Kishori v. State of M. P. — 1970 DIGILAW 162 (MP)

JUDGMENT P.K. Tare, J. This is an appeal by the accused against his conviction under Section 302, Indian Penal Code as also conviction under Section 379 read with Section 34, Indian Penal Code and the sentence of life imprisonment and rigorous imprisonment for 3 years respectively, passed by the Sessions Judge, East Nimar, Khandwa, in Sessions Trial Nos. 17 and 18 of 1967, dated 4-10-1967, for having committed the murders of Rasulkhan and his son Anwar-khan on 29-5-1967 at about 7 p. m. near the Chandni railway station. It was also alleged that Rs.200 in currency notes from the possession of Rasulkhan were removed and a watch valued at Rs.107 was removed from the possession of the deceased Anwarkhan. The Appellant, along with four other persons, was prosecuted for the alleged offences. The trial Judge acquitted the other four accused, namely, Rupsingh, Sitaram, Komal and Ahmad as there was no evidence against them except the testimony of the three eye-witnesses, namely, Gambhir (P. W. 1), Nathu (P.W. 2) and Babu (P.W. 3). The trial Judge disbelieved the three eyewitnesses, as according to him, there were many infirmities in their evidence. The present Appellant was, however, convicted on the strength of the judicial confession given by him and the discovery of the wrist-watch made by the Appellant in pursuance of information supplied by him. The said wrist watch belonged to the deceased, Anwarkhan. The motive for the offence was said to be enmity between the deceased Rasulkhan on the one hand and Sitaram and Komal on the other hand on account of the fact that Rasulkhan had not paid their wages. The fact that the two victims were murdered at the spot alleged by the prosecution by some persons, was not challenged by the accused during trial, nor was that fact challenged in the appeal in this Court. The only question raised by the learned Counsel for the Appellant were whether the identity of the Appellant as a murderer can be held established on the basis of: (i) discovery by the Appellant of the wrist-watch belonging to the deceased; (ii) judicial confession said to have been made by the Appellant; Similarly, the learned Government Advocate did not dispute the fact that there are many infirmities in the testimony of the eye-witnesses. As such, the trial Judge cannot be said to be in error in having discarded their evidence. As such, the trial Judge cannot be said to be in error in having discarded their evidence. Therefore, we propose to consider the two questions raised by the learned counsel for the Appellant and it is not necessary to advert to the other facts in details. It is sufficient to proceed on the basis that Rasulkhan and his son Anwarkhan were murdered at a place near the Chandni railway station at the relevant time. As regards the alleged discovery said to have been made by the Appellant, he was alleged to have given a memorandum of discovery, Exh. P /12, whereby he offered to discover the wrist-watch, which Anwarkhan used to wear on his wrist, from the Kotha purchased by the Appellant from one Bhag-wati Gaud for keeping his grass. It was recited in the memorandum that the Appellant had hidden the wrist-watch in the wall near the roof in a Sari piece. The said memorandum was prepared by Sub-Inspector, Prakashchandra Middha (P. W. 38) and was attested by Mohammad Yusuf (P. W. 18) and one Shripalsingh, who, it appears, was not examined by the prosecution as a witness. In pursuance of that information, the Appellant was alleged to have taken the Sub-Inspector and the attesting witnesses to his own grass Kotha, wherefrom he discovered the wrist-watch hidden in the well near the roof of his house, which was tied in a Sari piece. It is pertinent to note that the information supplied by the Appellant in the memorandum of discovery fully tallies with the description given in the seizure memorandum, Exh. P/13. The seizure memorandum was prepared by the same Sub-Inspector and was attested by the same attesting witnesses. The learned Counsel for the Appellant was unable to point out any infirmity in the discovery and the seizure of the said wrist-watch from the grass Kotha of the Appellant's house. The only argument advanced by the learned Counsel for the Appellant was that even if the said discovery be held established, there was nothing to show that the deceased, Anwarkhan had put this wrist-watch on his wrist at the time he was murdered. Therefore, the suggestion was that the Appellant cannot be held guilty of the offence of murder and at the most, he might be held guilty of the offence of being a receiver of stolen property. Therefore, the suggestion was that the Appellant cannot be held guilty of the offence of murder and at the most, he might be held guilty of the offence of being a receiver of stolen property. In this connection we might mention that the witnesses have stated that Anwarkhan used to wear the wrist-watch on the wrist and it will be reasonable to infer that the said wrist-watch was on the wrist of the deceased, Anwarkhan at the time he was murdered. Evidently, the Investigating Officer holding the inquest did not find a wrist-watch on the wrist of the dead body. Moreover, the identity of the wrist-watch was fully established by the testimony of Rijhumal (P. W. 12), who had sold it to Anwarkhan sometime back, vide receipt, Exh. P/8. The description in the receipt as also in the memorandum of discovery, Exh. P/12, and the seizure-memorandum, Exh. P/13, tallies. This wrist-watch was put up for a test identification conducted by Shri T.V. Thakre, Naib-Tahsildar (P. W. 25). In the test parade five wrist-watches were kept. Out of them two wrist-watches were of Henery Sandows make, two of Correx and one of Josumar make, Rijhumal (P. W. 12) and Mumtajkhan (P. W. 32) correctly identified the wrist-watch belonging to the deceased. Thus, the said discovery, in our opinion, will be an incriminating factor against the Appellant, which can form the basis of a conviction. The further question will be as to what inference can be drawn under Illustration (a) to Section 114 of the Indian Evidence Act. The offence of murder was committed sometime in the evening or night of 29-5-1967 and the discovery was made by the Appellant on 10-6-1967, i.e. within 11 days of the commission of the offence. In respect of discoveries, which are made after sometime, the Court has always to consider the question of time factor. If the time factor be so large as to raise an inference that the article stolen at the time of murder could have changed hands, in that event the accused ought to be held guilty of being the receiver of the stolen property or of being guilty of removing a thing belonging to a dead person under Section 404, Indian Penal Code. But if the time factor be short and the probability of the article changing hands is excluded, the accused can be held guilty of the offence of murder, if the theft and murder formed part of the same transaction as laid down by their Lordships of the Supreme Court in Wasim Khan v. State of U.P., AIR 1956 SC 400 Ram-kishan Sharma v. State of Bombay AIR 1955 SC 104 . We may advert to the later pronouncement of their Lordships of the Supreme Court in Kanbi Karsan Jadav v. State of Gujrat, AIR 1966 SC 821 wherein their Lordships laid down that "the mere fact that the dead body was pointed out by the prisoner or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder. But the discovery of the silver buttons belonging to the deceased with human blood-stains at the instance of the prisoner would be a circumstance which may raise the presumption of the participation of the prisoner in the murder". In the present case the discovery was of a wrist-watch belonging to the deceased, Anwarkhan, and we think that on the principles laid down by their Lordships of the Supreme Court in the said cases, an inference under Illustration (a) to Section 114 of the Indian Evidence Act can be drawn that the Appellant was the murderer. In the present case the discovery was from a place accessible to the Appellant alone. As the Appellant had purchased the house from one Bhag-wati Gaud for keeping grass and the wrist-watch had been hidden near the roof in the wall, the time factor cannot be said to be so long as to raise an inference about the article changing hands. The murder and theft were part of the same transaction and on the basis of the said discovery, we feel that the Appellant can be held guilty of the offence of murder. Moreover, this is not the only incriminating circumstance against the Appellant. In addition, there is the judicial confession, Exh. P/18, which was recorded by Shri Vimalchand Jain (P. W. 21), Magistrate, 1st Class, on 22-6-1967. All the arguments of the learned Counsel for the Appellant were directed towards demolishing the said judicial confession on various grounds. Presently, we shall deal with those contentions in details. In addition, there is the judicial confession, Exh. P/18, which was recorded by Shri Vimalchand Jain (P. W. 21), Magistrate, 1st Class, on 22-6-1967. All the arguments of the learned Counsel for the Appellant were directed towards demolishing the said judicial confession on various grounds. Presently, we shall deal with those contentions in details. Adverting to the testimony of Head Constable Ramsingh (P. W. 36) and Sub-Inspector, Prakashchandra Middha (P. W. 38), the learned Counsel for the Appellant pointed out that the Appellant had been interrogated on 9-6-1967 and he was formally arrested on 10-6-1967. He was produced before the Magistrate on 12-6-1967 and a remand was taken from the Magistrate for keeping him in police custody. He was kept in police custody till 16-6-1967 on the ground that the investigation had not been completed. On 16-6-1967 the Appellant was produced before the Magistrate, 1st Class, as is clear from the order-sheet of that date recorded in Exh. P/19. The learned Magistrate fixed 20-6-1967 as the date for recording the confession. On 20-6-1967 the Appellant was produced before the Magistrate. But Shri Vimalchand Jain (P. W. 21) was on casual leave and Shri L.J. Mandlik, Magistrate, 1st Class, who was to conduct the Committal Proceedings, therefore, did not think it proper to record his confession. The order-sheet, dated 16-6-1967 recorded by Shri Vimalchand Jain (P. W. 21) shows that the learned Magistrate had directed the Appellant to be committed to jail custody at Khandwa. It is pertinent to note that there is no sub-jail at Burhanpur. It is not clear from the record as to where the Appellant was kept from 16-6-1967 to 20-6-1967, whether in the judicial lock-up at Burhanpur or in the District Jail at Khandwa. Shri L.J. Mandlik on 20-6-1967 directed the Appellant to be produced before Shri Vimalchand Jain on 22-6-1967. Accordingly the Appellant was produced before Shri Vimalchand Jain on 22-6-1967 at 1 pm. The order-sheet recites that the Appellant was produced from jail custody. With regard to this the learned Counsel for the Appellant with reference to the testimony of Vimalchand Jain (P. W. 21) pointed out that this was evidently incorrect. It is to be noted that the learned Magistrate by order dated 16-6-1967 had directed the accused to be committed to jail custody. With regard to this the learned Counsel for the Appellant with reference to the testimony of Vimalchand Jain (P. W. 21) pointed out that this was evidently incorrect. It is to be noted that the learned Magistrate by order dated 16-6-1967 had directed the accused to be committed to jail custody. Therefore, it might be under the impression that Shri Vimalchand Jain (P. W. 21) recorded in the order-sheet dated 22-6-1967, that the accused had been produced from jail custody. It appears that in all probability the Appellant had been sent to Khandwa Jail on 16-6-1967 and he must have been produced before Shri L.J. Mandlik on 20-6-1967 from the jail custody. It was on that date that Shri Mandlik directed the Appellant to be committed to judicial custody. This fact Shri Vimalchand Jain probably did not note and the mistake might have been committed under that impression. The learned Counsel for the Appellant vehemently argued that Shri Vimalchand Jain (P. W. 21) stated a falsehood. We do not find anything of the kind. There is nothing to indicate that the Appellant was in judicial custody from 16-6-1967 to 20-6-1967. The Appellant was undoubtedly in judicial custody from 20-6-1967 to 22-6-1967. On the basis of this, the learned Counsel for the Appellant firstly urged that there was an opportunity to the investigating agency to influence the Appellant. We may observe that there is a world of difference in police custody and a judicial custody. The lock-up is located in the court-compound at Burhanpur and is in the charge of a Magistrate. It is not a police lock-up. It may be that the lock-up may be manned by policemen and not by jail guards, but that will make no difference. It is not possible to accept the contention of the learned Counsel for the Appellant that a judicial lock-up should be equated with a police lock-up. If that argument of the learned Counsel were to be accepted, it will be destructive of the very institution of a judicial lockup. We would reject that contention of the learned Counsel for the Appellant with the observation that a judicial lock-up cannot be allowed to be equated with a police lock-up. There is no substance in the contention that the police had any opportunity of influencing the Appellant. We would reject that contention of the learned Counsel for the Appellant with the observation that a judicial lock-up cannot be allowed to be equated with a police lock-up. There is no substance in the contention that the police had any opportunity of influencing the Appellant. Evidently, Shri L.J. Mandlik himself was unable to record the judicial confession and it was not practicable to send the accused to jail custody at Khandwa as the confession was to be recorded on 22-6-1967. Therefore, the action of Shri L.J. Mandlik in remanding the Appellant to the judicial custody cannot be challenged as mala fide. The probability of the investigating agency either threatening or influencing the Appellant would altogether be excluded on account of the fact that the Appellant was committed to judicial custody and not to police custody. Referring to the proceedings of recording the confession on 22-6-1967, the learned Counsel for the Appellant urged that the accused had not been given sufficient time for reflection. He pointed out that as laid down by their Lordships of the Supreme Court in Sarwan Singh v. State of Punjab, AIR 1957 SC 637 at least one day should have been given to the Appellant for reflection. In this connection we may observe that the time given was more than sufficient. The Appellant was removed from the police custody on 16-6-1967. On that day the prosecution filed an application for recording a judicial confession. Shri Vimalchand Jain (P. W. 21) directed the Appellant to be removed from any outside influence and ordered him to be committed to jail custody at Khandwa. Even if it were to be assumed that the Appellant was not sent to the District Jail, Khandwa, but was kept in the judicial custody, in the judicial lock-up at Burhanpur, that will not be fatal to the prosecution case. In that event, it might, at the most, be probable that the Appellant might have been in judicial custody from 16-6-1967 to 22-6-1967. Therefore, the fact as to where the Appellant was lodged from 16-6-1967 to 20-6-1967 will be wholly immaterial. Evidently, Shri Vimalchand Jain (P. W. 21) could not have any personal knowledge about that aspect and the Head Constable Ramsingh (P. W. 36) and Sub-Inspector Prakashchandra Middha (P. W. 38) were only partly cross-examined on that aspect. Therefore, the fact as to where the Appellant was lodged from 16-6-1967 to 20-6-1967 will be wholly immaterial. Evidently, Shri Vimalchand Jain (P. W. 21) could not have any personal knowledge about that aspect and the Head Constable Ramsingh (P. W. 36) and Sub-Inspector Prakashchandra Middha (P. W. 38) were only partly cross-examined on that aspect. In cross-examination the Head Constable, Ramsingh (P. W. 36) stated that he had taken the Appellant to a Magistrate for the purpose of recording confession The Sub-Inspector was also with him. On that date the Magistrate did not record the confession. Thereafter the witness lodged the Appellant in the judicial lock-up at Burhanpur. The witness did not know as to where the Appellant was lodged thereafter. Sub-Inspector Prakashchandra Middha (P. W. 38) in his cross-examination stated that the Appellant on 15-6-1967, at Burhanpur (while in police custody) expressed a desire to get his confession recorded. He had also stated that till 16-6-1967 the investigation had been completed, as three other accused, namely, Ahmad, Komal and Sitaram were yet to be arrested. They were arrested on the later part of the day and seizures were also effected then. The learned Counsel for the Appellant urged that there was no justification for the Investigating Officer to have kept the Appellant in police custody from 12-6-1967 to 16-6-1967. Therefore, the suggestion was that it must have been for the purpose of exercising undue influence on the Appellant or to threaten him into making a confession. We do not find anything objectionable in the action of the Investigating Officer in keeping the Appellant in police custody from 12-6-1967 to 16-6-1967. Evidently, as the investigation had not been completed, the Investigating Officer was entitled to request the Magistrate to allow the Appellant to be kept in police custody till the end of the investigation. The fact that the Appellant might have made the discovery on 10-6-1967, will not be very material. The suggestion of the learned Counsel for the Appellant was that no sooner the Appellant made the discovery on 19-6-1967, the investigation should be held to have been completed as against the Appellant and thereafter the Appellant should have been remanded to jail custody. Thus, the learned Counsel wants to divide the investigation in two compartments so as to suit his line of argument. Thus, the learned Counsel wants to divide the investigation in two compartments so as to suit his line of argument. We may observe that the investigation cannot be divided into different compartments, but it has to be treated as a whole. Therefore, we would reject the suggestion of the learned Counsel for the Appellant that the Appellant was kept in police custody from 12-6-1967 to 16-6-1967 for some ulterior purpose. On the other hand, we hold that the Investigating Officer was justified in keeping the Appellant in police custody till the completion of the investigation. The investigation was completed on 16-6-1967 and the Investigating Officer made an application to the Magistrate on that very date. Thereafter the Appellant remained in jail custody or in judicial custody till the date of recording the confession. As regards the time for reflection, the Appellant having been committed to jail custody or judicial custody till 22-6-1967 and as such, he having been removed from any influence of the investigating agency, he had ample time for reflection. It is not that time for reflection should be given after the accused is actually produced before the Magistrate for recording of confession. Even if such time were necessary, the Appellant was produced before the Magistrate on 20-6-1967 and thereafter he had two days clear time for reflection. Thus, we would reject the contention of the learned Counsel for the Appellant that the confession cannot be treated to be voluntary In our opinion, the Appellant having been in jail custody or judicial custody from 16-6-1967 to 22-6-1967 the confession was voluntary as the Appellant had ample time for reflection. It was further pointed out by the learned Counsel for the Appellant that the Appellant was produced before Shri Vimalchand Jain (P. W. 21) at 1 p. m. The Magistrate asked the police guard to leave and made the Appellant to sit in his own chamber from 1 p. m. to 4 p. m. During that time the Appellant was under the watch of a court-peon. This will indicate that the Magistrate had taken all necessary precautions to remove all police influence and the Magistrate satisfied himself that the Appellant was making the confession voluntarily uninfluenced by any other factor. This will indicate that the Magistrate had taken all necessary precautions to remove all police influence and the Magistrate satisfied himself that the Appellant was making the confession voluntarily uninfluenced by any other factor. The learned Counsel for the Appellant invited attention to the pronouncement of their Lordships of the Supreme Court in Nathu v. State of U P, AIR 1956 SC 56 wherein their Lordships laid down as follows: It appears to us that the prolonged custody immediately preceding the making of the confession is sufficient, unless it is properly explained, to stamp Exh P-15, as involuntary. P. W. 33 made no attempt to explain this unusual circumstance. It is true that with reference to this matter, the Appellant made various suggestions in the cross-examination of P. W. 33, such as that he was given 'Bhang' and liquor, of shown pictures, or promised to be made an approver, and they have been rejectedand rightlyas unfounded. But that does not relieve the prosecution from its duty of positively establishing that the confession was voluntary, and for that purpose, it was necessary to prove the circumstances under which this unusual step was taken. There being no such evidence, we are unable to act upon Exh. P-15, as a voluntary confession. It was argued that better evidence was not forthcoming, as the investigation by P. W. 3? was, as already stated, halfhearted, and perfunctory, and no adequate steps were taken to secure evidence before P. W. 33 took up the matter on 18-7-1952. All this is true, and the result is no doubt very unfortunate ; but that does not cure the defect from which Exh. P-15 suffers. It was also argued that both the Courts below had found that Exh. P-15 was voluntary, and that that was a finding with which this Court would not interfere in special appeal. But then, the Courts below have, in coming to that conclusion, failed to note that P. W. 33 had offered no explanation for keeping the Appellant in separate custody from the 7th to 20th August, and that is a matter which the prosecution had to explain, if the confession made on 21-8-1952 was to be accepted as voluntary. In that view, their Lordships rejected the confession. We may observe that in the present case the Appellant was inter-iogated(sic) on 9-6-1967. In that view, their Lordships rejected the confession. We may observe that in the present case the Appellant was inter-iogated(sic) on 9-6-1967. He was formally arrested on 10-6-1967 and was produced before a Magistrate on 12-6-1967. On that date the police took a remand from the Magistrate for the purpose of completing the investigation. We have already indicated earlier that the investigation had not been completed and merely because the Appellant had made the discovery on 10-6-1967, it could not be urged that the Appellant should have been remanded to jail custody immediately. It could not be done as the other accused had not been even arrested and as such, the investigation was incomplete and if the police took a remand from the Magistrate, there was nothing wrong. It was on 16-6-1967 that the Appellant was produced before a Magistrate for recording the confession. As regards the subsequent events, we have already dealt with that point in details earlier. Thus, it cannot be urged on behalf of the Appellant that there were any suspicious circumstances so as to render the confession involuntary. We would reject that suggestion of the learned Counsel for the Appellant. The case of Babu Singh v. State of Punjab, 1964 (1) Cri. LJ 566 will also be distinguishable from the present case, inasmuch as the Magistrate in that case had actively assisted the investigation by signing the recovery memorandum and additionally he had recorded the confession. Their Lordships laid down that there were circumstances which would render the confession vitiated, which could not be acted upon. Moreover, in that case it was not clear as to how much time the accused had been given for reflection. On the other hand, the facts showed that only one hour was given for reflection. In that view, their Lordships held that there was no compliance with the requirements of section 364, Criminal Procedure Code. Moreover, the prosecution had not examined the Reader, who himself had written the confession of the accused. It was under those circumstances that their Lordships laid down that the confession could not be acted upon. In that view, their Lordships held that there was no compliance with the requirements of section 364, Criminal Procedure Code. Moreover, the prosecution had not examined the Reader, who himself had written the confession of the accused. It was under those circumstances that their Lordships laid down that the confession could not be acted upon. In the present case the facts are just the contrary of the facts found in that case It was next urged by the learned Counsel for the Appellant that when the Appellant was produced before Shri Vimalchand Jain on 22-6-1967 at 1 p. m., the learned Magistrate did not give the Appellant sufficient time for reflection. It was suggested by the learned Counsel that at least 24 hours should have been given for reflection, which would be considered to be the sufficient time, as laid down by their Lordships of the Supreme Court in Sarwan Singh v. State of Punjab AIR 1957 SC 637 . We may observe that the Appellant had been given ample time to ruminate and for reflection right from 16-6-1967 to 22-6-1967 and it was by way of an extraordinary precaution that the learned Magistrate further gave the Appellant three hours' time to think further. The time given to the Appellant can thus not be said to be inadequate. There is no substance in the grievance that the Appellant was not given sufficient time for reflection whether he should make a confession or not. In fact he was remanded to jail custody or judicial custody on 16-6-1967 and the confession was actually recorded by Shri Vimalchand Jain on 22-6-1967. The learned Counsel for the Respondent invited our attention to the pronouncement of their Lordships of the Supreme Court in Ram Prakash v. The State of Punjab AIR 1959 SC 1 and urged that if the confession be held to be voluntary, the same can be acted upon and on the basis of that, the guilt of the accused can be held to have been established, if the confession is coupled with the recovery of articles of the deceased at the instance of the accused. We may observe that on the basis of the principles laid down by their Lordships of the Supreme Court in the said case, the Appellant's guilt can be said to have been established. We may observe that on the basis of the principles laid down by their Lordships of the Supreme Court in the said case, the Appellant's guilt can be said to have been established. As regards the voluntariness of the confession, we have already indicated earlier that there would be a world of difference between the judicial custody and police custody. The two cannot be equated. It is immaterial whether it would be the custody in jail or custody in a lock-up under a judicial control. The necessary thing would be to remove all police influence. In this connection we may advert to the pronouncement of their Lordships of the Supreme Court in Abdul Razak Muriaza Dafadar v. State of Maharashtra 1970 MPLJ 931 : AIR 1970 SC 283 . In that case the accused was kept in remand for about a fortnight after his arrest. Thereafter he was kept in jail custody for three days and then on fourth day, he was produced before the Executive Magistrate for recording confession. The Magistrate made the preliminary questioning of the accused, gave him a warning and sent him back to jail. On the next day the accused was produced before the Magistrate and the confession was recorded. During the trial, the accused merely denied that he made any confession. It was never his plea that the confession had been vitiated by inducement or coercion on the part of the police. Under those circumstances, their Lordships laid down that the confession would be voluntary and the mere fact that on earlier occasion, the accused may have been in prolonged police custody, will not vitiate the confession or will not destroy its voluntariness. Coming to the actual contents of the confession, Exh. P-18, the Appellant therein admitted that on the relevant Sunday he was going to market. He had purchased a ticket. On his way back, he met Sitaram and Komal (the other acquitted accused) at the Chandni railway station who told the Appellant that Rasulkhan had not paid him wages for 10 days. Sitaram asked the Appellant to come in the evening. The Appellant stated that he was going to Bagmar (a small railway station on the Burhanpur-Khandwa railway line). Therefore, Sitaram asked him to come on Monday evening. The Appellant went to Bagmar on Sunday itself and returned on Monday morning. Sitaram asked the Appellant to come in the evening. The Appellant stated that he was going to Bagmar (a small railway station on the Burhanpur-Khandwa railway line). Therefore, Sitaram asked him to come on Monday evening. The Appellant went to Bagmar on Sunday itself and returned on Monday morning. In the evening time Sitaram and Komal called him to Chandni railway station. Sitaram and Komal told the Appellant that as Rasulkhan was not paying him the arrears of wages, they had to settle the score with him. Then three of them went together. Komal demanded the arrears of wages. Rasulkhan stated that he will pay the wages after the leaves (i.e. Tendu leaves) are sold. Thereupon a quarrel ensued. The Appellant struck Rasulkhan with an iron rod which struck Rasulkhan on the cheek. Thereafter Komal hit Rasulkhan with the iron rod ; as a result of which, Rasulkhan died. The Appellant dealt a blow with an iron rod on Anwarkhan. Subsequently, Kornal also struck him with the iron rod. As a result, Anwarkhan also died. The Appellant and the other two accused removed the dead bodies beyond the railway line. The Appellant kept the wrist-watch with him and Sitaram and Komal removed Rs. 150 from the dead body. The Appellant had handed over the said watch to the police. These were the facts stated by the Appellant in the said confession. On a reference to the autopsy report, Exh. P-26, made by Dr. Jai-narayan Ramidhami (P. W. 29), it is to be noted that Rasulkhan had an injury on the cheek. Similarly, on a reference to the autopsy report, Exh. P /24, made by the same doctor, it is to be noted that Anwarkhan also had injuries on the head as also on the chest. As such, the medical evidence corroborates the confession, Exh. P/18, with respect to the injuries caused by the Appellant on the deceased Rasulkhan and Anwarkhan. As regards the fact of removal of the wrist-watch, that part of the confession is corroborated by the discovery made by the Appellant, as per the discovery memorandum, Exh. P/12, and the seizure-memorandum, Exh P/13. The other fact that the dead bodies were removed beyond the railway line is further corroborated by the report, Exh. P/1, made by the mate of the Gangmen, Prahlad (P. W. 34) to the Station Master. P/12, and the seizure-memorandum, Exh P/13. The other fact that the dead bodies were removed beyond the railway line is further corroborated by the report, Exh. P/1, made by the mate of the Gangmen, Prahlad (P. W. 34) to the Station Master. Similarly, the iron rod was found near the railway line, as is clear from the inquest reports, Exhs. P/28 and P/29, prepared by the Head Constable, Ramsingh (P. W. 36), which was seized from the spot, as per the seizure-memorandum, Exh. P/34. The said seizure-memorandum is proved by Head Constable, Ramsingh (P. W. 36) and Prahlad (P. W. 34). It appears that the other attesting witness Sitaram was not examined as a witness. The Chemical Examiner as per the report, Exh. P/50, found blood stains on the iron rod and the Serologist as per the report, Exh. P/49, confirmed it to be of human origin. As such, there is further corroboration of the confession to the effect that the iron rod, which the Appellant had used for striking the deceased Rasulkhan and Anwarkhan was stained with human blood. Thus, we find that the confession is fully corroborated on all material particulars from the other material on record and as such, we feel that the confession was not only voluntary, but also true on all material particulars and the same can form the basis of a conviction, as laid down by their Lordships of the Supreme Court in Hemraj Devilal v. The State of Ajmer AIR 1954 SC 462 . As a result of the discussion aforesaid, we are fully convinced that the trial Judge acted rightly in holding the Appellant's guilt to have been fully established beyond any shade of doubt on the basis of the discovery of an incriminating article belonging to the deceased connected with the commission of the crime and the judicial confession Exh. P/18, made by the Appellant before a Magistrate. There was no such material against the other four accused and it was for that reason that the trial Judge acquitted the other accused. But the Appellant's conviction, in our opinion, cannot be challenged on any ground, whatsoever and undoubtedly, he was guilty of an offence of murder with the common intention along with the other persons whose identity, however, has not been established. But undoubtedly, the Appellant was one of the murderers. But the Appellant's conviction, in our opinion, cannot be challenged on any ground, whatsoever and undoubtedly, he was guilty of an offence of murder with the common intention along with the other persons whose identity, however, has not been established. But undoubtedly, the Appellant was one of the murderers. Therefore, we uphold his conviction under Section 302 read with Section 34, Indian Penal Code. Evidently, the Appellant alone could not have murdered two persons with an iron rod and necessarily he must have had more companions to assist him. Under such circumstances, the common intention would be fully established. However, as regards the offence under Section 379, read with section 34, Indian Penal Code, there is nothing in the confession or the other material to indicate that the Appellant had removed the wrist-watch from the wrist of the deceased, Anwarkhan, while the latter was alive. If that had been established, the Appellant's conviction could have been under Section 379, read with Section 34, Indian Penal Code. But as that material is lacking, the Appellant can only be convicted under Section 404 read with Section 34, Indian Penal Code. Therefore, we set aside the Appellant's conviction under section 379 read with Section 34, Indian Penal Code and instead we find him guilty under Section 404 read with Section 34, Indian Penal Code and sentence him to rigorous imprisonment for one year for that offence. The said sentence will run concurrently along with the sentence of life imprisonment awarded for the offence of murder. Subject to the aforesaid modification about alteration of the conviction and sentence for removal of the wrist-watch, we uphold the Appellant's conviction for the offence of murder as also the sentence of life imprisonment passed by the trial Judge. Therefore, this appeal substantially fails and is accordingly dismissed subject to the alteration of the conviction and sentence for the offence of removing the wrist-watch.