon injuries on the person of the deceased could be caused by the Gandasi (Ex. P/3) and the blunt weapon injuries could be caused by Salang (Ex. P/4) and by the handle of the Gandasi,
6. The evidence led by the prosecusions was divided by the learned Sessions Judge under the following categories :-
1. The deceased was last seen immediately before the murder with the accused persons.
2. Recovery of blood-stained Jali (Salang) (Article 4) and Gandasi (Article 3) from the accused Malsingh and Bharat-singh respectively,
3. Recovery of the transistor of the deceased from the house of Malsingh.
4. Recovery of the dead body from the house of Malsingh accused.
5. Evidence of the eye-witness P.W. 5 Smt. Balbir Kaur.
6. Motive for the murder.
7. Evidence of the extra-judicial confession made by the accused persons.
7. The learned Sessions Judge relied on the prosecution evidence in respect of all the above seven matters, in which he divided the evidence and found both the accused persons guilty of the offence under Section 302 IPC. He however, did not discuss as to how each one of the accused persons is (guilty of the offence under Section 302 simpliciter and he also did not record any finding as to the non-applicability of Section 34. IPC and without recording any finding relating to Section 34, IPC simply acquitted the accused persons of the charge under Section 302/34, IPC.
8. We may now first consider the direct evidence of P. W. 5 Smt. Balbir Kaur, which has been relied upon by the prosecution, P, W. 5 Smt. Balbir Kaur stated that in the noon, when she was carrying food for her sons. Tej-singh, Baldeosingh and Darshansingh to the field, her husband was sitting out side the house on the chaubutari and when she reached in front of the house of Malsingh. then she heard Malsingh saying to the accused Bharatsingh not to spare but to kill. This voice of Malsingh came from the house of Malsingh. The door of the house of Mal-singh was closed. She looked through a hole in the door and saw that Malsingh was armed with Salang and Bha-rat Singh was armed with gandasi and both of them were assaulting one man in the kotha. At that time, she did not come to know as to who the victim was. Thereafter, she left for the field and according to her, she narrated what she had observed to her three sons and told them that she does not know, who was being assaulted. Her son, there--after, took their meals. After half an hour, her son Baldeosingh told her to return to the: house and that he will bring the utensils. When she was returning then she saw an assembly of persons in front of the house of Malsingh, P. W. 2 Chanansingh and P. W. 3 Kripal Singh were also there. They told her that the accused persons have killed Surjeetsjngh in the house of Malsingh and she was also informed that her husband P. W. 1 Gittansingh had gone to the police station for making the report.
9. 'The testimony of this witness has been assailed by Mr Gour, learned Counsel for the accused-appellants that the conduct of the witness is most unnatural and abnormal. She did not disclose what she claims to have observed, while going to the field even to Kripalsingh and Chanansjngh, who had informed her about the murder of Surjeetsingh by the accused in the house of Malsingh. Had she seen the accused persons assaulting any one. she would have immediately divulged that fact to these witnesses and to others, who had assembled there. Her statement was not recorded by the police on that very day, but was recorded after 7 days on 25-7-1974 P.W. 1 Gittansingh also stated in the crossexamination that he had no talk with his wife on 18-7-1974. She was only crying among the ladies, so she did not talk with him. Thus, it appears from the statement of P. W. 1 Gittansingh that P. W. 5 Smt. Balbirkaur even did not disclose the fact of observing the accused persons assaulting any person in the noon, in the house of Malsingh when she was carrying meals for her sons. Learned' counsel also argued that none of the sons have been examined by the prosecution to corroborate the statement of Smt. Balbirkaur, Her conduct was also assailed on the ground that according to her on the identification of the voice of Malsingh, Smt, Balbirkaur took care to go to the door of the house of Malsingh and to look through the hole of the door. It does not appear to be natural that she would have not raised any alarm to attract the people to the scene of occurrence. She stated that she raised no 'rola'. It was also pointed out by Mr. Gour that there are contradictions in her statement. In her police statement (Ex. D/5), there is mention in the portion A to B that she heard the cries 'Maar Diya, Maar Diya'. She had denied to have stated so in the police statement (Ex. D/5). What she had? stated is that slow voice of the victim was coming. In this manner the witness tried to improve over her police statement. Thus, at the trial rather she refused to identify the voice of her son. Besides that, it is not mentioned in Ex. D/5 that Kripalsingh and Chanansingh informed her that the accused persons had murdered Surjeet Singh and that her husband was sitting out side the house, when she was carrying, the meals to the field for her sons. Another infirmity pointed out by Mr, Gour is that the existence of hole to the door is also doubtful as there is no mention of it in the site-plan (Ex. P/5) and site-note (Ex. P/5A). So it is urged by Mr. Gour that looking to these serious infirmities, in her statement particularly her unnatural conduct, no reliance should be placed on the statement of Smt. Balbirkaur and her evidence appears to have been created out of necessity.
10. We have considered the above criticism levelled against the testimony of Smt. Balbirkaur. In our considered opinion, the testimony of Smt. Balbirkaur, in view of the above criticism, does not inspire confidence, The evidence of Balbirkaur does not appear to be truthful. Her conduct in keeping mum at the time when the fact of murder of her son by the accused-persons, was disclosed to her, renders her testimony unworthy of credence and also her conduct in not raising any alarm before she proceeded to the field, makes her testimony unbelievable Her late examination also casts a cloud of suspicion in the reliability of her version. It was strange that the investigating officer after 18-7-1974 visited the house of Smt., Balbirkaur to record her statement on 25-7-1974 and did not care to record her statement, if not on 18-7-1971-at least on the next day. If on 18-7-1974, he did not find Smt. Balbir Kaur in a fit and proper frame of mind as she was under shock of her son, and was crying and weeping, in such a situation her statement should have been recorded on the next day.
11. In Ganesh Bhavan Patel v. State of Maharashtra : 1979CriLJ51 . it was observed as under:-
Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case, but it may assume such a character if 'there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced, Thus, under the facts and circumstances of the case, delay in recording the statements of the material witnesses casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses.
12. Reference may also be made in this connection to Balakrushna Swain v. The State of Orissa : 1971CriLJ670 . Gambhir v. State of Maharashtra 1982 SCC (Cri) 431' : 1982 Cri LJ 1243. State of Orisaa v Brahmananda Nanda (1976 SCG (Cri) 596 : (1976 Cri LJ 1985). Chanansingh v. State of Haryana : AIR1971SC1554 and Wahid v. State of Rajasthan 1981 Rai Cri C 274.
13. In Balakrushna Swain's case (1971 Cri LJ 670) (SO (supra), it has been held that where the sole eyewitness does not disclose the occurrence to the police or to any body in the village, it casts a serious doubt on the version of that witness and the testimony of such witness is rendered unbelievable.
14. Thus, we are of the opinion that the evidence of Smt. Balbir Kaur is not acceptable and no reliance can be placed on her testimony.
15. Another most material evidence in the case is the evidence of P.W. 2, Chanansingh relating to extra-judicial confession, P. W. 2, Chanansingh is the resident of 40 PS. According to him, he first came to Raisinghnagar Mandi from 40 PS and then to 11 MP-From Rasinghnagar Mandi. he got down at the bus-stand of 6 TK and from Bus-stand of 6 TK, he started on foot to 11 MP. He was to go for condolence to 'phoolo' village, where his son's wife had expired. He. had come to 11 MP to take Jarnailsingh. Sandu of' his son, to the village Phoole. According to him, when he was at a distance of l Sq. from village 11 NP. he saw the accused Bharat Singh and Malsingh running towards the bus-stand 6 TK. At that time, he asked them as to why they were running. Both of them with folded hands told him that both of them have killed Surjeet Singh after bringing him at the house of Malsingh. He implored them to save him. It was at about 1.30 p.m, At that time, both the accused persons called him as Mama. Both the accused persons then ran away. Soon thereafter, in front of the house, of Malsingh, Gittan Singh met him and he told him as to where he is moving about, his son has been killed in the house of Malsingh by Malsingh and Bharatsingh. Thereupon, P.W. 1 Gittansingh started weeping, which attracted Kripalsingh. Naiarasingh and others. P. W. 1 Gittansingh scaled the wall and entered into the house of Malsingh and unbolted the door from inside. Then all of them entered into the house of Malsingh and saw the dead body of Surjeet Singh in the Fodder Kotha. He also stated that when he saw the accused persons running, their clothes were stained with blood.
16. Mr. Gour, in connection with the testimony of this witness, submitted that he is a chance witness. He is related with Gittansingh as Gittansingh's daughter is married with the son of Chanansingh's brother. The evidence of this witness should be judged and tested on the touch stone of probability as well. According to this witness as well as P. W. 1 Gittamsingh, the accused persons knew that Chanan-singh is related to Gittansingh. It was highly improbable that the accused persons would have blurted out the confession to a close relation of P. W. 1 Gittansingh.
17. Mr. Gour, also submitted that this witness in his police statement Ex. D/2 has not stated the purpose of his visit to 11 NP and simply stated that there are his relations at 11 NP and it is also not mentioned in Ex. D/2 that Surjeetsingh was killed after being brought to the house of Malsingh and also, it does not find mention in Ex. D/2 that the accused persons called him as Mama at the time when they were seen running. Besides that, it was also pointed out by Mr. Gour that Jarnail-singh, the Sandu of his son resident of 11 NP has not been examined to corroborate the testimony of Chanansingh and further, according to Chanansingh when he disclosed the fact of the occurrence to Gittansingh, there were 5-7 persons with him at the time, none of them have been, examined by the prosecution, so as to land assurance in the truth of the version given by this witness. It was also vehemently urged by Mr. Gour that the Supreme Court has laid down in number of cases that the evidence of extra-judicial confession by its very nature is of a weak character, Reference was made by him to jagta v. State of Haryana 1974 SCC (CM 657) : 1974 Cri LJ 1010, Rahim Beg v. State of U.P. 1972 SCC (Cri) 827 : 1972 Cri LJ 1260 and decision of this Court in State of Rajasthan v. Jaganmath Singh 1955 Rai LW 39.
18. In connection with the reliability of this evidence, it was also pointed out that the first information report in the present case appears to be post investigation. According to P. W. 1 Gittansingh, after lodging the report, he went to his Artiya Chabaram at Raisinghnagar and brought a sum of Bs, 1000/-. from him and he returned back to the police station after bringing the money, P. W. 9 Premnath, SHO Police Station, Raisingnagar came to the soot directly from Mohannagar on. being informed by the constable. According to him. the F.I.R. (Ex. P/l) along with other papers was delivered to him by Rikshpal Singh at the spot. From these circumstances Mr. Gour, strenuously made an effort that in fact, the first information report was recorded at the spot and the fact regarding making of extra-judicial confession to P. W. 2 Chanansingh by the accused persons has been falsely introduced.
19. We have given our serious and anxious consideration to the submissions of Mr. Gour in connection with the reliability of the testimony of P.W. 2 Chanansingh. After perusal of the statement, and after considering the fact and circumstances of the case as have appeared in the evidence, we, have absolutely no doubt, in the truthful nature of his evidence. It is true that P. W. 2 Chanansingh is related to P. W. 1 Gittansingh and it is also true that the relationship was known to the accused persons and further it is also true that only by chance. P, W. 2, Chanansinsth happened to be present near the village 11 NP, when he saw the accused persons but the presence of P. W. 2 Chanansingh at 11 NP cannot be doubted. Had he not visited 11 NP his name would not have found mention in the report (Ex. P/l). His presence is further established by the documents of spot investigation. He is the motbir of the Panchayatnama (Ex. P/4) and the Furd Surat Mal Lash (Ex. P/3) which were prepared by Rikshpalsingh, ASI. P.W. 2 Chanansingh is a resident of 40 PS This place is quite far off from 11 NP. As from 40 PS, first he had come to Raisinghnagar Mandi and then came to 6 TK and only from 6 TK that he had come on foot to 11 NP-Ordinarily, he could not be present at 11 NP unless he had come there with certain purpose. He has stated that he came to take with him Jannailsingh to the village Phoole, where his son's wife had died, to pay condolence second time. Simply because, he is resident of 40 PS and happened to be present by chance, his testimony does not cease to be reliable. As regards the probability of the accused persons blurting out the confession to him knowing it that he is related to Gittansingh, it may be stated that the witness met the accused person soon after the murder near the place of occurrence in the mid-day. The accused-persons were known to him and used to call him maternal uncle as his sister was married in the village to which, the accused persons belonged. After commission of the offence, it may be that the accused persons in the wake of feeling of remorseness made the confession before him. It is significant that only on being questioned as to why they were running, the accused Bharatsingh gave out that both of them have killed Surjeetsingh. Both of them with folded hands besee-ched him to save. The omissions referred to by Mr. Gour, in our opinion, are not so material on the basis of which the testimony of this witness may be discredited. As regards, non-examination of those persons, who are said to be present with P., W. 1 Gittansingh, it may be stated that at the time when confession was communicated to Gittansingh only Gittansingh was present and none else was present. The people were attracted only after Gittansingh started crying, P. W. 2 Ghanan-singh had stated that he also conveyed the parentage and residence of the accused-persons to Gittansingh and in this context, the witness has stated that at that time, there were 5-7 persons present with Gittansingh. It was not necessary for the prosecution to have examined any one of those persons or Jarnailsingh. For the presence of P. W. 2 Chanansingh, there is ample evidence on record oral and documentary. The other witnesses have stated about his presence, which gets support from the documents, of spot investigation. So far as this argument is concerned, that the first information report is a post investigation document and was recorded at the spot, it has been advanced simply for the purpose of advancing it. It is not at all convincing and it does not stand scrutiny. No question has been put to P. W. 1 Gittansingh as to why he brought money from his Artiya and no question has been put either to Rikshpalsingh or to Premnath as to why the first information report was brought at the spot. The first information report appears to have been brought to be delivered to the S. H. O. as message was already conveyed to the S. H. O, regarding registration of the case. So with a view to acquaint Shri Premnath with the contents of the first information report, the first information report was brought by Rikshpalsingh at the spot. On that basis, it cannot be said that the first information report is a post investigation document. To us it appears that the first information report was lodged promptly in this case and the fact of making the extra-judicial confession by the accused persons to P, W, 2 Chanansingh finds place in the first information report. Till the confession was communicated to Gittansingh, Gittansingh was unaware of the crime. P. W, 1 Gittansingh has stated that he had come to find out his son as he had come along with Malsingh. But when he did not find him at the house of the accused-persons, he was returning. It was natural for Gittansingh to have come to make a search for his son Surjeetsingh, as Najarsingh had informed him that Surjeetsingh had not visited the field to take water from him. His turn of water started at 12.23 p. m. It is only, when confession was communicated to Gittansingh by Chanansingh, that both of them along with others, visited the house of Malsingh and found the dead body there. Thus, it is a case where the ghastly murder in the midday in the house of Malsingh, came to light on the revelation of the crime by the accused persons to Chanansingh, soon after the murder. It is true that the Supreme Court as well as the High Courts have observed ' that the evidence of extra-judicial confession is a weak type of evidence but where the evidence is reliable, the courts have also acted upon it, and conviction can be recorded on the basis of reliable evidence relating to extra-judicial confession.
20. Thus, in our opinion, the evidence of P. W. 2 Chanansingh is worthy of credence and is acceptable and can be acted upon.
21. We may next consider the evidence of recovery of Salang and Gan-dasi. Both the accused persons gave information in respect of the weapons namely, regarding Salang by Malsingh and regarding Gandasi by Bharatsingh on 25-7-1974 vide information memos Ex. P/13 and Ex. P/14 respectively, and got these weapons recovered on the same day from that fodder kotha, in which the dead body of Surjeetsingh was found, The recovery memo of gandasi is Ex. P/l6 and of Salang is Ex. P/15. Both these weapons after recovery, were packed and sealed and were sent for Chemical & Serological Examination. On examination both the weapons were found stained with human blood. The salang Ex. P/15 was lying concealed in the southern corner under the heep of tudi-fodder. The blood was detected on the fork part beneath the pole in a distance of 1 ft. and it was stained with blood at several places, Similarity, the gandasi was lying concealed in the north-eastern corner of the same kotha beneath the fodder of gamwar. There was blood on the blade and fodder was sticking, as would appear from the recovery memos Ex. P/15 and Ex. P. 16. P. W. 9 Premnath has stated that after the recovery of the weapons, at the instance of the accused, the weapons were packed and sealed and were kept at the police station. Till they remained in his custody and were sent for chemical examination, their seals were not tampered with and were intact, P. W. 7 Harisingh is the foot constable. who carried the sealed packets from the police station. According to him, when the sealed packets were delivered to him the seals were intact and till they remained in his custody and were delivered to the Chemical examiner, their seals remained intact and untampered.
22. The prosecution has also examined the motbir of the recovery P.W. 3 Kripalsingh. The deceased was his uncle's grandson, but on account of that relation, his testimony cannot be discarded. The testimony of P. W. 9 Premnath with respect to the recovery of the weapons gets full support from the testimony of P. W. 3 Kripalsingh. He states that the accused persons got their respective weapons recovered, which were stained with blood and both the weapons i. e. gandasi and salamg were packed and sealed. The evidence of recovery has been assailed on the ground that the place of recovery was known to the investigating officer as the weapons were recovered from the same kotha, where the dead-body was lying, in such a situation, the evidence of recovery is meaningless as the weapons could have been recovered otherwise and there is no meaning of effecting recovery at the instance of the accused persons. We find no substance in this contention of Mr. Gour. It is note worthy that the weapons were concealed under the heap of fodder. The argument appears to be imaginative. There is nothing in the evidence that the weapons were visible and were not lying concealed and so, it cannot be said that the places of the weapons were known to the investigating officer.
23. The other contention advanced bv Mr. Gour is that there is no satisfactory evidence that the seals of the packets of the weapons remained intact. According to Mr. Gour, the Malkhana remains under the charge of Head-Mohrir, who has not been examined in this case. In the absence of his evidence, it cannot be said that the seals were not tampered with at the police station. We are not impressed with the argument of Mr. Gour, learned Counsel for the accused persons. There is a categorical statement of P. W. 9-Premnath that at the police station, the sealed packets remained in his custody and during his custody, nobody interfered with the seals. The seals remained intact till they were delivered to Harisingh. It was also pointed out that Harisingh does not state of which case, the sealed packets were delivered to him. In this connection, reference may be made to the report of the Forensic Science Laboratory. Ex. P/18. There is a clear mention of the first information report, number, its date and the name of the Police Station. There is a further mention that the packets were received per special massenger. The non-mention of the name of the special messenger in Ex. p/18 is inconsequential. The packets, which were sent to the State Forensic Science Laboratory were of this case as would appear from Ex. P/18 and were sent through Hariaingh. So. there is no infirmity in the prosecution case with regard to the evidence of sealing of the packets and they remained intact till they were delivered to the State Forensic Science Laboratory. Thus, in our opinion, circumstance of the recovery of the weapons on the information and at the instance of the accused-persons, which were found stained with human blood, can be employed against the accused persons and we find no infirmity in tihis evidence.
24. We may further mention that the other circumstances are also amply proved by the prosecution evidence. The dead body was found in the house of the accused Malsingh. Malsingh was in occupation of the house, as the door was unlocked by his mother. Mal-singh's occupation of the house is amply proved by the evidence of P. W. 1 Gittansingh, P. W. 2 Chanan Singh, P.W. 4 Pal Kaur w/o Surjeetsimgh (deceased). P. W. 3 Kripalsingh and P. W. 5 Smt. Balbir Kaur. The statement of D. W. 1 Mukhtiyarsimgh in face of the evidence on record does not appear to be true when he states that the southern house was occupied by him and only the northern house was occupied by Bharatsingh and Malsingh and it was his fodder which was lying in the other 'house and whenever he used to come, he used to stay therein. On the basis of the evidence led by the prosecution, we are clearly of the opinion that it is amply proved that the house in question was in occupation of Malsingh and weapons of the offence as well as the dead body were recovered from that house. It is also amply proved that a transistor belonging to the deceased, was recovered from the house of Mal-.singh. There are the statements of Smt, Pal Kaur and Gittansingh that at the time, when the deceased left the house, he carried the transistor with him and that was found in the residential kotha of Malsingh as stated by Premnath, S. H. O. Its recovery memo is Ex. P/9 and the licence thereof was produced bv P. W. 1 Gittansingh. Thus, it is proved that the transistor belonging to the deceased (Article 5) was recovered from the Kotha of Malsingh accused.
25. Another circumstance. which stands proved, is that the deceased immediately before his murder was in the company of Malsingh. With regard to this circumstance, there is the testimony of P. W. 4 Smt. Pal Kaur. she had stated that her husband came with a camel and buffalo and the accused Malsingh was with him and she was asked by her husband to prepare tea. Thereupon, the accused Malsingh told that they will take tea at his house, P, W. 1 Gittansingh also supports the statement of P. W. 4 Smt. Pal Kaur. Thus, it would appear that the deceased went along with Malsingh. This circumstance is an important circumstance against the accused Malsingh. The version of P. W. 1 Gittansingh and P, W. 4 Smt. Pal Kaur further gets support from the fact the transistor was found in the residential kotha of the accused Malsingh. Thus, this circumstance is amply proved that the deceased was seen last in the company of the accused Malsingh immediately before his murder.
26. As regards the motive it was contended that there was no motive with the accused persons. After breaking of the water course normal and neighbourly relations were restored. There are the statements of P. W. 1 Gittansingh. P. W. 3 Kripalsingh and P. W. 5 Smt. Balbirkaur relating to the breaking of the khala of Bharatsingh by the deceased Surjeetsingh and there was verbal altercation but the matter was settled. It appears that despite settlement, on account of intervention of the Panchayat, the accused persons in their inner heart, were not satisfied and they betrayed the trust, which the deceased reposed in them. It appears that the accused Malsingh took the deceased with him with criminal design and intent on his part, although exhibiting to the deceased that his relations with him are quite congenial and normal, as he expressed that both of them will take tea at his house. It was a most treacherous act. it appears that the accused persons took it in their hand to take revenge some day and that found manifestation in the gruesome murder. Thus, there was motive with both the accused persons, who are real brothers.
27. From the circumstances considered above, it is amply proved that both the accused persons had a common intention to cause the death of Surjeetsingh and were responsible for his murder. These circumstances are established against the accused Malsingh that the deceased was last seen in his company before his murder; that the dead body of the deceased was found in the fodder kotha of Malsingh, a transistor of the deceased was recovered from the residential kotha of the accused Malsingh and on the information, at his instance, the bloodstained Salang was also recovered from the kotha, where the fodder was stored; he was party to the confession made to P. W. 2 Chanansingh along with his brother Bharatsingh. These circumstances show that he along with his brother Bharatsingh shared the common intention of murder. As against the accused Bharatsingh, there are the circumstances of motives and extra-judicial confession. Besides that the gandasi stained with human blood was recovered in pursuance of his information at his instance. Further the weapons recovered are connected with the nature of the injuries found on the person of the deceased as is evident from the medical evidence. Thus, from the above mentioned circumstances, the conclusion is irresistible and inescapable that both the accused persons were responsible for causing the death of Surjeetsingh.
28. The most crucial and controversial questions that arise for consideration in the present appeal are whether the appellants can be held guilty of the offence under Section 302 I.P.C. simpliciter if not, whether despite their acquittal under Section 302/34 I.P.C. they can be convicted under Section 302/34 I.P.C. Mr. Gour. vehemently urged that if the evidence of P. W. 5 Smt Balbirkaur is discarded. then there is no ocular evidence on record to the effect that the accused Bharatsingh inflicted blows with gandasi and the accused Malsingh inflicted blows with Salang. Simply on the basis of the recovery evidence of weapons, it cannot be found that the gandasi was used by the accused Bharatsingh and Salang was used by the accused Malsingh. He further submitted that even if it is found on the basis of recovery evidence that the accused Bharatsingh used the gandasi and Malsingh used the Salang, the conviction of the accused Malsingh under Section 302 simpliciter is not sustainable (sic) as the blunt weapon injuries on the person of Surjeetsingh (deceased), are not in the nature of lecerated wounds and they were not sufficient in the ordinary course of nature to cause death. Mr. Gaur urged that the State has not preferred any appeal against the acquittal of the appellants with regard to the charge under Section 302/34 I.P.C. so now with the aid of Section 34 I.P.C. none of the appellants can be convicted for the offence under Section 302/34 I.P.C. In support of his contention, Mr. Gour placed reliance on the decisions of the Supreme Court in Sohanlal v. The State of U.P. 1971 SCC (Cri) 206 : 1971 Cri LJ 1458 and Ashok Kumar v. State of Punjab 1977 SCC (Cri) 177 : 1977 Cri LJ 164.
29. We may first consider the question as to whether the conviction of the appellants for the offence under Section 302 simpliciter can be sustained. We have not accepted the evidence of P. W. 5 Balbirkaur, so her evidence cannot- be pressed into service. It may be stated that the deceased in all had 25 injuries, out of which, injuries Nos. 4 and 25, were in the nature of lacerated wounds. Injury No. 4 is on the left eye lid and its dimensions are 11/2' x l/8' x 1/2 ' and injury No. 25 was on the left side of the chest at the level of 7th rib on enterior axillary of the size 1' x 3/4' x muscle deep. Thus, these injuries were caused by the blunt object. Looking to the nature and dimensions of these injuries and the part of the body, it cannot be said that these injuries were sufficient in the ordinary course of nature to cause death. The assailant of these injuries must necessarily be armed with salang, which was got recovered by the accused Malsingh. So far as the rest of the injuries are concerned, they are in the nature of incised wounds. Out of these 23 injuries, injuries Nos. 1, 2. 8, 13, 15, 16, 19, 20, 21. and 22 are grievous injuries whereby fractures have been caused. There was fracture of frontal parietal bone and brain matter was visible. There was a fracture of left mandible bone on the left side of the face. There was fracture of right 6th rib, amputation of forearm at the level of wrist, amputation of the right little and ring finger, fracture of right radius and ulna, fracture of the right humerous bone on the middle of outer aspect of right arm and inner aspect of right arm. The assailant of these injuries was one, who was armed with gandasi, which has been got recovered by the accused Bharatsingh. On perusal of the information given by both the accused, it would appear that it is they, who concealed their respective weapons at the places stated by them. From the information memos. and the consequential recovery memos, it can reasonably and safely be inferred that the accused Bharatsingh was armed with gandasi and Malsingh was armed with salang and they inflicted blows with these respective weapons. Therefore, we have no hesitation in holding that the incised wounds were caused on the person of the deceased by Bharatsingh accused and blunt weapon injuries were caused by Malsingh accused. As per the medical evidence, and as per the description of injury No. 1, we are of the opinion that inj,ury No. 1 alone, was sufficient in the ordinary course of nature to cause death. We are also of the opinion that independent of injury No. 1, the other incised wounds cumulatively were sufficient in the ordinary course of nature to cause death. Thus, in our opinion, the appellant Bharatsjngh could be convicted and has been rightly convicted of the offence under Section 302, IPC simpliciter, but so far as the accused Malsingh is concerned, we are of the opinion that his conviction under Section 302, IPC simpliciter is unsustainable as the lacerated wounds were not sufficient in the ordinary course of nature to cause death.
30. The question arises whether the appellant Malsingh can be convicted under Section 302, IPC with the aid of Section 34, IPC, even when his acquittal has been recorded under Section 302/34. No direct case has been cited by any of the parties, where it is decided that the appellate court despite acquittal under Section 302/34, IPC can convict the accused persons under Section 302 IPC with the aid of Section 34, IPC. The question will arise only when it is found that there' was a common intention on the part of the accused persons to cause the death of the victim. If. there is no such common intention then only that person can be convicted of a graver offence, who had actually committed that offence and with the aid of Section 34, IPC, the assailant can be convicted only for that offence, which was commonly intended by all. So far as the present case is concerned undisputably and unquestionably, it can be said that there was a common intention to cause death of Surjeet Singh. The criminal design of Malsingh is apparent as it was he, who had brought the deceased practising deception. The offence of murder was committed in his presence at the house in which he actually participated. Both the accused persons left the house bolting the door of the house from inside and both were seen running and both of them made confession before Chanan Singh. From these circumstances, the inference is obvious and clear that both the accused persons had a common intention to kill. Thus, it was a fit case for the applicability of Section 34 I.P.C. The State has not preferred any appeal against the acquittal under Section 302/34. IPC. In such a situation, the question arises whether the appellant -Malsiash can be convicted of the offence under Section 302/34. IPC. by this Court, 'when he has been convicted by the trial Court under Section 302, IPC.
31. In this connection, we may State that Section 34. IPC, is only a rule of evidence and does not create a substantive offence. It means, that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done individually. (See B. N. Srikantiah v. State of Mysore 0044/1958 : 1958CriLJ1251 . Even where the trial Court does not frame any charge under Section 34. I.P.C. still the trial Court can convict the accused persons of the main offence with the aid of Section 34. IPC,. Reference may be made to B. N. Sri-kantiah's case (supra). And further in Garib Singh v. State of Punjab : 1972CriLJ1286 , after consideration of the facts, it was concluded that this was not a case in which Section 34, IPC for which there was not even the charge framed against the appellants, could be applied so unhesitatingly as the High Court had done. But, it was observed that 'it would have been possible to apply it even though no charge was framed for it if the evidence establishing it had been clear and free from doubt.'
32. In the present case, the trial Court without recording any finding under Section 34, IPC, simply acquitted the appellants of the charge under Section 302/34, IPC and the learned Sessions Judge also did not consider as to how both the appellants have been found guilty of the offence under Section 302. simpliciter. We may also state that when the accused Mai Singh has been convicted of the main offence and if he is convicted now. with the aid to Section 34. IPC, to our mind, no-prejudice can be said to be caused to him as the sentence to be awarded for the simpliciter, charge or for the charge with vicarious liability is the same and it cannot be said that in such a situation, that a finding of acquittal is being converted into a finding of conviction. The finding of conviction of the main offence is already there. What is being found is that instead of finding him guilty of committing the crime himself, it is being found that he is guilty only vicariously. In this view of the matter, in our opinion, the accused Mal-singh can be. convicted of the offence under Section 302/34. IPC, and the above consideration of the matter, failure on the part of the State to prefer an appeal against the acquittal of the charge under Section 302/34, IPC would be of no consequence.
33. In Sohamlal v. State of U.P. 1971 SCC (Cri) 206 : 1971 Cri LJ 1458, Jiwan and Janki were convicted under Section 302/34. IPC. by the Additional Sessions Judge and they were also convicted under Section 324 and 323/34, IPC. The High Court acquitted Jiwan and Janki of the charge under Section 302/24, IPC and instead, convicted them under Section 325/34, IPC. Their conviction and sentences under Sections 324 and 323 were maintained. Sohanlal's conviction under Section 302/34, IPC, was converted into one under Section 302, IPC. simpliciter and Sohanlal's conviction and sentences under Sections 324 and 323/34. IPC, were (maintained. Sohanlai and others filed an appeal by Special Leave, On consideration of the evidence, the Hon'ble ;Supreme Court found that no lathi blow was given by Sohanlal' to the deceased. The lathi blow or blows were given by him to Makhan. It was observed that 'In our view, the evidence of prosecution does not -justify the conviction of the appellant under Section 302. simpliciter. It was further observed that 'the State not having appealed against the acquittal of the co-accused under Section 302 read with Section 34. we cannot consider whether the appellant is guilty under these sections with the result that the appellant will have to be acquitted of the charge of murder and instead will have to be convicted under Section 325 read with Section 34 in that he along with the two other accused attacked with dangerous weapons and injured Makhan and the deceased with the common intention of causing grievous injury'. It may be stated that the co-accused was already acquitted under Section 302/34, IPC and the co-accused were not found guilty of the main offence. So far as the co-accused were concerned, there remained no charge in respect of the main offence. In that situation, when charge under Section 302 simpliciter could not,be sustained with respect to the appellant sohanlai. the Supreme Court observed that with the aid of Section 34. the appellant Sohanlai cannot be found guilty for the offence under Section 302. IPC.
34. In Ashok Kumar v. State of Punjab 1977 SCC (Cri) 177 : 1977 Cri LJ 164. Ashok Kumar and his two sons Kewalkrishan and Dharmpal were charged before the Sessions Judge for the offence of causing intentionally the death of' another Dharmpal deceased, The Sessions Judge convicted Ashok-kumar under Section 302, IPC and Kewal Krishan and Dharampal were convicted under Section 326/34 IPC and also under Section 324, IPC The High Court acquitted Dharampal but confirmed the conviction of Ashok Kumar and Kewal Krishan but Kewal Krishan's sentence was reduced. Both of them preferred a petition for special leave. Ashok Kumar was granted Special Leave but Kewalkrishn's petition was rejected. In para 5 of the judgment, it was observed that according to the Sessions Judge and the High Court, the common intention was to cause grievous hurt to the deceased and it was on this footing, that both the courts convicted Kewal Krishna under Section 326/34, IPC Considering the facts, it was observed that the common intention of the assailants was to cause the death of the deceased and Kewal Krisan could, therefore, have been convicted under Section 302. read with Section 34, I.P.C. It was observed 'but unfortunately the State has not been vigilant in enforcement of the criminal law and regrettably it has not preferred an appeal against the acquittal of Kewal Krisham under Section 302 read with Section 34. with the result that his conviction under Section 326 read with Section 34 must stand. And if that be so, consistency compels us to reach the conclusion that the appellant also must, on the same basis, be convicted under Section 326 read with Section 34 instead of Section 302 read with Section 34'. It would appear that in order to be consistent, Ashok Kumar was only convicted under affection 328/84, IPC. and as regards the offence under Section 302 simpliciter, the matter was considered in para 4. It was found that it is not possible to say that the prosecution has established beyond reasonable doubt that injury No. 3, which was the fatal injury was caused by Ashok Kumar and this possibility cannot be ruled out that it was injury No. 2. which was caused by him and hence, the conviction of Ashok Kumar for the offence under Section 302 cannot be sustained and for the individual injury caused by him, he can be convicted under Section 324, I.P.C. The Supreme Court with the aid of Section 34. convicted the appellant Ashok-kumar under Section 326/34 instead of under Section 302, I.P.C.
35. It may be stated that the conviction under Section 302/34, IPC of Ashok Kumar could not be recorded in view of the fact that the common intention, that was found by the two Courts below was to cause grievous hurt. If this view would have been taken by the Supreme Court that the common intention was to cause the death, it would have given rise to inconsistency, because in case of Kewal-krishan, no such common intention was found and his case had become final as no appeal was preferred. So, the Supreme Court was compelled to take the view in order to be consistent that Ashok Kumar can only be convicted under Section 326/34, IPC.
36. In the present case, both the appellants have been convicted of the charge of Section 302 simpliciter and the only question is that whether the accused Malsingh can be found guilty of the charge vicariously with the aid of Section 34. We feel that he can be so-convicted and this view is possible. However, in the light of the observations of the Supreme Court in the above two cases, we are inclined to convict Malsingh of the offence under Section 326/ 34. IPC and as there is no justification tor conviction under Section 302 simpliciter, his conviction for the charge of murder simpliciter deserves to be set aside.
37. In the result, we find no force in the appeal of Bharatsingh, his appeal is, therefore, dismissed. He is on bail and he shall immediately surrender and the learned Sessions Judge is directed to effect his arrest to serve out the sentence.
38. The appeal of Malsingh is partly allowed, his conviction and sentences under Section 302, IPC are set aside and he is convicted for the offence under Section 326/34, IPC and he is sentenced to 10 years R, I.
39. Before parting with the judgment we would like to impress upon the Trial Judges that in cases, where the accused persons are tried for the offence simpliciter as well as with the aid of any provision of vicarious liability, they should clearly record the findings with regard to the commission of the main offence by each accused and also record a clear finding as to whether the main offence is committed with the aid of any provision of vicarious liability. If any accused person or persons can be held guilty of the main offence and also with the aid of the provision of vicarious liability, then their conviction can be recorded for both and where it is. found that the main offence as such is not proved against the accused and if the conviction can be recorded of the main offence only with the aid of the provision of vicarious liability, then conviction should be recorded of the main offence with the aid of the provision of vicarious liability. It may also be stated that there may be cases where alternative convictions can be recorded i.e. the conviction of the main offence or in the alternative of the main offence with the aid of the provision of vicarious liability. Thus, the trial Judges should be careful, while framing the charges as well as, while recording the findings and convictions in the cases, where the provision of vicarious liability is attracted.