JUDGMENT 1. - Both these appeals, one by the appellants Nanak Nath and Mannath from the jail and the other filed through a counsel are directed against the judgement of the learned Sessions Judge, Bikaner, dated July 22,1970, whereby both these accused persons have been convicted under Section 302 read with 34 of the Indian Penal Code and each of them sentenced to imprisonment for life. 2. On the night intervening between and of August 1969, deceased Mannath was sleeping in his 'chowk' on a cot. Mst. Jadao, who was taken by Mannath as his wife, was also sleeping in the same chowk. Sahi Ram PW 3, brother of deceased Mannath was sleeping in an adjacent 'chowk' of the same 'bakhal'. At about midnight, Sahiram heard a sound which was not very intelligible. He got up and when he looked into the 'chowk' where Man Nath was sleeping, he found Nanak Nath armed with a 'Gandasi' dealing the 'Gandasi' blows on the Mannath, and Mannath standing near the cot of the deceased. Sahiram rushed towards the assailants & asked them not to run away but according to Sahiram, both the accused persons ran away from the place of occurrence by jumping the western fence of that 'chowk' Sahiram also jumped that fence and pursued the assailants up to ten steps and thereafter, he came back. It was a moonlit night and therefore, the assailants were identified by Sahiram, Basti Nath, who was also sleeping in the same 'bankal', also came to help Sahi Ram to pursue the assailants but Sahiram advised him not to proceed any further as the assailants were armed with 'Gandasi' and 'barchhi'. It is said that Mst. Jadao, who was sleeping in the same 'chowk' where Mannath was sleeping, got up and starred weeping Sahiram then called Kashiram and got a report Ex. P.1 scribed by him. Kumbhanath was then asked to take the report to the police station, Taranaga. Kumbhanath went on his camel to Taranagar which was 18 miles away from their village. The report was handed over to the sub Inspector PW 9 next morning at 7 O'clock. A case was registered under Section 302 of the Indian Penal Code. The Sub Inspector proceeded to the place of occurrence with a doctor in a jeep and reached the place at 12.00 in the noon. Dr. The report was handed over to the sub Inspector PW 9 next morning at 7 O'clock. A case was registered under Section 302 of the Indian Penal Code. The Sub Inspector proceeded to the place of occurrence with a doctor in a jeep and reached the place at 12.00 in the noon. Dr. Om Prakash Gupta conducted the post mortem of the dead body of Mannath. He found the following external injuries on the body of the deceased:- 1. Cut wound 31/4" L in to 11/4" W in to 1" depth on the left cheek along the line joining the left ear lobule with the left angle of the mouth. The wound was wider in the middle and tapering near the end. The under lying structures including the mandible bone was cut. The ear lobula was also split. 2. The cut wound 11/2" (L) 1" wide 1/2" deep on the left side neck just below the angle of the mandibul. 3. Cut wound 31/2" (L) 11/2" (W) 1" (D) on the left side of the neck a long the lower border of the jaw cutting the main blood vessels of the left side of the neck and the under lying muscles. 4. The right little finger completely cut nearly proximal part and united with the hand by means of a little portion of the skin only. 3. In this opinion, these injuries were caused by sharp edged weapon and the victim died of haemorrhage and shock as a result of the said injuries and that the injuries could be caused by a weapon like 'Gandasi' Ex.1. 4. The accused persons were arrested by the Sub-Inspector in the afternoon. Nanak Nath gave an information regarding the whereabouts of the 'Gandasi' Ex.1 was discovered from the house of Nanak Nath. It was lying under the bed of Nanak Nath. This 'Gandasi' was sent for chemical examination and also to the Serologist and it was found positive for human blood. "Barchhi' Ex. 2 was also got recovered by Mal Nath but since it was not found to have blood stains, it was not sent for chemical examination. It was lying under the bed of Nanak Nath. This 'Gandasi' was sent for chemical examination and also to the Serologist and it was found positive for human blood. "Barchhi' Ex. 2 was also got recovered by Mal Nath but since it was not found to have blood stains, it was not sent for chemical examination. Both the accused persons were then challaned in the court of Civil Judge and Magistrate first class, Ratangarh who after taking committal proceedings, sent both of them to the court of the Additional Sessions Judge, Churu, to face the trial under Section 302 of the Indian Penal Code. The High Court transferred the case from the file of the Additional Sessions Judge, Churu, to the file of the Sessions Judge, Bikaner. 5. At the trial, the prosecution produced nine witnesses out of whom, PW 3 Sahiram and PW 6 Jadao were examined as eye witnesses. PW 7 Kalu Nath, who has been examined, was the person who had seen both Mal Nath and Manak Nath, armed with 'Gandasi' and 'Pharsi' coming out of their house at midnight and proceeding towards the house of the deceased. 6. The Learned trial Judge, placing reliance on the testimony of Mst. Jadao PW 6 and Sahiram PW 3, which according to him found corroboration from the medical testimony as well as from the recovery of Ex. 1 Gandasi' at the instance of Nanak Nath, found both these appellants guilty of an offence under Section 302 read with Section 34 of the Indian Penal Code and therefore, passed the order of conviction which is under appeal before us. 7. The learned counsel appearing on behalf of the appellant urged that the case of the prosecution is very doubtful as the information report, which was scribed by Kashiram PW 2 was written by him next day at 12.00 in the noon; and therefore, the first information report Ex. P1 cannot be said to have been lodged at time which has been entered therein and could not, therefore, be made, the basis for investigation. He further argued that the statement of Mst. Jadao and Sahiram, if scrutinised in the light of the conduct of the witnesses and that of the accused persons, are not worthy on any credence and therefore, in these circumstances, conviction of the appellants cannot be sustained. 8. He further argued that the statement of Mst. Jadao and Sahiram, if scrutinised in the light of the conduct of the witnesses and that of the accused persons, are not worthy on any credence and therefore, in these circumstances, conviction of the appellants cannot be sustained. 8. We examined the statement of the witnesses in the light of the criticism levelled by the learned counsel for the appellant which we would like to discuss after disposing of the first point namely, that the report Ex. P1 was written after the Sub-Inspector arrived at the scene of occurrence & therefore, the investigation conducted on the basis or that report was a tainted investigation. 9. PW. 2 Kashiram no doubt has stated that the report was written in day time at about 12.00 noon after the arrival of the Sub Inspector at Man Nath's house but this deposition cannot be accepted to be true as he has also stated that he had written a report in the preceding midnight at the instance of Sahiram and that report in the preceding midnight at the instance of Sahiram and that report was taken by Kumbha Nath to the police station. This statement of Kashiram that he had written a report next day of the incident at 12.00 noon does not find support either from Kumbh Nath or from Sahiram. PW 9 Atma Singh S.H.O. has also came in the witness box and has deposed that Ex. P.1 was the report which was presented before him by Kumbh Nath at 7 O'clock in the morning and the first information report was registered on the basis of Ex. P.1. Sahiram PW 3 also states that Ex. P.1 was the report which Kashi Nath had written at his dictation in the midnight and it was sent with Kumbh Nath to the police station Taranagar Kumbh Nath corroborates the testimony of these two witnesses P.W.9 and P.W.3 when he states that he had taken the report to the police station Taranagar sent by Sahiram but he does not identify Ex. P.1 being the same report which was taken by him to the police station. Kumbh Nath is an illiterate man and therefore, he was not in a position to identify it. There is no reason to disbelieve the testimony of Sahiram and Atma Singh regarding the registration of the first information report on the basis of Ex. P.1. P.1 being the same report which was taken by him to the police station. Kumbh Nath is an illiterate man and therefore, he was not in a position to identify it. There is no reason to disbelieve the testimony of Sahiram and Atma Singh regarding the registration of the first information report on the basis of Ex. P.1. In the light of the evidence of Sahiram and Atma Singh, it is difficult for us to accept the statement of Kashi Nath that Ex. P.1 was written by him after the arrival of the Sub Inspector at the house of Man Nath. In our opinion, the solitary statement of Kashiram cannot be taken sufficient to vitiate the investigation, which does not appear to be a correct statement. 10. Mst. Jadao PW 6 is the mother of accused Nanak Nath. Nanak Nath was born from her first husband who died about 15 or 16 years before the incident. After death of her first husband, she was taken in 'Nata' by Mal Nath accused but it is in the evidence that both Mal Nath and Nanak Nath gave beating to this lady and turned her out of the house of Mal Nath. Thereafter, she came to Man Nath and according to her testimony, she had taken Man Nath as her third husband and on the day of occurrence, she was living with deceased Man Nath. It is alleged that her accepting Man Nath as her third husband was not liked by Nanak Nath and Mal Nath and it was not that account that Man Nath was given a beating by these two accused persons a few days before the day of occurrence. According to the prosecution witness, both these accused persons Nanak Nath and Mal Nath were on the look out for an opportunity to do away with Man Nath and it was from that objective that on the day of occurrence, both Mal Nath and Nanak Nath came at the dead of night to the house of Man Nath and gave four 'Gandasi' blows on the body of Man Nath when he was sleeping on the cot. Mst. Jadao has testified these events in her statement before the trial court but it is alleged that she could not be relied upon as she had given a very different account of this incident before the committing court. Mst. Jadao has testified these events in her statement before the trial court but it is alleged that she could not be relied upon as she had given a very different account of this incident before the committing court. In the committing court, she refused to identify the assailants because she said that she was suffering from night-blindness, but at the 'chowk' where Man Nath was sleeping and Nanak Nath giving Gandasi blows on the person of Mannath. Learned trial Judge placed reliance on this statement by advancing an argument that perhaps. Mst Jadao, when she appeared as a witness before the feeling of a mother and therefore, she wanted to screen Nanak Nath who was her son, but, in the opinion of the learned Judge, sense prevailed on Mst. Jadao when she was examined at the trial and therefore, she came out with true story. In our opinion, the argument advanced by the learned trial judge to accept the testimony is based on surmise. At the trial, not a single question was put to this lady whether she could see in the night or not. In this view of the matter, it will not be safe to place reliance on the testimony of Mst. Jadao and to base conviction on such statement which, on the very face of it, appears to be doubtful. Learned trial Judge has accepted this that he has committed an error in doing so. We do not agree with him. 11. Even if the statement of Mst. Jadao is rejected by this court, the learned Public Prosecutor argues, that there is sufficient evidence against the accused persons to sustain their conviction and in support of this submission, he has read out the statement of Sahiram PW 3 who, according to him, is a straightforward witness and his testimony could not be shaken in cross-examination. 12. We carefully perused the statement of PWS Sahiram. He has stated that he was sleeping in a 'chowk' adjacent to the 'chowk' in which Man Nath was sleeping. At midnight he heard a voice which was not intelligible. He got up and when he saw into the 'chowk' from when the sound was coming he found Nanak Nath and Mal Nath armed with 'Gandasi' and 'Barashi' standing by the side of the cot on which Man Nath was sleeping. At midnight he heard a voice which was not intelligible. He got up and when he saw into the 'chowk' from when the sound was coming he found Nanak Nath and Mal Nath armed with 'Gandasi' and 'Barashi' standing by the side of the cot on which Man Nath was sleeping. He also saw Nanak Nath dealing 'Gandasi' blows on the person of Man Nath. When he reached towards this assailants & asked them not to run away, he saw the assailants running away after jumping the force on the western side. He tried to follow then and pursued them for about left side after jumping the fence but he came back on the assailants were armed with already weapons. According to this witness, Kashiram was immediately sent for and he dictated the report Ex. P.1 which was taken away by his brother Kumbh Nath to the police station, Taranagar in the night. It was a moonlit night and the moon was on the sky and he says that he had identified both the assailants in that light. This testimony of Sahiram finds corroboration from the report Ex. P.1 which was registered at police station, Taranagar next morning at 7.00 a.m. It also finds corroboration from the medical evidence as the nature of the injuries found on the body of Man Nath proves that the injuries were caused by a sharp edged weapon. The doctor PW 4 has categorically said that these injuries on the body of Man Nath could have been caused by a weapon like 'Gandasi' Ex.1. 13. There is another corroborative piece of evidence which lends sufficient strength to the testimony of Sahiram and it is the recovery of the 'Gandasi' from the house of Nanak Nath in pursuance of the information supplied by him to the Station House Officer after he was arrested. This 'Gandasi' Ex. 1 was found positive for human blood. The accused Nanak Nath in his statement under Section 342 Cr.P.C. has denied the recovery of this 'Gandasi' but the recovery of the 'Gandasi' has been proved beyond all reasonable doubt by the statement of PW 9 Atma Singh and PW 8 Bagh Singh. 14. There is yet another witness Kalu Nath PW 7 who also lends support to the prosecution story. He is a neighbour of the accused persons. 14. There is yet another witness Kalu Nath PW 7 who also lends support to the prosecution story. He is a neighbour of the accused persons. His statement is that on the night of the 'Panchami of 'Savan', when he was returning to his house at about midnight after grazing his buffalo in the field, he saw near the house of Sugan Nath both the accused persons Nanak Nath and Mal Nath, armed with Gandasi and Pharsi, going with a speed towards the house of the deceased. Soon thereafter, he heard a noise coming from the northern side and when he proceeded towards that side and reached house of Man Nath, he found that Man Nath was murdered. This testimony of Kalu Nath PW 7 to a great extent supports the prosecution story. 15. The motive for committing this crime was very obvious. Mst Jadao, who after the death of her first husband, became the wife of Mal Nath and thereafter, when their relations became strained, she left Mal Nath and came to Man Nath and accepted him as her husband. This infidelity on the part of Mst. Jadao as encouraged by the deceased was resented both by Mal Nath and her son Nanak Nath. 16. Besides the testimony of eye-witness Sahiram, the circumstances brought on record prove the case against the accused persons beyond all reasonable doubt. We therefore, do not find any infirmity in the conclusion arrived at by the learned trial Judge declaring the accused persons guilty of murder. 17. The learned Judge has convicted both the appellants under Section 302 read with Section 34 of the Indian Penal Code. In our opinion, Nanak Nath can conveniently be convicted for an offence under Section 302 Indian Penal Code simpliciter. We, therefore, modify the conviction of Nanak Nath to one under Section 302 of the Indian Penal Code simpliciter and sustain the conviction of Man Nath under Section 302 read with Section 34 of the Indian Penal code. 18. Both these appeals therefore fail and are hereby dismissed. 19. Learned counsel for the appellants prays for leave to appeal to the Supreme court under Article 134 of the Constitution. Since the appeals have been decided mainly on the appreciation of evidence, we cannot certify it to be a fit-case for taking it to the Supreme Court. The prayer is, therefore rejected. *******