R.L. Gupta, J.
1. Baldeo Singh and Sukhdeo Singh, accused have been convicted for the offence under Section 302 IPC and have been sentenced to death by the learned Additional Sessions Judge, Hanumangarh, by his judgment dated 8-9-1976 for the murder of their brothers Gurdeo Singh and Hardeo Singh. The learned Additional Sessions Judge, Hanumangarh, has made a reference to this Court for confirmation of the death sentence, which has been registered as D.B. Criminal Murder Reference No. 1 of 1976. Aggrieved by their conviction and sentence the appellants preferred appeal through jail which has been registered as D.B. Criminal (jail) appeal No. 739 of 1976) and also represented appeal which has been registered as D.B. Criminal Appeal No. 788 of 1976. As the above mentioned Reference and the two appeals arise out of the single judgment of the learned Additional Sessions Judge, we propose to decide all of them by this common judgment.
2. The deceased and the accused are real brothers. After the death of their father, there arose some dispute between the accused Baldeo Singh and Sukhdeo Singh on the one hand and the deceased Gurdeo Singh and Hardeo Singh on the other regarding some portion of the agricultural land. It is alleged that it is on account of this enmity that accused persons committed the murder of their two brothers. On 25-6-1975 Gurdeo Singh and Hardeo Singh went to their fields. Thereafter, the accused Baldeo Singh and Sukhdeo Singh, with Kasias in their hands, went there and cawed injuries on the persons of the decased with the result that both Gurdeo Singh and Hardeo Singh died on the spot. Another Gurdeo Singh (PW4) and Kalia (PW5) are said to be the eye-witnesses of the occurrence. Gurdeo Singh (PW4) came to village Santpura and related the incident to Sher Singh (PW1), who went to the scene of occurrence. He found Gurdeo Singh lying dead in Kila No. 2 Hardeo Singh in Kila No. 9. Thereafter, he went to the police station, Sangaria, where he lodged the First Information Report Ex. P/l. After investigation the police challaned the accused for the offence under Section 302, IPC in the court of the Judicial Magistrate, Hanumangarh, who committed them to stand their trial to the court of Additional Sessions Judge, Hanumangarh.
3. The prosecution, in support of its case, examined nine witnesses and exhibited documents Ex. P/1 to Ex. P/45. The accused denied the charge. There were certain injuries on the persons of the accused. For these injuries their explanation is that they were taking the disks rfd;k on the cart from their fields fir repairs. On the way the bullocks startled with the result that the accused fell on the disks and got the said injuries.
4. We have heard the learned Counsel for the accused and the learned Public Prosecutor for the State and perused the record of the case. The autopsy of the body of the deceased Gurdeo Singh was performed by Dr. S.N. Saini (PW6) on 25-6-75. He found the following external injuries on the person of deceased Gurdeo Singh:
1. Incised wound 2.2' x 11/2' x bone deep on right-maxillary region.
2. Lacerated wound 11/2' x 11/2' on frontal region-centrally placed, bone visible in the depth of wound.
3. Incised wound 11/2' x 11/2 x bone deep on right parietal regioB horizontally placed.
4. Incised wound 1' x 1/4' x mumclo deep on face anterior to right ear.
5. Incised wound 11/2' x 11/4' x bone deep on right mastoid region.
6. Incised wound 11/2' x 11/2' x scalp deep on fore-head above injury No. 2.
7. Lacerated wound 11/4' x 1' x muscle deep on route of penis inferiorly.
8. Lacerated wound 1' x 11/2 x skin deep near route of penis info riorly.
On opening the dead body the doctor noticed that injuries numbers 1, 2, 3, and 6 mentioned under external injuries, show fractures on cleaning and dissection, there was no other fracture. Brain and meninges were torn and blood was present on brain under injuries numbers 2, 3, and 6, right maxills was fractured.
5. In the opinion of the doctor death was due to shock and stoppage of vital functions due to injuries on head and brain caused by sharp and blunt weapons. All the injuries mentioned above were ante-mortem in nature and injuries Nos. 2, 3, and 6 could have caused death in ordinary course of nature. Ex. P/32 is the post-mortem report of Gurdeo Singh, which is in his hand and bears his signatures. The injuries Nos. 2, 3 and 6 could have caused instanteous death.
6. On the same day he also performed the autopsy of the dead body of Hardeo Singh and found the following external injuries on his person:
1. Lacerated wound 11/4' x 1/2' x bone deep on left parieto occipital region.
2. Incised wound 1 3/4' x 1/2' x bone deep on right pariatal region on posterior part, horizontally placed.
3. Incised wound 2' x 1/4' x bone deep on right parieto occipital region at 90 degrees angle to injury No. 2 posteriorly.
4. Incised wound 1/2' x 1/4' x bone deep on right mastoid region.
5. X shaped indentations on left scapular region 4' x O. 2' each caused by sharp weapon.
6. One indentation 5' x O. 15' on right scapular region caused by sharp weapon.
7. Bruise 3' x 1/2' on right scapular region horizontal.
8. Bruise 2' x 1/4' on right scapular region just above the upper injury horizontally placed.
9. Bruise 10' x 1/2' on right side of chest posteriorly vertically placed.
7. On opening the dead body the doctor noticed that fractures were present under external injuries Nos. 1 to 3. Meninges and brain underneath the injuries were torn. Blood was present over brain. No other fracture was found under any other injury.
8. In the opinion of the doctor death was due to shock and stoppage of vital functions due to injuries on head and brain caused by sharp and blunt weapons. All the injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The injuries could have caused death instantaneously. Ex. F/33 is the post-mortem report of Hardeo Singh which is in his hand and bears his signatures.
9. Sher Singh (PW1) and Tehal Singh (PW2) have deposed that they found the dead body of Gurdeo Singh and Hardeo Singh in Kila No. 2 and 9 respectively. Thus, from the prosecution evidence on record it is fully estabshed that the deaths of Gurdeo Singh and Hardeo Singh were not accidental but homicidal ones.
10. The question for determination is whether it is the accused, who caused the murder of their brothers Gurdeo Singh and Hardeo Singh and whether they are liable for the offence of murder? For this the prosecution relied upon direct as well as circumstantial evidence. For the purpose of the direct evidence on this point Gurdeo Singh PW4 and Kalia PW5 were produced by the prosecution as eye witnesses of the occurrence, but unfortunately these witnesses have turned hostile to the prosecution. The learned Additional Sessions Judge has relied in his judgment on various places of circumstantial evidence relied by the prosecution and taking into consideration both, direct and circumstantial evidence, the learned Additional Sessions Judge has come to the conclusion that it were the accused who caused the murders of Gurdeo Singh and Hardeo Singh. The circumstances relied upon by the learned Additional Sessions Judge are:
1. Lodging of the First Information Report in time.
2. Motive to commit murder.
3. The conduct of the accused before the occurrence.
4. The conduct of the accused Baldeo Singh after the occurrence.
5. Absconding of the accused soon after the occurrence.
6. Injuries on the persons of the accused.
7. Explanation of the accused for the injuries on their persons.
8. The blood stained clothes of the accused and the blood stains of 'C' group on the shirt of the accused Sukhdeo Singh.
9. Recovery of the article of the offence at the instance of the accused.
The learned Additional Sessions Judge has discussed the circumstances in detail.
11. The learned Counsel for the accused has argued that the allege d eye-witnesses Gurdeo Singh PW4 and Kalia PW5 have specifically deposed in the court that they did not see the occurrence and have not said that it were the accused who caused the injuries on the persons of the deceased as a result of which the deceased died. Inspite of this the learned Additional Sessions Judge has pressed into service their statements before the Police. The statement before the police could only be used for the purpose of contradiction and not as a piece of substantive evidence. The learned Additional Sessions Judge, therefore, was in grave error in relying upon this part of the evidence.
12. As regards the lodging of the First Information Report in time and reliance being placed on it, the learned Counsel has contended that the First Information Report is not a substantive piece of evidence, it was, lodged by Sher Singh PW1, who himself was not the eye-witness of the occurrence^ He has mentioned in the First Information Report as to the complicity of tie accused it crime on the basis of the alleged information furnished to him by Gurdeo Singh PW4, The rest information furnished in the First Information Report, which is based on the personal knowledge, does not implicate the accused. Gurdeo Singh has not corroborated the contents of the First Information Report and, therefore, the First Information Report could not have been used as substantive piece of evidence.
13. As regards the alleged conduct of the accused before the Panchayat it was proved by the prosecution that a Panchayat was called a day prior to the occurrence regarding the dispute of the land between the deceased and the accused. The accused attended it but they withdrew from it saying that they would settle the dispute among themselves. Even if it is taken to be true, these words are innocuous and this circumstance cannot, in any way, be said to be an incriminating one. The statement of Pritam Kumar PW. 3, who is the widow of the deceased, is unconvincing. Another conduct of the accused Baldeo Singh relied upon by the prosecution is that he came to the house of Pritam Kaur and asked her about the whereabouts of Gurdeo Singh and Hardeo Singh and when he came to know that they had gone to the field, he went away saying that the matter would be settled in the field. This conduct is innocuous and an inference of the guilt of the accused cannot be deduced. As regards the statement of Pritam Kaur PW3, to the effect that later on at about 8-9 a.m. Baldeo Singh came on a camel with his clothes stained with blood and having a Kasia in his hand and told her that her warriors were lying murdered near Kotha in the field known as Lambi-Thab-Wala, it is contended by Mr. Thanchand that it is most unnatural and unreliable, firstly because she is an interested witness and secondly part of her statement stands contradicted by her statement in the Police, Ex. D/2, wherein she had named Sulhdeb Singh instead of Baldeo Singh and deposed that Sukhdeo Singh had come to her house and spoke about the incident. This glaring contradiction renders her statement unreliable.
14. As regards the recovery of Kasia and its handle (danda) at the instance of the accused persons it has been contended that the alleged recovery is not supported by the Motbir witnesses. It was not safe for the learned Additional Sessions Judge to have relied upon the statement of the police, witness alone. Even if the recovery of these two articles is taken to have been made at the instance of the accused persons, it is difficult to treat them as the weapon of offence as t hey were not proved to be, stained with human blood.
15. As regards the circumstance of absconding of the accused after the occurrence it is contended that the accused were arrested on the same day. Moreover, investigating officer does not say that he made a search about the accused persons and they were not found in the village nor did this circumstance was put to the accused in their statements recorded under Section 313 Cr.P.C. Therefore, it cannot be used against them.
16. As regards the injuries on the person of the accused and their explanation in this regard it has been contended that it has not been proved by the prosecution that they were received during the course of the occurrence and unless this was proved the question of truth or falsity of their explanation does not arise. In any case, the prosecution must stand on its own legs arid cannot derive any benefit from ihe weakness of the defence. It has been proved by the prosecution that the blood of the deceased was of 'C' group and the blood stains found on the shirt of the accused Sdkhdeo Singh were also of 'C' group. As regards this circumstances, the learned Counsel has argued that the accused also had bleeding injuries on his person and blood stains found on his shirt could be of his own blood. In most of the cases brothers have the same group of blood and 'C' group of blood is commonly found in a majority of people. It is found in 47% of the people and, therefore, no adverse inference can be drawn against the accused on this account. Moreover, there was inordinate delay in the dispatch of the seized articles to the Chemical Examiner. This delay of one month has not been explained by the prosecution and, therefore, the evidence furnished by the reports of the Chemical Examiner and the Serologist cannot be pressed into service against the accused. The non-interference with the seals of the seized articles at the various stages when they came to be handled by different persons has not been proved.
17. As regards the motive Mr. Thanchand has argued that the land in dispute between the deceased and the accuse d stood partitioned and there was no dispute about it and, therefore, there was no motive for the accused to commit such a crime. He has, therefore, urged that in the absence of direct evidence, the circumstances relied upon by the leaned Trial Judge are wholly inadequate to prove the guilt of the accused. The learned trial Judge has largely drawn upon inadmissible evidence.
18. The learned Public Prosecutor has supported the judgment of the trial court and has argued that even though, the eye witnesses have turned hostile to the prosecution and the prosecution was left without direct evidence, yet there is sufficient circumstantial evidence, as pointed out by the learned Additional Sessions Judge in his judgment to base the conviction of the accused and the accused have been right convicted. As they have committed cold blooded murder of their brothers, they have also been rightly sentenced to death.
19. He has also contended that the accused received injuries even if, according to the accused it is taken even that it is a case of the right of private defence, then they exceeded their right of private defence.
20. We may first examine and scrutinise the direct evidence produced in this case by the prosecution. PW4 Gurdeo Singh and PW 5 Kalia were produced as eye-witnesses of the occurrence. They have, however, turned hostile to the prosecution. The statement of Gurdeo Singh PW4 before the Court recorded on 14-4-76 is that he went to his field Ave or six months before where his 'seeri' (Kalia) informed him that two persons came first and two came later and they fought each other and went away. Thus the statement of this witness before the court is that he himself saw nothing and that his source of information is his 'seeri' (Kalia PW5) this witness has been declared hostile and has been confronted with his police statement recorded under Section 161 Cr.P.C. His evidence is of no avail to the prosecution. PW5 Kalia, who has been produced as eye-witness of the occurrence has deposed that he was the 'seeri' of Gurdeo Singh PW4. He was in the field. He saw for brothers fighting behind the kotha; they were not visible to him. He neither knew the names of those four brothers nor did he identify them. He did not know the accused present in the court. This witness also has been declared hostile and confronted with his police statement. From his statement recorded before the court it can be said that his statement is also of no avail to the prosecution. The statement recorded in the Police with which he has been confronted cannot be used as a substantive evidence. Under section 162 of the Cr.P.C. the statement recorded during the investigation by the Police officer may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act; and that cannot be used for any oilier persons, save as provided under Section 162 Cr.P.C. and, therefore, such part of statement before the police cannot form the substantive piece of evidence. Thus the prosecution was left without direct evidence.
21. Now we have to examine the circumstantial evidence. The first circumstance relied upon by the learned Additional Sessions Judge, is lodging of the report immediately, wherein the names of the accused persons have been mentioned for the murder of their brothers. It is true that in the First Information Report the accused persons were named but Slier Singh PW1, who lodged the First Information Report, is not an eye witness of the occurrence. That part of the First Information Report containing the names of the accused as the assailants has been based on the, information given to Sher Singh by Gurdeo Singh but Gurdeo Singh PW4 has denied having furnished such information to Sher Singh. Therefore, this part of the First Information Report is also of no help to the prosecution. The First Information Report cannot be used as a substantive or primary evidence of the truth of its contents unless such report is a dying-declaration, it cannot be substituted for evidence given on oath and when there is no other evidence, the facts mentioned in the information alone cannot be relied upon to convict the accused. The First Information Report can be used only to corroborate or contradict the informer under Section 157 and 145 of the Evidence Act. Therefore, the circumstances, under which the First Information Report was promptly lodged does not help the prosecution case.
22. The next circumstance relied upon by the learned Additional Sessions Judge is the motive of the accused for murdering the deceased persons. This motive is said to be the dispute over a piece of agricultural land. To prove this fact the prosecution has examined Tehal Singh PW2 and Darshan Singh PW8 and Pritam Kaur PW3. They have deposed that there was a dispute regarding some piece of agricultural land between the accused on the one hand and the deceased person on the other. The deceased were requesting the accused for settling the dispute and even a Panchayat was called for that purpose. Tehal Singh PW2 is the uncle of the deceased as well as the accused. We do not find any reason to disbelieve the evidence of these prosecution witnesses as to this fact, therefore, we hold that there was some dispute between the accused on the one hand and the deceased on the other, regarding some agricultural land. This matter may, however, supply the motive to the accused for the alleged act but it may be pointed out that the motive alone is not sufficient for holding the accused guilty for the alleged act, If there is another reliable and convincing evidence on the part of the prosecution to prove the guilt of the accused, the motive may further lend support to that evidence, but by itself it cannot be an incriminating circumstance as to base the conviction of the accused.
23. The next circumstance relied upon by the learned Additional Sessions Judge is the conduct of the accused before the occurrence. This conduct is that in the Panchayat the accused withdrew themselves saying that they would settle the matter among themselves. To prove this fact the statement of Tehal Singh PW2 is there. We do not see any reason to disbelieve that part of the evidence of Tehal Singh but the words uttered by the accused that they would settle the matter among them selves are innocuous and are capable of being interpreted to mean that the parties were perhaps anxious to settle the matter bilaterally without the intervention of the Panchayat. It is worthy of note that the deceased did not raise any objection to the aforesaid attitude of the accused persons and retired from the Panchayat without registering their disapproval to the said proposal of the accused. It seems that the learned trial Judge, taking the subsequent occurrence into consideration, inferred from these words that the accused had the intention of settling the matter by force. No such inference can be drawn by the mere utterance of these words before the Panchayat. Thus, this circumstance in itself is not an incriminating circumstance against the accused.
24. The next circumstance regarding the conduct of the accused is as alleged by Pritam Kaur that Baldeo Singh came in the morning and enquired regarding the whereabouts of the accused. She informed that they had gone to the field. Baldeo Singh then said that alright the matter will be settled in the field. These words do not necessarily lead to the inference that the accused persons were determined to settle the matter by resorting to force. This circumstance is also innocuous and in itself is not sufficient to fasten the guilt on the accused persons.
25 The most important circumstance is the alleged conduct of the accused Baldeo Singh in coming to the house of the deceased and informing Pritam Kaur PW3 that her warriors were lying murdered in the field and at that time the clothes of Baldeo Singh were blood stained and he was having a Kasia in his hand. It may be said that this is an important circumstance for incriminating atleast Baldeo Singh accused but unfortunately there happens to be contradiction on this point in the statement of Pritam Kaur PW3 before the court and before the Police. In her statement before the court she has named Baldeo Singh who came to her house and informed her about the incident while in her police statement she had named Sukhdeo Singh to have come to her house and furnished this information. This contradiction is very material. The learned Additional Sessions Judge has tried to reconcile this discrepancy by saying that it may be possible that the Sub-Inspector, who wrote the statement, might have inadvertently written the name of Sukhdeo Singh instead of Baldeo Singh. No such clarification was sought from the S.H.O., who came in the witness box and, therefore, this contradiction remains at its place and it will not be safe to give credence to this part of the statement of Pritam Kaur against either of the accused. Therefore, this circumstance, which was an important one goes away and the prosecution cannot derive any help from it.
26. The next circumstance relied upon by the learned trial Judge is that the accused absconded soon after the occurrence from the village. They were the brothers of the deceased and if they were not guilty they should have reached the place where their brothers were lying dead. From this circumstance, it can be said that there is neither any evidence for absconding nor the prosecution has tried to prove the fact of absconding. The learned trial Judge has made the conjecture that had the accused been innocent they should have reached the place where their brothers were lying dead Besides this, if this circumstance was to be relied upon by the learned trial Judge it was his duty to put this circumstance to the accused in their statements recorded under Section 313 CrPC. This was not done. The accused should have been given chance to explain it. In the absence of this, this fact cannot be used against the accused. It has been observed by the Supreme Court in Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 that:
We have stressed before, the importance of putting to the accused each material fact which is intended to be used against him and of affording him a chance of explaining it, if he can.
The accused were arrested on the same day and there was no absconding. The fact of absconding was not put to the accused in their statements recorded under Section 313 CrPC and they were not given chance to make their explanation, if any. In these circumstances, this circumstance also cannot be used against the accused.
27. The next circumstance relied upon by the learned trial Judge is that there were injuries on the person of the accused and further the explanations of the accused for the injuries on their persons were false. The learned trial Judge, therefore, held that the accused were involved in the crime. As pointed out above the contention of the learned Counsel for the accused, in this respect is that it has not been established by the prosecution that the injuries received by the accused were received in the alleged incident and, therefore, firstly no question of explanation arises and secondly, the explanation given by the accused is not improbable and, therefore, this is no circumstance to prove the guilt of the accused. It is true that the injuries on the persons of the accused were received near about the time the incident took place as is evident from the medical evidence but it has not been established by the prosecution that they were received during the course of incident. There is no prosecution witness to state that the accused received the injuries during the course of incident. It is true that if the prosecution proves that the injuries were received during the course of incident, then the presence of the accused is stamped but the condition for this presumption as to the presence of the accused in she incident, it is necessary to prove that the injuries were received at the spot and during the course of the incident but there is no evidence of the prosecution to this effect. This circumstance and the explanation furnished by the accused, therefore, cannot be pressed into service against the evidence.
28. The next circumstance relied upon by the learned trial Judge is the blood stained clothes of the accused and that the blood stains on the court of the accused Sukhdeo Singh were of 'C' group and the blood of the deceased was also of 'C' group. As already pointed out above the contention of the learned Counsel for the accused in this respect is that 'C' group blood is commonly found in the majority of the people. About 47% people are having blood of 'C group. Besides this possibility cannot be ruled that the blood of she accused can be of 'C' group particularly when the blood of both the deceased was of 'C' group and the accused being their brothers could also have their blood of 'C' group. It was also contended that the accused had also bleeding injuries on their persons and, therefore, it was their own blood on their clothes. It is true that the blood of the accused was not examined to find out as to what group it pertains, the possibility of their blood can also be of 'C' group cannot be ruled out. However, even if this circumstance is taken to be true, this alone is not sufficient to fasten the responsibility on the accused.
29. The last circumstance relied upon by the learned trial Judge is the recovery of Kasia at the instance of the accused Baldeo Singh and the recovery of the handle of Kasia at the instance of Sukhdeo Singh Both the motbirs i.e. PW7 Gurucharan Singh and PW8 Darshan Singh, in whose presence the Kasia and tie handle were recovered have turned hostile to the prosecution and they have denied the recovery in their presence. However, there is the statement of PW9 Prem Nath, the investigating officer, whose statement has been relied upon by the learned trial Judge for holding that the recovery was made. Even if the recovery is taken to be proved, it is of no avail to the prosecution as they were not sent to the Serologist.
30. Thus from the above examination and scrutiny from the various circumstances it can be said that there was a dispute between the accused on the one hand and the deceased on the other regarding a piece of agricultural land. A Panchayat was held to settle this m liter but the accused withdrew from it on the ground that they will settle the matter among themselves Besides this, on the day of occurrence in the morning-Baldeo Singh went to the house of Gurdeo Singh and asked about the whereabouts of the deceased. Pritam Kaur PW3 informed him that they had gone to the field. It is also true that the clothes of the two accused were blood stained and the shirt of the accused Sukhdeo Singh was stained with blood of 'C' group. The recovery of Kasia and the handle of the Kasia at the instance of Baldeo Singh and Sukhdeo Singh respectively, even if taken to he proved, it is no circumstance against the accused as they were not sent to the Serogolist.
31. Thus in these circumstance it cannot be said that the circumstances relied upon by the prosecution are of such nature which may be taken consistent with the guilt of she accused. In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh : 1953CriLJ129 as also in Raghav Prapanna Tripathi and Ors. v. State of Uttar Pradesh : 3SCR239 it has been stressed that in dealing with the circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that contracture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstance should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved In other words, there must be a chair of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused aid it must be such as to show that within all human probability the act must have been done by the accused. The Supreme Court has stressed the warning addressed by Baron Alderson to the jury in Reg. v. Hodge (1838) 2 Lewin 227, where he said:
The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual the more likely was it, considering such matters to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
32. In the present case some of the circumstances by themselves appear innocuous but even if they are taken conjointly, it cannot be said that they are incapable of explanation to any reasonable hypothesis save the guilt of the accused Suspicion however strong cannot take the place of proof.
33. It can be said that, in the present, case the circumstances brought on the record are such which cannot be taken as consistent with the guilt of the accused. The prosecution has not been able to prove the charges against the accused persons beyond reasonable doubt. Under these circumstances accused are entitled to the benefit of doubt.
34. The result is that the appeals of the accused Baldeo Singh and Sukhdeo Singh ate allowed. Their conviction under Section 302 I.P.C. and sentence to death as passed by the learned Additional Sessions Judge are set aside. The murder reference made by the learned Additional Sessions Judge is therefore, rejected. The appellants are in jail. They should be released forthwith, if not required in any other case.