JUDGMENT 1. - This order will dispose of the five applications listed above. J have heard arguments and perused the record. These applications have arisen in the following circumstances. 2. In Sariska forest in Bandipol area, in Alwar District, Game Warden Paney Singh found a dead body on 15-9-74. He informed the police station, Thanagazi. The police undertook the inquest. Dr. Lalit Mohan Tripathi performed the post-mortem examination. The dead body was in an advanced stage of decomposition and had become un-identifiable. The dead body was described as that of one unknown Hindu male. The deceased was done to death by strangulation by tying a towel round his neck. The clothes from the dead body were removed and taken into custody by the police. These were a bush-shirt of chocolate colour, white pants and black shoes with laces. On 18-9-74. Ganga Sahai of village Nagar lodged an F.I.R. in the police station Thanagazi that the clothes and shoes recovered by the police were seen by him and they belonged to his son Durga Prasad. His son Durga Prasad had left Nagar for Alwar in truck No. RJA 3755 in the company of Ratan Lal Sunar and Beri on the night of 8-9-74. Durga Prasad had carried with him Rs. 12,000/- from his shop of petrol pump and motor parts. Durga Prasad was also wearing a golden chain in his neck, one ring and a wrist watch, Chocolate pants, white bus-shirt and black shoes with rubber soles. When he asked Beri next day as to where his son was, then Beri told him that he had gone to Jaipur in the company of Ratan. Ratan returned after five days and upon being questioned, he told that Durga Prasad and Babu have remained behind in Jaipur. Two days afterwards Babu returned without Durga. On being questioned, he said that Durga was in Jaipur. He got worried and began to search for his son. But he failed to find him. He was now satisfied that his son was killed by the Gang of Ratan and Babu for the sake of money and ornaments. The police arrested Ratan on 26-9-74 and upon his information and at his instance recovered Rs. 4,780/- one leather beg with an underwear, one Rico watch and some papers. The police after investigation challenged accused Ratan and Beri under section 302 IPC. The police arrested Ratan on 26-9-74 and upon his information and at his instance recovered Rs. 4,780/- one leather beg with an underwear, one Rico watch and some papers. The police after investigation challenged accused Ratan and Beri under section 302 IPC. Babu was not challaned because it was found that on the night of 8th September 1974, he was in the custody of the police, Nagar and was produced before the Assistant Collector and Magistrate Bharatpur on 9-7-74 in connection with a case against-him. The two accused persons were committed.for trial in the court of session, Alwar on 3-1-75. Charges were framed against them on 7-1-75 but the trial was postponed because the learned Judge was told that some more persons were likely to be committed on a complaint of Mst. Sheela Devi and a joint trial was feasible and necessary in the circumstances of the case. 3. On 13-1-75 Mst. Sheela widow of Durga Prasad had lodged a complaint against Ratan, Beri, Babu, Phool, Gokul, Bhagwat and Lakhmi under section 120 B and 114 and 302 IPC. She stated in her complaint that the dead body which was found in Sariska forest was of her husband. Accused Bhagwat and Lakhmi are also petrol dealers and they had lost their business on account of competition by her husband. Both these persons therefore, began to harbour malice against her husband. A conspiracy to murder him was hatched by the accused persons. In pursuance of this conspiracy Ratan opened a shop near the shop of Durga. Accused Beri was already plying tea-stall nearby. Gokal and Phool who were opposed to her marriage with Durga, wanted to see her a widow and were also engaged in litigation with her father-in-law, joined them to obtain the services of accused Babu for the purpose of killing her husband. Ratan. Beri and Babu were entrusted with the actual murder. From 8-9 days before 8-9-75 the accused had been persuading Durga to go with them to Jaipur. On 8-9-74 Durga, Ratan and Beri went in a truck to Alwar On 9-9-74 all the three accused persons murdered Durga in the forest of Sariska. Babu and Beri came to Nagar by bus and Ratan returned after 7 days. From 8-9 days before 8-9-75 the accused had been persuading Durga to go with them to Jaipur. On 8-9-74 Durga, Ratan and Beri went in a truck to Alwar On 9-9-74 all the three accused persons murdered Durga in the forest of Sariska. Babu and Beri came to Nagar by bus and Ratan returned after 7 days. Babu accused quarrelled with Phool and Gokul who did not pay him full price of the murder and openly alleged that Phool, Bhagwat, Gokal and Lakhmi persuaded him, Ratan and Beri to kill Durga. They had promised to pay Rs. 10,000/- but had paid only Rs. 5,000/-The police however did not make proper investigation and challaned only two of them as it was in league with the remaining accused persons, Upon this complaint the magistrate, Thanagazi examined Mst. Sheela on 18-1-75. 18 witnesses were cited The learned Magistrate after examination of only 10 witnesses produced before him, and perusal of a copy of the F.I.R. lodged by Ganga Sahai, of the post-mortem report and of the police record proceeded to take cognizance against seven persons. He found that there was prima facie case against the accused persons under sections 302/109 and 120B IPC. He summoned accused Ratan, Beri and Babu by a non-bailable warrant as they had done the actual job. Accused Nos. 6 and 7, namely, Bhagwat and Lakhmi were on an anticipatory bail and were summoned by a bailable warrant. The other two accused persons namely Phool and Gokul were also summoned by a similar warrant. An application was also made by Mst. Sheela against one Shri Chand Jhalani but the learned magistrate found no case against him and dismissed the complaint as far as Shri Chand Jhalani was concerned. The order of the learned Magistrate is dated 24-2-1975. 4. It is against this order that a revision petition was filed in the court of session. Alwar, which was dismissed by the learned Sessions Judge on 21-10-75. The learned magistrate was proceeding to take action under section 208 Cr. P.C. and before be could commit the case to the court of session, this court stayed the proceedings by its order dated 28-2-75. 5. Now. Bhagwat Prasad and Lakhmi have filed an application under section 482 Cr. P.C, for quashing of the order of the learned magistrate dated 24-2-75. Phool, Gokul and Babu have also made a similar application. P.C. and before be could commit the case to the court of session, this court stayed the proceedings by its order dated 28-2-75. 5. Now. Bhagwat Prasad and Lakhmi have filed an application under section 482 Cr. P.C, for quashing of the order of the learned magistrate dated 24-2-75. Phool, Gokul and Babu have also made a similar application. Babu, Ratan, and Beri have also filed bail applications. Their bail applications were rejected by the learned Sessions Judge. 6. According to section 202 Cr.P.C. in a complaint of an offence exclusively triable by the court of session, the magistrate taking cognizance but postponing the issue of process cannot direct an investigation to be made by a police officer or by any other person but shall for the purpose of deciding whether or not there is sufficient ground for proceeding, call upon the complainant to produce all his witnesses and examine them on oath. 18 witnesses were cited but the learned Magistrate examined only 10 witnesses out of them. It was urged by the learned counsel for the petitioners that since all the 18 witnesses were not examined, the provisions of section 202 Cr. P.C. were not complied with. But as the magistrate examined all the ten witnesses produced, it is futile to urge that the provisions of section 202 Cr. P.C. still remained to be complied with. Witnesses cited are not the same as witnesses produced. 7. According to section 209 in a case instituted on a police report or otherwise if it appears to the magistrate that the offence is triable exclusively by a court of session he is required to commit the case to the court of session. In the instant case, while doing so, the learned magistrate it was urged next, took into consideration documents which did not constitute legal evidence. To be precise the objection is that a copy of the post-mortem report and a copy of the F. I. R. cannot be taken into consideration unless the originals were produced and proved by their authors. Both these documents were not legally proved and yet the learned magistrate took them into consideration, and he having done so, his order of the commitment stands vitiated. 8. Both these documents were not legally proved and yet the learned magistrate took them into consideration, and he having done so, his order of the commitment stands vitiated. 8. In his support, the learned counsel cited Loku Basappa Pujari and another v. State, AIR 1960 Bom 461 wherein it was observed that the medical officer must be called upon to depose whether the record made by him in the notes of the post-mortem examination is true and if the medical officer deposed to the truth of the record made by him, the record itself may be treated as evidence. In respect of the first information report the learned counsel cited Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501 wherein the importance of the F. I. R. was stressed. 9. I have considered this objection but I do not find it tenable. Ganga Sahai appeared and deposed that he had lodged a report. I think that was a sufficient proof of the F.I.R. at that stage. Under section 209 Cr. P. C. the magistrate is bound to commit the accused as soon as it appears to him that the offence is triable exclusively by the court of session. Clause (iii) of section 208 and clause (c) of section 209 Cr. P. C. show that documents can be produced before-the magistrate and he is required to send them to the court of session. In doing so if he has considered the copies of the F.I.R. and the post-mortem report which have not yet been formally proved, it cannot be said that the order of the commitment is vitiated for that reason. So, even in a case instituted on a police report, what the magistrate has simply to do is to consider the record produced before him by the police. No evidence is recorded either of the author of the F. I. R. or of the medical officer and yet on the basis of the record including these two documents if he considers that the case is exclusively triable by the court of session, he can commit the case. I therefore, do not find that the order of commitment suffers from any invalidity and reject this argument. 10. As to the merits of the case, the learned counsel submitted that the learned trial Judge took cognizance of the offence against five of them without any evidence. I therefore, do not find that the order of commitment suffers from any invalidity and reject this argument. 10. As to the merits of the case, the learned counsel submitted that the learned trial Judge took cognizance of the offence against five of them without any evidence. There is no evidence against them in the F. I R. and the police after thorough investigation found that they except Ratan and Beri were not concerned in the crime. Indeed, one of them, namely, Babu was alleged to be in the police custody at the time of the occurrence. The evidence which was produced before the learned magistrate by the complainant Mst. Sheela does also disclose no case against the petitioners. It was pointed out that Prabhu Dayal and Rang Behari witnesses were produced to prove extrajudicial confession made by the accused persons, and Manohari and Birdha were produced to prove the conspiracy. But extra judicial confession is a weak type of evidence, It was also pointed out that witnesses Manohari and Birdha were casual witnesses and as held in Ismail Ahmed Peepadi v. Momin Bibi and others, AIR 1941 PC 11 it is proverbially rash to rely upon a chance witness even if he is not necessarily a false witness. It was also submitted that the motive for murder state in the F. I. R. was greed for money while in the complaint, the suggested motive was jealousy, animosity and agreed. Above all, there is no evidence that the dead body was that of Durga Prasad. There was thus no evidence justify the learned magistrate in taking cognizance of the offence. 11. I have cursorily gone through the evidence of the prosecution witnesses, It will not be proper for this court to make any comment at this stage in respect of the evidence of the prosecution witnesses. The learned magistrate has found that prima facie their evidence disclosed that the petitioners were involved in the murder of deceased Durga Prased. I do not find any thing to suggest that the assessment made by the learned magistrate can be considered incorrect and improper. There is there evidence of extra judicial confession and conspiracy to murder and it certainly is not a case of no evidence. The articles recovered suggest that they were of Durga. I do not find any thing to suggest that the assessment made by the learned magistrate can be considered incorrect and improper. There is there evidence of extra judicial confession and conspiracy to murder and it certainly is not a case of no evidence. The articles recovered suggest that they were of Durga. As regards the difference in motives pointed out, suffice to say that there is nothing inherently impossible in the accused having diverse motives to join together to eliminate a common target. Moreover, all these points could be urged before the learned Sessions Judge under section 227 Cr. P. C. I therefore, refrain from interfering with the order made by the learned magistrate. 12. Though the police found that the accused Babu could not be, available on 8th and 9th September, 1974 when the murder is alleged to have been committed as he was in police custody on those days, I cannot uphold his plea of alibi at this stage, firstly because it is not yet certain on which date the murder was actually committed and secondly because we do not know when Babu was arrested and released and whether he could not have gone after his release to join the execution of the conspiracy. There is evidence on record that Ratan and Beri were there to cause the murder of Durga Prasad. If any delay is caused in the trial, the petitioners are to blame themselves by resorting to these proceedings. I am therefore, not inclined to enlarge any of them on bail.Accordingly, I reject all these applications. *******