JUDGMENT V.P. Gopalan Nambiyar, J. 1. On the morning of 14th April 1970 (Vishu day) at about 6 a.m. the dead body of one Divakaran Nair, a driver in the Central Reserve Police, was found in the Railway puramboke by the side of the Railway line, near Wadakkancherry Station on the Shoranur-Trichur Railway line. On the first information launched by one Baby (P.W. 2) living near the railway line, investigations started and a case was registered against the five appellants now before us. The charges against them, were that on 13th April 1970 at about 11 p.m. they formed themselves into an unlawful assembly with the common object of committing the murder of the deceased and to cause disappearance of evidence, punishable under section 143; that on the same day, accused 1 to 4 with the intention of committing murder of the deceased beat and fisted him and threw him down in the eastern courtyard of the house of the accused and there by caused his death; that on the same day accused 1 and 2 tied Divakaran Nair's hands and feet, the first accused brought a tin of poison, the second accused opened the mouth of Divakaran Nair, and the first accused poured it in with such intention and under such circumstances, that if they, by that act caused death, they would have been guilty of murder - an offence punishable under section 307 of the I.P.C; that on the same day and at the same time, the accused caused evidence of the said offence to disappear by placing the dead body of Divakaran Nair, near the railway line with the intention of screening themselves from punishment, an offence punishable under section 201 of the I.P.C.; and finally, that on the same day the fifth accused along with others were members of an unlawful assembly in prosecution of the common object of which, namely committing murder of Divakaran Nair, accused 1 to 4 fisted and beat him and threw him down on the eastern courtyard of the first accused's house, the first and second accused tied his hands and feet and 1st accused poured poison into his mouth, accused 2 opened his mouth, and that all the accused are thereby guilty of offences under sections 149, 307 and 302 of the I.P.C. as aforesaid. 2. 2. The learned Sessions Judge found the accused 1 to 4 guilty of murder under section 302 read with section 34, of the Indian Penal Code. He sentenced the first accused to death, subject to confirmation by this Court; and accused 2 to 4 to imprisonment for life. He found them guilty also of the offence under sections 143 and 201 of the I.P.C, but in view of the conviction for the offence of murder he did not impose any separate sentence. He found the fifth accused guilty of the offence under sections 143 and 201 of the I.P.C. and sentenced her to rigorous imprisonment for three months and one year respectively. On the latter count, she was further sentenced to pay a fine of Rs. 250 and in default to undergo rigorous imprisonment for a period of two months, the sentences to run concurrently. Criminal Appeal No. 140 of 1971 has been preferred by all the accused against their conviction and sentence, and the Referred Trial has come on before us for confirmation of the sentence of death, passed against the 1st accused. 3. There is Ext. P-24 plan, prepared by P.W. 21, the Village Assistant of Killannoor Village, which shows the location of the place of the incident (the 1st accused's brothel, run with the assistance of accused 2 to 4 situated a little more than 7 kilometres from Trichur on the Trichur ” Shoranur road), the approach to it, the canal bund along which the body of the deceased is stated to have been carried, one of the houses adjacent to the place of the occurrence, the occupants of which, figure in the course of the evidence, and the place where the dead body was found near the railway line. Reference to the plan is really unnecessary. P.W. 5 is the taxi driver who drove the deceased to the first accused's brothel on 13th July 1970 at 9 p.m. He recognised the deceased by reference to a photograph (Ext. P-3) of the dead body, taken by P.W. 16, who proved Ext P-18 its negative. The deceased was also identified by reference to M.O. 3 by his younger brother P.W. 13. There are other material objects recovered in the case, and to be referred to later, which establish the deceased's visit to the place that night. P-3) of the dead body, taken by P.W. 16, who proved Ext P-18 its negative. The deceased was also identified by reference to M.O. 3 by his younger brother P.W. 13. There are other material objects recovered in the case, and to be referred to later, which establish the deceased's visit to the place that night. The 5th accused, P.W. 4, and possibly even P.W. 6, are among the women inmates of the brothel. P.W. 4 stated that the deceased engaged her for two hours at about 9 p.m. on the night prior to 'Vishu' (Vishu was on 14th April 1970) and the two were together in the southern room of the house. After two hours, accused 1 to 4 forcibly entered the room by removing the door frame and the door (M.O. 6) with an iron rod which she identified as M.O.7. They beat and fisted the deceased, 1st accused poured some medicine in his mouth inside the room, and all of them lifted him and threw him out into the courtyard of the house. M.O.6 was kept in a slanting position against the wall, and it was in that position even when she came out of the room. At this stage she was declared hostile and cross-examined by the Public Prosecutor. She then said that after the deceased was thrown out, accused, 1 to 4 tied up his hands and feet with cloth. They together lifted him, A-5 held his head, and she saw them taking him along the canal bund. She admitted that when questioned by the police she had stated that the act of pouring poison into the mouth of the deceased was done from outside the room, namely the courtyard or eastern compound; and that the poison was brought from inside the room by the first accused in a tin M.O.4. She identified the shirt M.O. 3, which the deceased was wearing when he came in, his bag M.O. 2, and his underwear M.O.8. She stated that when the deceased was beaten he cried out Malayalam (I am killed), and that whence was taken away, M.O. 6, which was kept leaning against the wall had fallen down and she did not remember exactly when it fell. She admitted having deposed in the committal court that when the deceased was thrown out, M.O. 6 was lying in the courtyard. She admitted having deposed in the committal court that when the deceased was thrown out, M.O. 6 was lying in the courtyard. In the Sessions Court she said that when the deceased was thrown out he fell on the loose and soft ground and not on M.O. 6. She identified Exts. P-4 and P-5 as the accounts maintained in the first accused's brothel. 4. We have set out fairly fully the evidence of the witness who was most intimately associated with the deceased shortly prior to his death. It was stressed by counsel for the defence, that on account of her disreputable antecedents as an inmate of a. brothel, no less than on the discrepancies disclosed, her evidence had to be discarded. In regard to an occurrence in a disreputable place we do not think that the testimony of those other than of the type of P.W.4, can be expected. Her evidence leaves us in no doubt that she was out to help the accused. The learned Sessions Judge himself was inclined to scan her evidence with caution, and to accept it only if corroborated by other evidence. In the circumstances, we think he was right, and we shall ourselves follow that path of prudence. 5. We may therefore notice the evidence of the other eyewitnesses. P.W. 3 and one Vasu are two persons who came- to the first accused's brothel about the time when the incident was going on, for purpose of prostitution, and saw the occurrence. Of these, Vasu was not examined in the Sessions Court, but his deposition was marked as Ext. P-25 under section 33 of the Indian Evidence, Act. P.W. 3 who is an Assistant in a grocery shop, deposed that he was residing nearly 1½ furlongs east from the seventh mile-stone (it seems to be kilometres) from Trichur. Along with Vasu, he went to the first accused's brothel on the night of 13th April 1970 at about 11-30 p.m. As they reached the gate they heard a cry Malayalam (do not kill me). They gathered that the cry was from the south of the building, went to the south, and stood behind certain plantain clusters in the compound. They saw Bhargavy (P.W. 6) standing in the courtyard in front of the southern room, holding a lantern similar to M.O. 5. P.W.4, and two other named women, and an unnamed one, were standing near her. They saw Bhargavy (P.W. 6) standing in the courtyard in front of the southern room, holding a lantern similar to M.O. 5. P.W.4, and two other named women, and an unnamed one, were standing near her. The door and the door-frame of the southern room (M.O. 6) were lying outside in the courtyard. They could hear the sound of beating and hitting inside the room. They saw accused 1 to 4" throwing a person whose hands and legs were tied into the courtyard, from inside the southern room. He fell in the courtyard on the wooden door-frame lying in the courtyard. During the rest of his testimony, he gave evidence as to tying the hands and feet of the victim, forcing poison into his mouth, and carrying him away, practically in the same way as P.W. 4. Such inconsistencies as there are in the evidence, will be referred to later, if and when necessary. After the victim was carried away, P.W. 3 and Vasu jumped over a fence into the compound of Krishnan who lived nearby with his wife (P.W. 7) and daughter (P.W. 9). P.W. 3 was confronted with Ext. D-1 (portion of his deposition in the committal court) where he stated that he saw the door-frame falling from, the wall. He maintained that what he said in the Sessions Court was true. He added that the forehead of the victim struck against M.O. 6 when M.O. 6 lay in the courtyard. His attention was called to a portion of his 162 statement (Ext. D-2), where he said that the third and the fourth accused also, with the help of the second, forced open the mouth of the victim to pour in the poison. He had nothing to say. Ext. D-3 is the portion of his 162 statement by which he was sought to be contradicted in regard to certain aspects. 6. Next in order comes Ext. P-25, the deposition in the committal court, of Vasu, who was with P.W. 3 in the first accused's compound at the time of the occurrence. The deposition was admitted under section 33 of the Indian Evidence Act. As the propriety of its being so transferred to the record, has been questioned, we shall first consider the same. P-25, the deposition in the committal court, of Vasu, who was with P.W. 3 in the first accused's compound at the time of the occurrence. The deposition was admitted under section 33 of the Indian Evidence Act. As the propriety of its being so transferred to the record, has been questioned, we shall first consider the same. Section 33 of the Indian Evidence Act is itself clear that, the other conditions in the section being satisfied, there was no controversy that they were not the evidence given by a witness in a former judicial proceeding is relevant, in a subsequent judicial proceeding only " when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or his presence cannot be obtained without an amount of delay and expense, which, under the circumstances of the case, the court considers unreasonable." In Chainchal Singh v. Emperor A.I.R. 1946 P.C. 1 the Judicial Committee of the Privy Council observed: "Where it is desired to have recourse to this section, on the ground that a witness is incapable of giving evidence, that fact must be proved, and preferred strictly. In a civil case, the party can, if he chooses, waive proof but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence." The Judicial Committee in that case was not satisfied that on the only evidence of a police officer, based on his visit thirteen days before trial, that someone told him that the witness was ill, it could be said that the witness was incapable of giving evidence. In Bakshish Singh v. State of Punjab 1958 S.C.A. 891 the Supreme Court had to consider the admissibility of certain prior statements of a witness under the above section. A constable had deposed that he took out the summons to the witness to the place of his previous employment in a hospital and the same was returned with the endorsement that he was no longer in service, and it was not known where he was. The constable also stated that from enquiries made he learnt that the witness's whereabouts are not known. The constable also stated that from enquiries made he learnt that the witness's whereabouts are not known. On this state of the evidence and as no objection was taken by the defence before the Sessions Judge, the Supreme Court observed that although the Sessions Judge might have been well advised to give fuller reasons for making the order transferring the statement, the order of transfer disclosed no infirmity. 7. P.W. 24 the Circle Inspector stated that he made enquiries regarding the whereabouts of Vasu at Virajpet (Coorg) and could not trace him. At this stage, after hearing the objections of the Defence Counsel, in an order recorded in the deposition, Ext. P-25 was transferred to the record. In cross-examination by the defence P.W. 24 admitted that Vasu had accepted summons from court, that a warrant had issued on account of his default to appear, and that the warrant had not returned till the date of his examination (4th March 1971). In re-examination, he proved Ext. P-27, return of summons relating to Vasu, and also the endorsements appearing thereon in the handwriting of a police constable, with which the witness was familiar. Ext. P-27 shows that on summons being taken out to Vasu to his address at Athani near Trichur, by an endorsement dated 25th January 1971 proved by P.W. 24, the summons was returned stating that the witness was in Coorg in a different State. There are two further endorsements in Ext. P-7, both dated 19th February 1971. One of them records that enquiries were made about Vasu in Coorg, but he was not seen directly, and that the summons was served on his father-in-law Narayanan. The other shows that Vasu's father accepted the summons at Athani on 19th February 1971. Turning to the endorsements on the order-sheet, we see that on 1st March 1971 non-bailable warrant was issued to Vasu returnable by 4th March, that On 3rd March, the summons (warrant?) was returned as "not available'' and warrant was issued again. Before the warrant could return, Ext. P-25 was transferred to the record on 4th March when P.W. 24 was examined, and the prosecution evidence closed. Paragraph 16 of the judgment of the Sessions Judge stated that the warrant returned the next day. In the circumstances disclosed, as the endorsements on Ext. Before the warrant could return, Ext. P-25 was transferred to the record on 4th March when P.W. 24 was examined, and the prosecution evidence closed. Paragraph 16 of the judgment of the Sessions Judge stated that the warrant returned the next day. In the circumstances disclosed, as the endorsements on Ext. P-27 had been proved by P.W. 24, we are of the opinion that the transfer of Vasu's deposition in the committal court to the record of the Sessions Court must have been made as the order discloses on the ground that the witness's presence could not have been obtained without delay which in the circumstances, the court considered unreasonable. Ext. P-25 was therefore rightly admitted in evidence. But the order transferring it to the record should have been made only at the end of P.W. 24's examination. It is enough to record that Ext. P-25 corroborated the testimony of P.W. 3 in its broad essentials, if not in its entirety. 8. The next group of witnesses who do not see quite the whole of the incident, are the neighbours, Krishnan, his wife P.W. 7, and his daughter P W. 9. Of these, as Krishnan's depositor in the committal court was transferred and marked as Ext. P-26, and as objection has been raised to it, we shall first consider the same. We find from the order-sheet of the learned Judge on 2nd March, the endorsement: "C.W. 7 Krishnan is given up by the P.P. (Public Prosecutor). For further evidence 3rd March. On 2nd March when this endorsement was made, P.W. 7, the wife of Krishnan had been examined. The witness was treated hostile, and cross-examined by the Public Prosecutor, and by the accused. At the fag end of her deposition, in answer to cross-examination with permission, by the Public Prosecutor, the witness deposed: " My husband is bedridden. He is ill". P.W. 24 the Circle Inspector of Police, examined on 4th March 1971 stated that Krishnan is laid up with paralysis and is not in a position to attend court or give evidence and that his reports are that he was completely paralysed. In cross-examination he stated that he personally does not know his physical condition and had not placed before court any report regarding the condition of Krishnan. In cross-examination he stated that he personally does not know his physical condition and had not placed before court any report regarding the condition of Krishnan. The learned Judge made an endorsement in the deposition that the previous deposition of Krishnan in the committal court is admissible under section 33 and transferred the same to the record as Ext. P-26. It appears to us, that in the circumstances, the learned Judge was right, but should have recorded the order after P.W. 24's examination was complete. We do not overlook the unfairness by which the foundation was laid for reception of the previous deposition by an unsuspecting question sprung on P.W. 7 at the fag end of her deposition on 2nd March 1971 by the Public Prosecutor. Apparently, it was thereafter that he gave up the witness, as noticed in the endorsement in the order-sheet on 2nd March. Two days later, the Circle Inspector built on the foundation cleverly laid in the belated cross-examination, for transferring the previous deposition under section 33. While we say nothing about the conduct of the Public Prosecutor in having brought in the previous deposition in this way, and while we sympathise with the defence counsel who was apparently tripped into allowing the last question put to P.W. 7 to go unchallenged, we should perforce go by the records before us. And whatever may be said about the absence of personal knowledge of P.W. 24 as to the physical condition of Krishnan, or about the non-production of the reports on which his conclusion was based, we note that no attempt was made in cross-examination to shake his statement that the witness was not in a position to give evidence. One question as to whether the witness could speak, might have done valuable service for the defence. This was not put. Instead, the cross-examination assumed that P.W. 24 had reports in his possession, but had only not placed them before the court. The giving up of the witness is not altogether inconsistent with his incapacity to give evidence. In these circumstances we feel that Ext. P-26 was rightly transferred to the record. In Ext. This was not put. Instead, the cross-examination assumed that P.W. 24 had reports in his possession, but had only not placed them before the court. The giving up of the witness is not altogether inconsistent with his incapacity to give evidence. In these circumstances we feel that Ext. P-26 was rightly transferred to the record. In Ext. P-26 Krishnan stated that on the day prior to the occurrence at about 11-30 p.m. himself, his wife and his daughter were on the outside of his house and that they heard a cry from the first accused's brothel, saw a light in the backyard of the house, and a woman holding a lamp. His 162 statement that he saw a person from the southern room being thrown out was put to him and he denied the same. He was treated hostile, and cross-examined by the prosecutor. 9. P.W. 7 was declared hostile, and cross-examined by the Public Prosecutor. She stated that on the night of the occurrence, she had heard cries from the first accused's house. P.W. 9, early in her chief examination denied having seen anything, as she slept at 8 p.m. on the date of the occurrence and woke up only at 6 a.m. the next morning. She was treated hostile, and cross-examined by the Public Prosecutor. Her 162 statement (Ext. P-8) was put to her, and also her deposition in the committal court (Ext. P-9). The Sessions Judge recorded that Ext. P-9 will be treated as substantive evidence. The statements in Ext. P-8 cannot surely go in as substantive evidence, and can only show, at best, that she gave different versions of the incident on different occasions. We are therefore not referring to those statements. In Ext. P-9 she refers to having heard a cry at 11 p.m. from the 1st accused's house. She stated that her husband was not then in the house and that she saw the dead body near the railway line the next morning. Ext. P-9 shows that even before the Magistrate she was declared hostile. Her 162 statement was put to her. She denied having stated to the police as recorded therein. Her statement in Ext. P-9, that she heard the cry from the 1st accused's house at 11 p.m. is, of course, substantive evidence. 10. Next, we may notice the evidence of P.W. 8. Her 162 statement was put to her. She denied having stated to the police as recorded therein. Her statement in Ext. P-9, that she heard the cry from the 1st accused's house at 11 p.m. is, of course, substantive evidence. 10. Next, we may notice the evidence of P.W. 8. He was living in Gramala about one and a half furlongs to the south of the first accused, and knows the first accused. On the night of the occurrence, he went for a film show to Wadakkancherry, nearly five or six miles away from his House, with a theatre within easy reach, at a distance of about a mile from his house. He first stated that he went to the second show, but immediately corrected himself and said he went to the show ending at 9-30 p.m., and walked back to his house. That timing took him to the seventh mile-stone (apparently the distance marked is in kilometres) from Trichur, at about 11-30 p.m., when he heard some hubbub from the canal side and saw a light on the canal bund in front of the first accused's house. Going there, he saw a man being carried by accused 1 to 5. The first accused stated to him that the man had taken poison and was being taken to hospital. He saw injuries on his body. The person was then alive, but weak, and was giving out a feeble sound. In cross-examination he could name the theatre (Alankar) to which he went that night and the film (Naalu Killatikal) that he saw. Although he trekked a long way on account of his particular fondness for this film, he could not name the actors in that film, nor remember the story of the film, nor recall any special reason for his desire to see the same. In cross-examination he said that after seeing "Naalu Killatikal" he went to his sister's house, and did not return home. But in re-examination, after objections from the defence counsel, it was elicited that this was on a night about fifteen days earlier. He would state that he was questioned by the police on two days, on 14th April 1970 and 15th April 1970; the statements were taken from him by the police four or five times, each time stating that the previous statement was not all fight Malayalam (Of course, the investigating officer denied this). He would state that he was questioned by the police on two days, on 14th April 1970 and 15th April 1970; the statements were taken from him by the police four or five times, each time stating that the previous statement was not all fight Malayalam (Of course, the investigating officer denied this). We have set out the evidence of this witnesses fairly fully only to demonstrate that although the Sessions Judge accepted it, we find it difficult to do so, and would prefer to keep the same off the record. 11. Ext. P-1, a confessional statement made by the fifth accused to the Sub Magistrate P.W. 1 admitted her part in the offence, namely holding the deceased by the head, while he was carried away from the accused's brothel along the canal bund, but added that she did it under fear of the others. We are not referring to the other "portions of her confession, as the same can, at best, be only "taken into consideration" against the other accused under section 30 of the Indian Evidence Act. The confession itself was retracted before the Sessions Judge. The learned Judge found it unsafe to accept the same; and we think that the path of prudence lies in agreeing with him. We may notice that P.W. 6, Bhargavi, a Hindu, who claims to be the wife of the 1st accused, a Christian, completely denies the incident, including the part attributed to her, of standing with a lantern in hand at the time. We shall spare ourselves the easy task of discrediting her testimony, or even of exposing her antecedents and status or venturing our view as the learned Judge has done whether she should have been in the dock rather than in the witness box. 12. Analysing the evidence thus marshalled, the deceased's visit to the 1st accused's brothel on 13th April 1970 at about 9 p.m. has been amply proved by the evidence of P.W. 5, P.W. 13 read in the light of M.O. 3 and the evidence of P.W. 16. As to the happenings in the place that night, we see no reason to disbelieve the evidence of P.W. 3, of Vasu (Ext. P-25), P.W. 4, P.W. 7, P.W. 9, Ext. P-9) and of Krishnan (Ext. P-26). P.W. 3 was the solitary eye witness in the Sessions Court who did not turn hostile. As to the happenings in the place that night, we see no reason to disbelieve the evidence of P.W. 3, of Vasu (Ext. P-25), P.W. 4, P.W. 7, P.W. 9, Ext. P-9) and of Krishnan (Ext. P-26). P.W. 3 was the solitary eye witness in the Sessions Court who did not turn hostile. He has spoken to the essential features of the prosecution case. Broadly, and in all essentials, his evidence has been corroborated by the remaining evidence, set out above. The inconsistencies sought to be brought out between his evidence and that of some of the other witnesses, or his own earlier statements, do not seem to us to affect the core of the prosecution story. Thus the witness stated in chief examination that himself and Vasu opened the gate of the 1st accused's house and entered the courtyard. But in cross-examination he admitted that when they reached the place, the front gate was open. The witness would state that only accused 2 to 4 tied the hands of the victim after he fell on the courtyard and that A-1 poured in poison, while A-2 forced the mouth of the victim open. But in Ext. P-25, Vasu would swear that accused 1 to 4 tied the deceased's hands and feet and that when the 1st accused poured the poison, the remaining three held him down. These discrepancies do not appear to us to be material. It was said that the plantain cluster from which P.Ws. 1 and 3 and Vasu watched the occurrence, finds no mention in Ext. P-11, the scene mahazar. We think it had not much of a place in the scene mahazar prepared two days later. No questions were directed in cross-examination that the plantain clusters were creatures of the witness's imagination. It was said that in Ext. D-1, his deposition before the committal courts P.W. 3 had stated that he saw the door-frame falling, whereas in his deposition before the Sessions Court, he said that M.O. 6 was lying in the courtyard when himself and P.W. 3 went there. While confronted with Ext. D-1 he said that he did not remember having deposed as noted in Ext. D-1 in the committal court, and he had nothing to say against the same. While confronted with Ext. D-1 he said that he did not remember having deposed as noted in Ext. D-1 in the committal court, and he had nothing to say against the same. We feel that such discrepancy as has been brought out, might well be from a lapse of memory on his part in not having recalled what he stated in the committal court and related it in point of time to his observation. As this aspect of the matter was stressed before us, we feel it necessary and proper to say this. The observations of the various witnesses and their evidence about M.O. 6 could well be related to the different elements of time at which they happened to see the door being dislodged from its position in situ, to its eventually having come to rest in the courtyard or against the wall. Ext. D-1 and Ext. P-25 state the witnesses having seen M.O. 6 falling. P.W. 3 said that he saw M.O. 6 in the courtyard. P.W. 4 said that when she came out of the room M.O. 6 was kept leaning against the wall, and before the deceased was taken away M.O. 6 had fallen down, she did not exactly remember when. She admitted having deposed in the committal court that when the deceased was thrown out M.O. 6 was in the courtyard; (but of course stated in the Sessions Court that the deceased fell on soft loose earth and not on M.O. 6. Ext. P-11 the scene mahazar prepared by P.W. 22 describes M.O. 6 as leaning against the wall, but this was only on 15th April 1970. No material discrepancies or inconsistencies are disclosed on this account. 13. Comment was made that P.W. 4 was kept in the police station, the night prior to her giving evidence, both in the Magistrate's Court and also before the Sessions Court. This appears from her evidence. All things considered, we are not prepared to discard the evidence of this witness on this account. The witness was disreputable in character. So long as she had not been tutored and made to depose to dictation, we think that it was nothing wrong to have lodged her at the police station previous to her giving evidence We agree with the learned Sessions Judge that it has not been shown that the witness has either been tutored or suborned. 14. So long as she had not been tutored and made to depose to dictation, we think that it was nothing wrong to have lodged her at the police station previous to her giving evidence We agree with the learned Sessions Judge that it has not been shown that the witness has either been tutored or suborned. 14. The evidence of P.Ws. 3, 4, and P.W. 7 and Exts. P-9, P-25 and P-26 (the committal court depositions of P.W. 9, Vasu, and Krishnan), refer to a cry from the first accused's house at or about the time of the occurrence. Some of these state the cry was "do not beat me to death". P.W.7, and her husband Krishnan in Ext. P-26, state that they saw two persons enter their compound after the cries were heard, and pass through their gate. This would lend support to the evidence of P.W. 3 and Vasu that they had jumped the fence of Krishnan's compound shortly after the occurrence and bolted off. This is rendered the more readily acceptable by Ext. P-11, the scene mahazar prepared by the Head Constable P.W. 22 at 3 p.m. on 15th November 1970, which states that the fence in question showed signs of having been broken into Malayalam. The breaking open of the door of the southern room with M.O. 7, the beating of the deceased inside the room, throwing him out into the courtyard on to M.O. 6, tying of his hands and feet, and the forcing in of the poison, have all been satisfactorily covered in the evidence of P.Ws. 3 and 4 and Ext. P-25. The discrepancies in their evidence as to the number of persons who tied the hands and feet, or those who participated in forcing in the poison, are in regard to minor matters of detail, which do not, in the main affect the prosecution story or the liability of the accused. 15. The above evidence receives corroboration from certain recoveries of material objects brought in under section 27 of the Indian Evidence Act. The most important of these is the recovery of M.O. 7 Malayalam (pick-axe) with which M.O. 6 was dislodged. Accused 3 to 5 were arrested on 21st April 1970, the first accused on 22nd April 1970 and the second accused on 30th April 1970. The most important of these is the recovery of M.O. 7 Malayalam (pick-axe) with which M.O. 6 was dislodged. Accused 3 to 5 were arrested on 21st April 1970, the first accused on 22nd April 1970 and the second accused on 30th April 1970. P.W,, 23' stated: "I questioned A-3 and he said that Elangu used to remove M.O. 6 had been thrown in the well A-3 pointed out the well in which he said the Elangu had been thrown ''. Acting on this information P.W. 15, dived into the well shown to the east of the first accused's brothel and recovered M.O. 7. It is unfortunate that the learned Sessions Judge made no attempt to mark that portion of the information conveyed to P.W. 23 by the third accused, which alone would he admissible, under section 27. In the portion we have extracted above, the words, "used to remove M.O. 6" would certainly not be admissible. What would be admissible would only be the discovery of the well where M.O. 7 was thrown. Recovery of M.O. 7 from the well in pursuance of the said information would be evidence of the truth of the statement. M.O. 7 has been identified by the witnesses as having been used to remove M.O. 6. So viewed, the recovery of M.O. 7 is an important piece of evidence which corroborates the prosecution story. 16. So is the recovery of Ext. P-14, the pocket diary of the deceased Divakaran Nair. This again is spoken to by P.W. 23. The relevant portion of his deposition is: "I arrested A-1 at 2 p.m. and questioned him. He stated that he has secreted a pocket diary of deceased Divakaran Nair at a place behind his house. I went to the place along with A-1. A-1 pointed out the place where he had hidden diary and he unearthed the diary and gave it to me. The diary is Ext. P-14 and it was seized as per Mahazar Ext. P-16. " Here again it is regrettable that the learned Sessions Judge made no attempt to mark only so much of such information as related distinctly to the fact thereby discovered. The fact discovered is that a diary is hidden in at certain portion of the first accused's house, and that portion of the above information alone, relating to the discovery, would be admissible under section 27. The fact discovered is that a diary is hidden in at certain portion of the first accused's house, and that portion of the above information alone, relating to the discovery, would be admissible under section 27. The diary was identified as belonging to the deceased, by his brother P.W. 13, who proved also the handwriting of the deceased in it. These two items of evidence afford valuable links in forging the prosecution story. 17. On the evidence thus disclosed, we have little hesitation in holding that it has been proved that accused 1 to 4 beat the deceased on 13th April 1970 at about 11 or 11-30 p.m. and threw him out to the courtyard, that thereafter they (or some of them) tied his hands and feet, and the 1st accused forcibly poured poison into his mouth, the others (or some of them) assisting him. Thereafter, assisted by the fifth accused, they carried the deceased along the canal bund and left his body near the railway line. 18. We may now refer to the medical evidence in this case. P.W. 18 is the Doctor who conducted the postmortem examination. Ext. P-21 is the post-mortem certificate. Ext. P-21 notes that the heart was empty and that the left side of the forehead showed contusion with extravasations of fluid and clotted blood into (in?) the underlying tissues. Left frontal bone showed crack fracture of roof of orbit. The concluding portion of Ext. P-21 is as follows : "Cause of death:” 1. Shock and haemorrhage due to fracture at base of skull. (2) Poisoning. Opinion reserved pending result of chemical examination." P.W. 17, the Chemical Examiner of the Government of Kerala, stated that he examined the items forwarded to him by P.W. 18 for poisoning, and that Ext. P-19 was the certificate which showed the result of this analysis. Endrin, a poisonous chlorinated cyclic hydrocarbon was detected in the viscera and contents taken from the deceased's stomach and in another bottle which was labelled "Liver spleen and kidney" of the deceased. It was also detected on various objects sent to him such as M.O. 2 bag, M.O. 4 tin, etc. Having reserved her opinion as to the cause of death in Ext. P-21, it was very necessary that P.W. 18 should have been asked about it in her chief examination in the Sessions Court in the light of Ext. P-19. It was also detected on various objects sent to him such as M.O. 2 bag, M.O. 4 tin, etc. Having reserved her opinion as to the cause of death in Ext. P-21, it was very necessary that P.W. 18 should have been asked about it in her chief examination in the Sessions Court in the light of Ext. P-19. This was not done, and this was a regrettable omission on the part of the Public Prosecutor and of the Sessions Judge. P.W. 18 in chief examination deposed : "I see Ext. P-19. I have now read it. I see that there is evidence of poisoning in the tissues. Endrin is a poison which if swallowed will cause death. The time required to cause death depends upon the quantity of Endrin consumed. Whether consumption of Endrin will ultimately cause death depends upon the quantity consumed. I cannot now say how such quantity is required to cause death. " We look here in vain for any clear and definite opinion of the doctor as to the cause of death. In cross-examination, the material portion of her evidence reads: "Syncope means death due to stoppage of heart. In syncopial death heart will be empty. Heart will be empty only in syncopial death. I found heart in the dead body in the case, empty. Because of haemorrhage, heart was empty. Poisoning leads to asphyxia which leads to death. " In re-examination we find the following : "In the case of the deceased in this case, death was not syncopial, is it not ? Answer : It is not due to syncope alone. Asphyxia due poisoning might have contributed." We cannot but express surprise that this type of leading question was put in re-examination and tolerated. These lapses from well understood canons of evidence and standard of proof in a criminal case especially on a charge of murder, have caused us great concern. But looking at the evidence of P.W. 18 as a whole, in the light of her post-mortem certificate, we are of the opinion that the deceased came by, his death as a result of syncope. That is how we understand the evidence of P.W. 18. Assuming that poisoning also contributed to death, it makes little difference whether it did so in any great, or only a small, measure. That is how we understand the evidence of P.W. 18. Assuming that poisoning also contributed to death, it makes little difference whether it did so in any great, or only a small, measure. The act of beating and the act of poisoning were so related to each other in time and space as to form parts of the same transaction. From the nature of the invasion of accused 1 to 4 into the southern room, from their concerted and continued attack on the deceased, resulting ultimately in his being flung, into the compound, (we think his head must have dashed on M.O. 6 resulting in the fracture noticed by the doctor) and from the subsequent acts spoken to, we have no doubt that accused 1 to 4 had the intention to cause death. This intention runs throughout the chain of events ultimately resulting in death. In such circumstances the accused are guilty of murder. Were any authority needed for the proposition, we would refer to Kaliappa Goundan's case I.L.R. 57 Madras 158 and to the Privy Council decision in Thabo Meli v. Regina 1954-I-A.E.R. 373. So that, whether on the ground that the accused caused death by beating and throwing, resulting in syncope, or on the ground that these, together with the poisoning as parts of the same transaction resulted in death, accused 1 to 4 cannot escape liability for murder. Common intention to cause death was found by the learned Judge against accused 1 to 4. We have no doubt that he was right in his conclusion. Therefore the fact that at some stage of the chain of events one or more did not participate in the tying of the feet, or in the act of poisoning, does not appear to us to be material. For, from the precedent facts and attendant circumstances we think it is a fit case to invoke the principle that in crimes, as in many other things, "they also serve who only stand and wait." [See I.L.R. 52. Cal. 197 (Privy Council) at 211 Barendra Kumar's case.] 19. Counsel for the accused complained that prejudice had been caused because the charge was only for attempt at murder under section 307 in respect of poisoning, and for murder under section 302, in respect of the beating. Cal. 197 (Privy Council) at 211 Barendra Kumar's case.] 19. Counsel for the accused complained that prejudice had been caused because the charge was only for attempt at murder under section 307 in respect of poisoning, and for murder under section 302, in respect of the beating. In other words, it was complained that there was no charge that the acts of beating and poisoning cumulatively resulted in death, and that thereby the accused were guilty under section 302 I.P.C. In the first place, a criminal charge, unlike a plaint in a civil suit, need not be descriptive, much the less argumentative. See Illustration (e) to section 223 of the Criminal Procedure Code which shows that a charge for murder need not state the manner in which murder was committed. The details and particulars of the charge are dealt with in sections 221 and 222; and these do not enjoin specification of the mode and the manner in which the crime was committed. That apart, the printed record supplied to us, and the original charge in the records in the court, show that the last head of charge for murder under section 302, and for attempt under section 307, caused by both beating and poisoning is dated 1st March 1971. The certified copy of the charge with counsel for appellants also showed this. The trial commenced on 1st March 1971. The charge as well as the particulars thereof were therefore available to the accused before the trial commenced, and no prejudice has been caused or occasioned by additional head of charge framed by the learned Sessions Judge on that date. While this is so, the observations in para 35 of the Sessions Judge's Judgment might give the impression that the idea of framing a new head of charge dawned on him after examination of P.Ws. 17 and 18 (which was on 4th March 1971). This appears to be an unnecessary confusion introduced by the learned Judge, not warranted by the record. The learned Judge's omission to record in the order sheet about the amendment of charge, may also be, because it was done before trial commenced. 20. We agree with the Sessions Judge that section 149 is not attracted as far as the act or acts causing death are concerned. The 5th accused is not seen to have had any part in these acts. 20. We agree with the Sessions Judge that section 149 is not attracted as far as the act or acts causing death are concerned. The 5th accused is not seen to have had any part in these acts. Nor, at any stage can she be said to, have been a member of an unlawful assembly which had as its common object the commission of murder, or knew that murder was likely to be committed in prosecution of the common object. The conviction of accused 1 to 4 for the offence of murder under section 302 read with section 34 was correct. The first accused has been sentenced to death. We can find no extenuating circumstances in his favour. Accused 2 to 4 have been sentenced to rigorous imprisonment for life. As the lesser of the two sentences prescribed, for murder, the same can hardly admit of any interference at our hands. 21. Regarding the offences under sections 143 and 201, the learned Judge clearly found all the five accused guilty of this offence. The offence under section 201 is clearly proved on the evidence of P.Ws. 3 and 4 and Ext. P-25. The finding under section 143 is also justified as the five accused banded themselves together after the victim was thrown, to carry the body away from the scene. Having found these offences proved, the Judge convicted and sentenced the fifth accused to rigorous imprisonment for three months under section 143, and to one year's rigorous imprisonment and a fine of Rs. 250 with two months' rigorous imprisonment on default, under section 201. He found accused 1 to 4 guilty and convicted them also of the offences under sections 143 and 201 I.P.C., but proceeded to observe: "However no separate sentences are imposed on them for these offences." Whatever be the reasons for doing so, we wish to point out to the learned Sessions Judge that his action in having refrained from passing sentences in accordance with law was against the clear mandate of section 309 (2) of the Cr. P.C., according to which, if an accused is convicted, "the Judge shall, unless he proceeds in accordance with the provisions of section 562, pass sentence on him, according to law." It is of course open, in appropriate cases, to direct two or more sentences to run concurrently. But that is a different matter. P.C., according to which, if an accused is convicted, "the Judge shall, unless he proceeds in accordance with the provisions of section 562, pass sentence on him, according to law." It is of course open, in appropriate cases, to direct two or more sentences to run concurrently. But that is a different matter. We find it has become a fashion for Sessions Judges to refrain from passing a separate sentence on one count, in view of a conviction and sentence on another. We cannot encourage this abdication of responsibility and violation of the statutory provisions of the Code. We trust this will not be repeated. 22. We confirm the conviction and sentence of the appellants and dismiss this appeal. The reference by the Sessions Judge is accepted and the sentence to death on the 1st accused is confirmed.