JUDGMENT 1. - The appellant-Bacchandan was tried by the learned Sessions Judge at Jodhpur for offences of murder, house trespass for the purpose of committing an offence punishable with death and for having in his possession a 22 Bore pistol with live cartridges without any valid licence, with the intention to use it for causing the murder of Shankerlal Kalani by his Judgment dated 22. 11. 1976. The trial Judge convicted the appellant under sections 302, 449 I. P. C. and sections 25 and 27 of the Arms Act and sentenced him to imprisonment for life and to rigorous imprisonment for 7 years on the first and second counts respectively and to suffers rigorous imprisonment for 2 years on third and fourth counts each. The sentences on each count were, however, ordered to run concurrently. 2. There is an appeal by Bacchandan appellant against his convictions and sentences. The state also has preferred an appeal under section 377 Cr. P. C. for seeking enhancement of sentence of life imprisonment to death on the ground that in the circumstances of the case the sentence awarded to the appellant under section 302 I. P. C. by the trial Judge is grossly inadequate. 3. The prosecution case is quite simple. It may be briefly stated as follows:- 4. The occurrence took place at about 8.30 p. m. on 10. 10. 1971 inside a room of Shankar Lal deceased in village Deoli. Prior to the occurrence the relations between the deceased and the appellant were reported to be cordial inasmuch as the deceased used to treat the appellant as his son, but the appellant became annoyed with the deceased when the latter failed to bring about on amicable settlement of the dispute that arose between the appellant on the one hand and Dharm Chand and others on the other hand relating to an agricultural farm known as Prem Krishi Farm, the key of the out-house of which was handed over to the proprietors thereof by the appellant at the instance of Shankar Lal deceased. 5. On the day of occurrence at about 8-30 p.m. Shankerlal deceased was lying in the room of his house and his grand-daughters were gently exerting pressure on his legs with their hands. At that time P. W. 3 Ramjan Bagwan came into the room and began to talk to Shankerlal deceased. 5. On the day of occurrence at about 8-30 p.m. Shankerlal deceased was lying in the room of his house and his grand-daughters were gently exerting pressure on his legs with their hands. At that time P. W. 3 Ramjan Bagwan came into the room and began to talk to Shankerlal deceased. In the course of their talks Bacchandan appellant entered the room having wrapped his body in a shawl and fired a shot from his pistol at the deceased. Ranjan Bagwan intervened and tried to catch hold of the body of the appellant but the latter fired another shot from the pistol at Shankerlal which hit his right shoulder. The occurrence was eye-witnessed by Mst. Taradevi P.W. 1. Ranjan P. W. 3 and Champalal P. W. 15. Nardeo, Himmatsingh and others also rushed to the place of occurrence on hearing the report of the pistol and caught hold of the appellant and brought him to the fold but the latter succeeded in running away from there after disengaging himself from their grip. Champalal son of the deceased then rushed to the Post-office along with Himmatsingh and from there gave telephonic message about the incident to Press Cables Factory, Peepalia. The message was received by Gangasingh who was an employee of the said factory. Champalal asked Gangasingh on telephone to inform the Superintendent of Police and his brother Pukhraj and Shivdutt. Gangasingh P. W. 5 accordingly gave the Superintendent of Police Pali an information about the occurrence to Jaipur Police Station and the Superintendent of Police, Pali. He telephoned to Sojat Telephone Exchange also and asked the Officer on duty to inform the Sub-Divisional Magistrate, Sojat and Dhanpatraj, Advocate and the Medical Officer about the occurrence. He talked to Pukhraj Kalani also on telephone and informed him about the message given to him by Champalal. Thereafter at 9.25 p.m. on 10-10-1971 the Superintendent of Police, Pali informed Anoop Singh, Head Constable, Police Station Jetaran on telephone that Bacchandan had first Shots at Shankerlal at Deoli and asked him to pass on that information to the Circle Officer. Anoopsingh Head Constable recorded the information given to him by the Superintendent of Police in the daily diary of the Police Station which is Ex. P. 44 and passed on the information to the Circle Officer. Anoopsingh Head Constable recorded the information given to him by the Superintendent of Police in the daily diary of the Police Station which is Ex. P. 44 and passed on the information to the Circle Officer. Shri Jai Prakash Tyagi, Circle Officer then took Police force with him and rushed to village Deoli after making an entry Ex P. 45 to this effect in the daily diary of the Police Station. Before the Circle Officer reached the spot Ramesh Chandra Gupta Sub-Divisional Magistrate, Sojat went to village Deoli alongwith Dr. Kansingh Mehta, Medical Officer, Sojat, and the two compounders upon receiving an information about the occurrence from Shri Tikan Telephone Operator the very day at 9.30 p. m. He was immediately followed by Shri Dhanpatraj Bhandari, Advocate. Shri Ramesh Chandra Gupta went into the room where Shankerlal was lying injured along with the Medical Officer and Shri Dhanpatraj Bhandari, Advocate. Dhanpatraj Advocate asked Shankerlal as to how the incident had occurred. Shankerlal thereupon disclosed to Dhanpatraj that Bacchandan appellant had fired shots at him. Ramesh Chandra Gupta come to know that before his arrival one doctor of Primary Health Centre Chanval and a local Vaidhya had come there and attended the injured. Dr. Kansingh examined Shankerlal injured and advised that the latter should immediately be removed to Jodhpur Hospital as there were no arrangements at Deoli for providing suitable treatment to the injured. Shri Ramesh Chandra Gupta with the help of others, therefore, brought the injured to the open court yard of the village market where the injured was made to lie in a car brought by his son Shivdutt Kalani. The car immediately started from the open court yard and was brought to halt in the main court yard of the village. At the main court yard Dr. Kansingh upon being inquired by Shri Ramesh Chandra Gupta as to the condition of the injured expressed his opinion that the condition of Shankerlal was deteriorating and so his dying declaration might be recorded, Shri Ramesh Chandra Gupta accepted the advice of Shri Kansingh and recorded the statement of Shankerlal injured in the car itself in the presence of Shivdutt Kalani, Dr. Kansingh and the compounders. The dying declaration of Shankerlal recorded by Shri Ramesh Chandra Gupta is Ex. P. 41. There after the car started for Jodhpur. Kansingh and the compounders. The dying declaration of Shankerlal recorded by Shri Ramesh Chandra Gupta is Ex. P. 41. There after the car started for Jodhpur. In the way at Sojat-road Shankerlal injured asked for some water and so water was brought from a nearby well and was given to him. Then Ramesh Chandra Gupta got down from the car at Sojat and the injured was taken to Jodhpur Hospital where he died after some time. 6. After the injured was removed from village Deoli to Jodhpur Shri Jai Prakash Tyagi accompanied by Police party reached village Deoli at about 12-30 A. M. and not Champalal who lodged a written report Ex. P. 13 with him about the occurrence. Shri Jai Prakash sent the report to the Police Station Jetaran for registration of a criminal case and locked the room wherein the occurrence had taken place. He deputed Constable Prem Singh to guard the place of occurrence and interrogated Champalal. Then he deputed constables to trace the where abouts of the appellant. He also started for searching out Bachandan but despite his best efforts the appellant could not be arrested. At about 6 A. M. he recorded the statement of Ranjan and Taradevi eye-witnesses and inspected the site. He got prepared a site inspection memo Ex. P. 10 under his supervision and himself prepared a site plan Ex. P. 9. He found blood stained clothes and bedding in the room. He noticed blood stains on the well also and found two fired cartridges and two live cartridges, He took all these articles into his possession vide memo of recovery Ex. P. 11 and sealed them in the presence of Motbirs. Then he went to the well of Ranjan Bagwan and inspected the site and prepared a site inspection memo and took pieces of Mutira into his possession from the field of Ranjan. Then he got photographs of the house of Shankarlal and the well of Ranjan Bagwan prepared by Dalveer Singh photographer. Later on he came to know about the death of Shankarlal and registered a case under section 302 I.P.C. He recorded the statements of Hardeo, Himmat Singh and Mangilal and the ladies and girls of the family of the deceased. 7. After the death of Shankarlal, post mortem examination was performed over his dead body at Jodhpur by Dr. Later on he came to know about the death of Shankarlal and registered a case under section 302 I.P.C. He recorded the statements of Hardeo, Himmat Singh and Mangilal and the ladies and girls of the family of the deceased. 7. After the death of Shankarlal, post mortem examination was performed over his dead body at Jodhpur by Dr. S.K. Pathak, Medical Jurist and Head of Department, Forensic Medicine, M. G. Hospital, Jodhpur. Upon postmortem examination Dr. S. K. Pathak detected the following external injuries in the dead body (1) Lacerated wound 11/2 cm. x 1/2 cm. muscle & bone deep placed on left growing, 6 cm. below and medial to left superior. The spine and 71/2cm. lateral to median line. Blackening, tattooing and slanging present margins inverted (in left wound). (2) Lacerated wound 1/2 cm. in diameter placed on 'A' posterio-lateral aspect of arm upper to 1/2 portion, margins inverted, blackening tattooing and slight syngine present 'inlet wound 'B' lacerated wound cm in diameter with averted margins, communicating with wound 2 A'. The wound is placed on posterior portion of . arm at the level of injury No. 2 A' and 2 C' - Lacerated wound 1/2 cm in diameter with inverted margins placed on posterior axillary fold of axilla at the level of 2 A' and 'B' wounds. (Inlet wound) "The bullet fell sub-cutaneous on back of right scapula." On dissection of the body, injury No. 1 showed extensive haematoma in the tissues and around that injury. The bullet was found impacted between the head and neck. Two bullets were taken out-one from hip joint and other from right scapular region which were preserved in a sealed packet. In the opinion of the doctor, death occurred due to shock and heamorrhage as a result of the ante mortem injuries mentioned above. 8. Dr. S.K. Pathak prepared post mortem report Ex. P. 50 which was handed over later on along with the bullets and Panchnama to Bagaram L. C for being taken to the Investigating Officer. Shri Jay prakash Tyagi thereafter inspected the record of the Arms at S. P. Office and found that Bhavanisingh resident of Deoli had a 22 bore revolver. He, therefore, sent Bagsingh, Head Constable to Ajmer to find out whether 22 bore revolver was with Bhavanisingh. Shri Jay prakash Tyagi thereafter inspected the record of the Arms at S. P. Office and found that Bhavanisingh resident of Deoli had a 22 bore revolver. He, therefore, sent Bagsingh, Head Constable to Ajmer to find out whether 22 bore revolver was with Bhavanisingh. Bagsingh, Head Constable gave a message upon telephone from Ajmer that the 22 bore revolver of Bhavanisingh was missing. Shri Jayprakash Tyagi went to Ajmer, met Bhavanisingh there and took 22 bore cartridges from his possession along with the licence of revolver. 9. As the whereabouts of the appellant could not be traced despite due diligence on the part of the police, proceedings under sections 87 and 88 Cr. P.C. were initiated against him to enforce his attendance. Eventually the appellant was , arrested near Gagariya station at the borders of India and Pakistan by Shri S. Sampatraj. Dy.S P on 12.1.1923 vide memo of arrest Ex. P.46. After the arrest of the appellant, requisite sanction to prosecute him under sections 25 and 27 of the Arms Act was obtained by the Investigating Officer from the District Megistrate, Pali and a challan was filed against him under sections 202, 449 I.P.C. and sections 25 and 27 of the Arms Act in the court of Munsif Magistrate Pali. The learned Magistrate held an inquiry preparatory to commitment and upon finding a prima facie case triable by the court of Session, committed the appellant to the court of Sessions Judge, Pali, where from the case was later on transferred to the court of Sessions Judge at Jodhpur by an order of the High Court dated 5.5.1975. 10. The learned Sessions Judge, Jodhpur tried the appellant for the aforesaid 1 offences and found him guilty thereof and passed sentences on him as stated above. Aggrieved by his convictions and sentences, Bachandan has preferred this appeal 1 and the State also has moved this Court for enhancement of the sentence. 11. As the two appeals arise out of one and the same judgment of the learned Sessions Judge, Jodhpur and as common question of law and fact do arise in both of them they are decided together by our one judgment. 12. We have carefully perused the record and heard Mr. H. R. Bhansali, learned counsel for the appellant and the learned prosecutor for the State at length. 13. At the out set we may observe that Mr. 12. We have carefully perused the record and heard Mr. H. R. Bhansali, learned counsel for the appellant and the learned prosecutor for the State at length. 13. At the out set we may observe that Mr. Dinker Lal Mehta, Special Public Prosecutor appearing for the State pointed out that the prosecution wrongly placed reliance on Ex. P.13 as F. I. R. and the learned Sessions Judge, Jodhpur committed an error in treating it as a first information report in the eye of law. Ex. P. 13 is the statement of Champalal which was recorded by Jaiprakash Tyagi Circle Officer at the spot in village Deoli at about 12.30 A. M. on 11-10-1971. It has been brought on the record that prior to the recording of the statement of Champalal Ex. P. 13 Jai Prakash Tyagi received an information that Shankerlal deceased was shot at by the appellant. This information was given by the Superintendent of Police upon telephone to Police Station, Jetaran at 9.25 P.M. on 10-:0-1971. It was received by Anopsingh, Head Constable of the said Police Station and was recorded in the daily diary. It reads as follows - jktLFkku iqfyl jkstukepk vke Fkkuk tSVkju ftyk ikyh jktLFkku --------------------------------------------------------------------------------------------------------------------------------------------------------------------------- uEcj lqekj %& 206 --------------------------------------------------------------------------------------------------------------------------------------------------------------------------- rkjh[k] ekg lu~ o oDr %& 10&10&71 in 9&25 ih ,e --------------------------------------------------------------------------------------------------------------------------------------------------------------------------- etewu fjiksVZ %& bl le; Jheku~ ,l0ih0 lkgc ikyh us tfj;s VsyhQksu Qjek;k fd nsoyh esa cpunku us 'kadjyky dkykuh ds xksyh ekj nh gSA lh0vks0lk0 dks dgk tk; fd oks T;knk ls T;knk LVkQ ysdj nsoyh igqWapsA fygktk lh0vks0 dks tfj;s VsyhQksu lwpuk nh xbZA n0,0& vuwiflag ch0 , Upon receiving the above information, at, 9.40 P. M. Jaiprakash Tyagi Circle Officer Jataran started for village Deoli along with police party as is evidence from an entry Ex. P. 5 made to this effect in daily diary of the Police Station by Anopsingh Head Constable. It will not be out of place to mention that soon after the occurrence Champalal gave Gangasingh P. W. 5 an informant upon telephone that his father Shankerlal had been shot at by Bachandan appellant and the matter should be reported to the Police. Thereupon Gangasingh P. W. 5 transmitted the said message to S. P. Pali on telephone. The S. P. Pali accordingly informed Police Station Jataran. Thereupon Gangasingh P. W. 5 transmitted the said message to S. P. Pali on telephone. The S. P. Pali accordingly informed Police Station Jataran. Hence it is borne out from the record that information relating to the commission of a cognizable offence was received by Sri Jaiprakash Tyagi, Circle Officer, Police Station Jataran before he went to the spot. 14. The contention of the learned counsel for the appellant in this behalf is that from the mere fact that Shri Jaiprakash Tyagi went to the spot on hearing of the occurrence, it cannot be said that investigation in law was commenced by the Circle Officer and so the statement of Champalal Ex.P./3 does not fall within the purview of section 162 Cr. P. C. 15. We have considered the above contentions. The question whether investigation had begun is a question of fact which necessarily depends upon the acts and circumstances of each case and it is for the Court to decide whether this statement is hit by the mischief of section 162 Cr. P.C. In the present case it is obvious from the statement of Jaiprakash Tyagi P.W. 36. that immediately after reaching the spot at 12.30 A. M. he locked the room wherein the occurrence had taken place and deputed Popsingh Constable to guard the spot. Then he interrogated Champalal and deputed Police Constables to search for the appellant. In his cross-examination Jaiprakash Tyagi gave an explanation as to why he did not treat the information Ex. P.44. as F.I.R. The explanation is that he did not consider it proper to treat information sent by the S. P. as F.I.R. without verifying the facts at the spot. The above explanation given by him is not convincing, because the information given by the S. P. Pali on telephone to Police Station Jataran was not a gossip or rumour. The information given by the S. P. clearly indicated that the cognizable offence had been committed by the appellant at village Deoli by shooting at Shankerlal. The information was entered in the general diary i. e. 'rojnamcha' of the Police Station and was signed by Anopsingh Read Constable who had received it from S.P. Pali. The information given by the S. P. clearly indicated that the cognizable offence had been committed by the appellant at village Deoli by shooting at Shankerlal. The information was entered in the general diary i. e. 'rojnamcha' of the Police Station and was signed by Anopsingh Read Constable who had received it from S.P. Pali. It is no doubt true that the mere fact that the Investigating Officer started from the police station to place of occurrence does not indicate commencement of the investigation but in the present case, the Circle Officer after reaching the spot locked the room wherein the occurrence took place and deputed one constable to guard it and then proceed to interrogate Champalal and in this manner took some step in the nature of investigation for ascertainment of the actual offence after forming an opinion that there were grounds for investigating the crime. The statement of Champalal was, therefore, recorded in the course of investigation and such statement is hit by section 162 Cr. P. C. and the learned Sessions Judge wrongly relied upon it as a F. I. R. He that as it may, the mere fact that the statement of Champalal Ex. P. 13 was treated as F. I. R. in the case does not in any way detract the value of the evidence of prosecution witnesses. It can be used to corroborate or contradict the evidence of Champalal at the trial. 16. Coming now to the merit of the prosecution case we may say that the only point for determination in this appeal is as to whether Bachandan appellant was the person who fired shots from his pistol at Shankerlal in the latter's room at about 8.30 P. M. on 10. 10. 1971 and thereby caused his death. The learned counsel or the appellant strenuously urged before us that the prosecution utterly failed to bring home the offence of murder to the appellant beyond reasonable shadow of doubt and the Sessions Judge without taking into consideration the highly unsatisfactory nature of the prosecution evidence recorded the conviction of the appellant under section 302 and 449 I. P. C. and sections 25 and 27 of the Arms Act simply on the basis of conjecture and suspicion which could not be substituted for proof. This argument of the learned, counsel for the appellant is devoid of force in the face of the evidence on the record which upon close and careful scrutiny by us has been found trustworthy to a great extent. 17. In this case the prosecution examined three eyewitnesses viz. Mst. Taradevi P. W. 2. Ranjan P. W. 3 and Champalal P. W. 32. Out of these witnesses, Mst. Taradevi and Champalal have deposed in clear and definite terms that the appellant was the person who shot at Shankerlal inside his room at 8.30 p. m. on 10-10-71 The remaining Ranjan and Bhagwan, no doubt, state that the trial that Shankerlal was shot at thrice at the time and place alleged by the prosecution but he could not recognise the assailant as the face of the latter, according to him, was muffled at the time the shots were fired by him at the deceased. Ranjan was declared hostile in the trial court as he realised from his former statements which he had made before the Investigating Officer and the S.D.M. Sojat and wherein he definitely implicated the appellant as perpetrator of the crime of murder. The trial court, therefore, allowed the Public Prosecutor to put questions to him which might be put in cross-examination by adverse party. Accordingly this witness was subjected to lengthy and searching cross-examination by the Public Prosecutor with reference to his previous statement, but nothing substantial came out in favour of the prosecution. We have read and considered his testimony as a whole with a view to find out whether it is entitled to any weight. In our considered opinion he is not a truthful witness so far as the part of his evidence that he could not recognise the assailant on account of his face having been muffled at the time of occurrence is concerned. The reason is that he miserably failed to afford any reasonable explanation for the material discrepancies and contradictions appearing between his deposition at the trial and his former statement before the Investigating Officer and the Sub-Divisional Magistrate, Sojat in which he related the whole of the incident from start to finish and definitely stated that the appellant was the person whom he saw firing shots from his pistol at the deceased. The explanation given by this witness with regard to variance between his statement in the trial court and his former statement Ex. P. 1 before the Investigating Officer (with which he was confronted at the trial) is that he was coerced by the Police to state certain facts which were not true in his police statement and that his statement was procured by the police under threat of being involved in the murder case as a co-accused. As for his statement Ex. P. 3 which was recorded by the S. D. M., Sojat under section 164 Cr. P. C. his explanation was that he did not utter any word from his mouth before the Sub-Divisional Magistrate who wrote his statement at the dictation of the S H. O. and who obtained his signatures on it after it was recorded. Ranjan further stated that a day before he was taken to Kharchi by the S. H. O. for getting his statement recorded by the S. D. M. under section 164 Cr. P. C. he was beaten by the Police in the night. The aforesaid explanation given out by Ranjan is not at all convincing because he himself admitted in his cross-examination by the Public Prosecutor that he did not lodge complaint anywhere that the S. D. M., Sojat recorded his statement at the dictation of the S H. O and it contained facts which were not deposed by him. As regards the allegations that he was beaten by the police and coerced to make a false statement before the Investigating Officer he claimed to have made several complaints to concerned authorities at Jaipur, Delhi and Pali but no copies of such complaints have been produced by him. In the absence of any material before us we are unable to accept his explanation for material contradictions appearing between his deposition at the trial and his former statements which he gave before the Police and the S. D. M., Sojat. His evidence, therefore, is not helpful to the prosecution in establishing the identity of the assault of the deceased. 18. His evidence, therefore, is not helpful to the prosecution in establishing the identity of the assault of the deceased. 18. The next eye-witness relied upon by the prosecution is Champalal P. W. 32 whose evidence at the trial in nutshell is that about 10 or 15 minutes after Ranjan P. W. 3 had gone into the room of his father Shankerlal was having talks with the latter, he also went to his father's house and lay upon a cot which was lying in the Pol of the house. After 10 or 15 minutes Bachandan appellant passed by the side of the cot and entered the room of the deceased. On seeing Bachandan going into the room of Shankerlal, Champalal got up on the cot and from there saw through a window of the room that the appellant had fired a shot. On hearing the report of the pistol, he rushed to the thresh-hold i.e. Thali of the room of his father and saw Bachandan appellant firing another shot from his pistol at Shankerlal while crying as to where Champalal was. Champalal further claimed to have heard Shankerlal crying Mare-re-Mare-re and professed to have seen Ranjan catching hold of the appellant by his wrist and Mst. Taradevi P. W. 1 standing at the thresh-hold (Thali) of the room. Champalal further stated that he turned back and ran away from there while raising a hue and cry that his father Shankerlal had been shot at by Bachandan. 19. The evidence of this eyewitness Champalal has to be examined on its own merits in the light of the criticism levelled against it by the learned counsel for the appellant. The first ground on which his testimony has been assailed before us is that it is not possible to believe that he was present on the scene of offence or at such place or in such circumstances as would make it possible for him to eyewitness the facts deposed to by him. In our opinion this ground is not baseless as upon careful review of his entire evidence we have no hesitation in coming to the conclusion that he was not really present at or about the scene of occurrence at the time when the deceased was shot at in his room. In our opinion this ground is not baseless as upon careful review of his entire evidence we have no hesitation in coming to the conclusion that he was not really present at or about the scene of occurrence at the time when the deceased was shot at in his room. As stated earlier Champalal claimed to have been lying on a cot in the Pol of his father Shankerlal when the appellant had passed by his side and entered the room wherein occurrence took place. According to Champalal's version he got up on the cot as soon as the appellant had moved onwards by the side of the cot and entered the room of his father. From there he claimed to have seen through the window of the room that the appellant had fired the first shot. This part of Champalal's version does not appear to be true because Shri J. P. Tyagi, Investigating Officer who inspected the site and prepared a site inspection memo and a site plan at the instance of Champalal himself clearly stated in his deposition at the trial that the place marked B in the site inspection at the memo Ex P. 9 from where first shot was alleged to have been fired at the deceased was not visible from the place marked K in the memo from where Champalal claimed to have witnessed the firing of the first shot by the appellant through the window of the room. Likewise evidence of Champalal that on hearing the report of the pistol he rushed from the Pol to the room of his father and saw the appellant firing another shot at Shankerlal does not inspire confidence as it stands contradicted by the testimony of another eyewitness Mst. Tradevi P. W. 1 who clearly admitted in her cross-examination that when she started for going to the kitchen from the room of her father-in-law Shankerlal, about five minutes prior to the firing of the first shot she did not see any person in the Pol or on the cot which was lying there. She further admitted that during the period that elapsed between her coming out of the Kitchen of hearing the first report of the pistol and her arrival at the thresh-hold of the room i.e. Thali she did not see any person going in or coming out of the room wherein Shankerlal was shot at. She further admitted that during the period that elapsed between her coming out of the Kitchen of hearing the first report of the pistol and her arrival at the thresh-hold of the room i.e. Thali she did not see any person going in or coming out of the room wherein Shankerlal was shot at. Her admissions in this behalf are quoted below in extenso:- " eSa Fkyh ij ls mBdj xbZ] mlds djhc ikWap feuV ckn jlksbZ esa iVkds tSlh vkokt lquhA Fkyh ls gekjs edku dh iksy utj vkrh gSA tc eSa Fkyh ls jlksbZ dh rjQ vkus yxh rc eSaus iksy esa fdlh dks ugha ns[kkA iksy esa fdlh dks ugha ns[kkA iksy esa [kkV ml oDr iM+h gqbZ FkhA eSaus [kkV ij fdlh dks ml oDr lks;k gqvk ugha ns[kkA--------------------- jlksbZ ls fudydj dejs ds njokts dh Fkyh rd igqWaph] rc rd dksbZ vkneh ml dejs esa ls fudyrk gqvk utj ugha vk;k] u dejs esa vkrk gqvk utj vk;kA eSaus pEikyky dks dejs esa ?kwlrs ugha ns[kkA eSaus cnunku dks dejs esa ?kwlrs gq;sa ugh ns[kkA u ckxoku dks dejs essa ?kwlrs gq;s ns[kkA eSaus jlksbZ esa tc iVkdk lquk Fkk Fkyh ls jlksbZ esa vkbZ] mlds igys ;k ml oDr eSaus pEikyky dks edku esa ugha ns[kkA " If Champalal had been there in the Pol of the house of the deceased and if he rushed from there to the Thali i.e. thresh-hold of the room, Mst. Taradevi P. W. 1 would have surely seen the former either laying on the cot inside the Pol when she had departed from the Thali of the room to the kitchen after 5 minutes before the first shot was fired at the deceased or at least would have seen him standing on the Thali of the room when she had come immediately out of the kitchen on hearing the first report of the pistol. Mst. Tardevi P. W. 1 no doubt stated that Champalal was seen by her coming out of the room of Shankarlal soon after the second shot was fired at the deceased, but Champalal did not claim to have entered the room of his father Shankerlal, but only professed to have been standing at the Thali of the room at the lime when the appellant had fired the second shot at the deceased. If Champalal was standing at the Thali of the room of Shankerlal when the second shot was fired at the deceased, Mst. Taradevi P.W. 1 could have surely noticed the presence of the former at the Thali as she herself claimed to have been standing at. the Thali after she had come there from her kitchen on hearing the first report of the pistol. In this manner, the presence of Champalal at or near about the scene of occurrence was not free from reasonable doubt. 20. Apart from this, the evidence of Champalal at the trial stands discredited on the crucial point by his former statement which he made before the Police and the committing court In his depsition at the trial Champalal state that as soon as he reached the Thali i. e. thresh-hold of his father Bachandan while crying where was Champalal fired the second shot from his pistol at the deceased which had hit the latter on the right side of his shoulder He was confronted with and contradicted by his former statement Ex. P. 3 wherein he Committed to state this material fact, When confronted with his previous statement Ex. P. 3 he gave an unconvincing explanation that he did not think it proper to state the aforesaid fact, therein. In his statement at the trial Champalal further stated that after the deceased was shot at by the appellant he ran away from the Thali i. e. thresh-hold of the room to the market while crying that the appellant had shot at his father. These fact were admittedly not mentioned by him in his previous statement Ex. P. 13 and D. 10 in portion A to B of his Police Statement Ex. D. 10 (with which he was confronted at the trial) he merely stated that he went out side the room while crying Mare-re-mare-re. Again Champalal stated at the trial that after the occurrence was over he went into the room of his father Shankarlal and his father asked him whether he also was shot at, but this fact was not mentioned by him in his Police statement Ex. D. 10. Champalal was farther confronted with and contradicted by his report or previous statement Ex. D. 10. Champalal was farther confronted with and contradicted by his report or previous statement Ex. P. 13 wherein he did not state that he had seen the appellant firing the first shot from the Pol of the house and on hearing the first report he rushed towards the room wherein occurrence took place and that he saw Mst Taradevi standing there although he deposed to these facts in his statement at the trial. Champalal was further confronted with his report or statement Ex. P. 13 wherein he omitted to state that his father had raised a hue and cry such as Mare-re-mare-re. Alihough he narrated this fact in his deposition at the trial. In his former statement Ex. D. 10 which he gave before the Police he did not say that he had seen the appellant firing the first shot. When confronted with his former statement Ex. D. 10 Bachandan could not say why this fact was not written by the Police in his statement. Again he was confronted with portion E to F of his Police statement Ex. D. 10 wherein he stated that his father was sitting on the floor of the room near its wall when Bachandan had fired the second shot at him When confronted with the above portion of his Police statement Champalal denied to have made such a statement and further claimed to have stated that his father Shankerlal was standing at the time when the second shot was fired at him. He was further confronted with and contradicted by portion C to H of his Police statement Ex. D. 10 wherein he merely stated that after Bachandan had run away from the place of occurrence he came back to the spot and saw his father sitting and groaning on the floor of the room near the wall. In his statement at the trial he however stated that when he came back to the spot he saw Himmatsingh and Hardeo catching hold of Bachandan appellant and bringing him outside the house. This fact was not mentioned by him in his report or statement Ex. P. 13 wherein in he simply stated that he, Himmatsingh and Nardeo saw the appellant running away with his pistol. This fact was not mentioned by him in his report or statement Ex. P. 13 wherein in he simply stated that he, Himmatsingh and Nardeo saw the appellant running away with his pistol. In view of the referred to above material contradiction appearing in his deposition at the trial and his former statement before the Police we are of the view that his presence on or about the scene of occurrence was not established beyond reasonable doubt. 21. The third eyewitness produced in this case is Mst. Taradevi P. W. 1. She is the daughter in law of Shankerlal deceased. Her evidence at the trial was that on 10. 10. 1971 at about 7 or 8 P. M. her father-in law Shankerlal was sitting in his room and his grand-daughter and Ratan were gently pressing his legs. She was Sitting near the thresh-hold (Thali) of the room. About 4 minutes prior to the occurrence she went into the kitchen to boil milk. The kitchen was situated at a distance of about 50 feet from the room wherein the occurrence took place. While she was doing her job in the kitchen she heard report of firing of a shot. On hearing the report she jmmedisalely came out of the kitchen and went to the room of her father in law wherein she saw Bacchandan appellant and Ramjan Bagwan P. W. 3 grappling with each other. Bacchandan had a pistol in his hand at that time. When she reached near the entrance-gate of the room she saw her father-in-law Shankerlal standing near a wall inside the room and the appellant standing at a distance of about 2 feet from the deceased According to her version Bacchandan fired a shot from his pistol at her t father-in-law which had hit the latter on the right side of his shoulder. Immediately after the shot was fired she saw her husband's elder brother and Cnampalal coming out of the room and going towards the Pol of the house while raising a hue and cry. She also raised an outcry but Bacchandan appellant threatened her to kill in case she continued to raise a shot. Thereafter she ran away from there and stood near the Pol while raising a hue and cry. On hearing her cries Aruna, Ratan and Mst. Kalyan came there followed by several men and women. She also raised an outcry but Bacchandan appellant threatened her to kill in case she continued to raise a shot. Thereafter she ran away from there and stood near the Pol while raising a hue and cry. On hearing her cries Aruna, Ratan and Mst. Kalyan came there followed by several men and women. Hardeo and Himmatsingh also reached there, caught hold of Bacchandan appellant and brought him to the Pol. Thereafter she did not know whether Bacchandan appellant had gun. 22. The veracity of her above statement has been challenged before us by the learned counsel for the appellant on various grounds. The first ground is that she was not present near about the scene of the occurrence and so it was not possible for her to witness the facts deposed to by her. This ground has no basis as she being an inmate of the house of the deceased would normally be expected to be near about the room wherein occurrence took place. Hence her statement that she was in the kitchen and from there she rushed to the room of Shankerlal on hearing a report of the pistol and the appellant shooting at her father in-law inside the room cannot be doubted. She was in our opinion a natural witness who should normally be where and when she claimed to have been. It will not be a judicial approach to suspect her presence near about the scene of occurrence without good grounds therefor. She was not inimical disposed towards the appellant and so the mere fact that she was closely related to the deceased is not sufficient to discard her evidence as unworthy of credit if after its consideration on merits it is found to be reliable. 23. Another ground on which her evidence is assailed before us is that her name was not mentioned in the F. I. R. Ex. P. 13 as as an eyewitness to the actual occurrence and she was latter on introduced as an eyewitness to falsely implicate the appellant in the commission of the crime of murder. This ground carries no weight. We have already held above that Ex. P. 13 is the statement of Champalal in the course of investigation which cannot be treated as a F. I. R. in this case. It can only be used to corroborate or contradict the maker thereof. Even assuming that Ex. This ground carries no weight. We have already held above that Ex. P. 13 is the statement of Champalal in the course of investigation which cannot be treated as a F. I. R. in this case. It can only be used to corroborate or contradict the maker thereof. Even assuming that Ex. P. 13 is the F. I. R., mere omission on the part of the author thereof mention the name of Mst. Taradevi in it does not affect the credibility of her version in the absence of other circumstances detracting from evidentiary value thereof. Hence the mere fact that her name was not mentioned in Ex. P. 13 is not reason for holding that she was not present near the scene of offence, specially when we have held above that the presence of Champalal author of Ex. P. 13 itself on the scene of the occurrence was highly doubtful. 24. Another criticism directed against the evidence of Mst. Taradevi is that she delayed to disclose the matter to the Police soon after their arrival at the spot and so her evidence should be treated with suspicion specially when she did not come forward to say before the Police that she had eye-witnessed the actual occurrence. In our opinion, this ground also has no foundation. Mst. Taradevi mentioned about the occurrence to Shri J. P. Tyagi, Investigation Officer in the early morning on 11.10.1971 that is within a short span of about 5 hours after the latter's arrival at the spot. It is not a case where it was only after a lapse of many days that an eye-witness disclosed to Police for the first time about occurrence and identity of the doer of the crime. Mst. Taradevi admitted in her cross-examination that she related the whole of the incident to the mother of Nardeo, her mother-in law, her husband's elder-brother's wife and other woman living in the neighbourhood, who had assembled there immediately after the occurrence. She, however, denied to have disclosed to Dhanpatraj, Advocate and his associates that she had eye witnessed the actual occurrence. The reason given by her for nondisclosure is that being a woman she did not like to talk to elderly male persons. She, however, denied to have disclosed to Dhanpatraj, Advocate and his associates that she had eye witnessed the actual occurrence. The reason given by her for nondisclosure is that being a woman she did not like to talk to elderly male persons. Her explanation is quoted below in her own words:- " eSaus ml jkr vkSjrksa esa bl rjg okdk gqvk] ;g ftdj fd;k Fkk vkSj ;g dgk Fkk fd cpunku }kjk esjs llqj dks xksyh ekjrs xksyh ns[kh FkhA eSaus fdlh vkneh dks ,slk ugha dgkA eSa ;g vPNh rjg tkurh Fkh fd ;g /kuirjkt th odhy gSA ;s esjs tsB eq[kjkt th ds lkFk gekjs ;gka igys vk;s FksA /kuijkt th vknfe;ksa ds lkFk vk;s Fks] ml oDr esjh /kuirjkt th ls ckr ugha gqbZ FkhA eSaus /kuirjkt th o muds lkFk okyksa ls ;g ugha dgk fd esjs lkeus cpunky us esjs llqj ds xksyh ekjhA ;g blfy;s ugha dgk fd gekjsa ;gkWa vkSjrsa vknfe;ksa ls ckr ugha djrhA " Hence on this score it cannot be safely held that she was not a truthful witness, specially when her statement was recorded by the Investigating Officer within a few hours of his arrival at the spot. 25. The learned counsel further assailed her evidence on the ground of existence of some discrepancies of improbabilities in it which according to him amounted to deliberate falsehood going to the root of the case. The first discrepancy points out in her statement Ex. D. 1, she stated that Bachandan disengaged himself from the grip of Ramjan Bhgwan and fired another shot from his pistol at her father-in-law, while in her deposition at the trial she stated that when second shot was fired at the deceased by Bachandan Ramjan caught hold of his shoulder. When confronted with the above portion of her statement Ex. D. 1 she gave a reply that Bachandan could not completely disengage himself from the grip of Ramjan when he had fired the second shot. The discrepancies pointed above in her two statements is of a very minor nature which does not go to the root of the case and which would always be found where honest witness come to depose at the trial long after the occurrence. Another contradiction pointed out by the learned counsel for the appellant in her two statements is that in portion A to B of her statement Ex. Another contradiction pointed out by the learned counsel for the appellant in her two statements is that in portion A to B of her statement Ex. D. 2 before the committing court she deposed that her father-in-law was there in the room towards the left side when he was shot at by Bachandan, while in her deposition at the trial she stated that her father-in law Shankerlal was standing on the right side in the room from its entrance gate. When confronted with the above portion of her statement Ex. D. 2 Tara Devi gave a reply that she did not make such a statement before the committing court and it may have been wrongly recorded by mistake. The above variation in the witness stand appears to be due to inaccurate memory rather then to deliberate falsehood. Another discrepancy pointed out between her statement at the trial and her disposition Ex. D. 2 which she gave before the committing court is that in the trial court she stated that when Champalal came to the spot other persons more then 5 in number were in side the room of Shankerlal, but in portion C to D of his statement Ex. D. 2 she stated that when Champalal came back to the spot her father-in-law alone was inside his room. This discrepancy also is not a material one because it does not go to the root of the case. Likewise the discrepancy between his two statements relating to the distance between the kitchen and the room where in occurrence took place is immaterial because the distance deposed to by her was approximate . as she could not be expected to measure it with precision. 26. Another infirmity pointed out in her evidence at the trial is that she wrongly mentioned the presence of Champalal inside the room at the time of actual occurrence in order to introduce him as another eye-witness. The learned counsel for the appellant strenuously urged before us that her evidence should be totally rejected on this score because she had no compunction in creating in false eyewitness. In support of his above contention he relied upon the following authorities of the Supreme Court:- (1) Ramjag and others appellants v. the State of U. P. respondent reported in A. I. R. 1974 S.C. 606. In support of his above contention he relied upon the following authorities of the Supreme Court:- (1) Ramjag and others appellants v. the State of U. P. respondent reported in A. I. R. 1974 S.C. 606. (2) Bhagwandas and another appellants v. State of Rajasthan respondent reported in A. I. R. 1957 S.C. 589. wherein it was held that if a witness had no hesitation in creating an eyewitness, his evidence has to be considered with great care and caution, and it would be risky to accept his evidence as being of any great value. We have perused the referred to above authorities and carefully considered the contention raised before us by the learned counsel for the appellant. It is undoubtedly true that Mst. Tara Devi stated in her deposition at the trial that after the second shot was fired at the deceased she saw Champalal coming out of the room of Shankerlal deceased, but she did not claim to have seen Champalal inside the room when she had rushed to the Thali i. e. the threshing-hold of the room from her kitchen after hearing the report of the first shot. Her statement on this point is reproduced below:- " eSa Fkyh ij ls mBdj xbZ] mlds djhc ikWap feuV ckn jlksbZ esa iVkds tSlh vkokt lquhA Fkyh ls gekjs edku dh iksy utj vkrh gS( tc eSa Fkyh ls jlksbZ dh rjQ tkus yxh] rc eSaus iksy esa fdlh dks ugha ns[kkA iksy esa [kkV ml oDr iM+h gqbZ FkhA eSaus [kkV ij fdlh dks ml oDr lks;k gqvk ugha ns[kkA " She further stated as follows:- " eSaus pEikyky dks ml dejs esa nwljk Qk;j gksus ls igys ugha ns[kkA " Her above statement, as stated earlier, does not find support from the testimony of Champalal P.W. 32 who did not say that he had gone inside the room and had come out of it after the second shot was fired at the deceased. He merely stated that he was standing at the Thali of the room and saw the occurrence from there. In our opinion, her erroneous testimony that she saw Champalal coming out of the room after the second shot was fired at the deceased is due to some confusion or inaccuracy of memory rather then due to outright perjury. He merely stated that he was standing at the Thali of the room and saw the occurrence from there. In our opinion, her erroneous testimony that she saw Champalal coming out of the room after the second shot was fired at the deceased is due to some confusion or inaccuracy of memory rather then due to outright perjury. It usually happens that some witnesses on account of defective recollection blend what they themselves have seen or heard with what they have learned from the narration of others. It is, therefore, the duty of the court while assessing the value of the evidence of an eyewitness to scrutinise the evidence carefully and try to separate the grain from the chaff and to get at the truth because as stated in Ugar v. State of Bihar reported in A.I. R. 1955 S.C. 277 there is hardly a witness whose evidence does not have a fringe of embroidery to his version or some exaggeration or embellishment in it howsoever true it may be in the main. Consequently we are unable to hold that Mst. Tara Devi's entire evidence is liable to be rejected on the ground that she wrongly mentioned that she had seen Champalal coming out of the room after the second shot was fired at the appellant at the deceased. 27. Another ground on which her evidence has been assailed before us by the learned counsel for the appellant is that she deliberately uttered falsehood in stating at the trial that she had seen the appellant being brought out of the room by Himmat Singh and Nardeo witness soon after the occurrence. In our opinion the above criticism directed against her evidence has no legs to stand because Nardeo P. W. 19-definitely stated in his deposition at the trial that on hearing a noise he started from his shop and ran towards the house of Shankerlal. On reaching there, he saw the appellant standing on the gate of the room of Shankerlal having caught hold of by Ramjan Bagwan. Bachandan had a pistol in his hand. He further stated that Bachandan disengaged himself from the grip of Ramjan Bagwan and came into the court yard.. Then Himmatsingh caught hold of his waist and he i. e. Nardeo caught him by his right hand. Bachandan had a pistol in his hand. He further stated that Bachandan disengaged himself from the grip of Ramjan Bagwan and came into the court yard.. Then Himmatsingh caught hold of his waist and he i. e. Nardeo caught him by his right hand. Nardeo and Himmatsingh then brought the appellant outside the Pol where the latter gave them a jolt and succeeded in making good his escape. Nardeo and Himmatsingh made an attempt to catch hold of the appellant again but Bachan Dan told that whosoever would come near him he would be done away with by him. Himmatsingh P. W. 12 also was examined by the prosecution at the trial but he turned hostile to the prosecution case and realised from his former statement which he gave before toe Police and with which he was confronted with by the Public Prosecutor with the leave of the trial court, and wherein he deposed to all the facts which were stated by Shri Nardeo P. W, 19. Upon careful review of the evidence of Himmatsingh at the trial we are of the view that he is not a truthful witness and no reliance can be placed on his testimony. 28. The learned counsel for the appellant, however contended that Nardeo-P W. 19 also is not a reliable witness as he has concocted the story of having seen tile appellant being caught hold of by him and Himmatsingh and being brought to the Pol. The above contention has no force because the evidence of Nardeo has not been shaken in cross-examination. Nardeo P.W. 19 was subjected to a lengthy cross-examination in the trial court, but nothing was elicited from his cross-examination which may tend to destroy the value of his evidence or to impeach his credit. He was confronted with his statement Ex. D. 9 which he gave before the police and wherein he did not state that Shankerlal had told that he was shot at by Bachandan and that Champalal also while running from the side of Pol had told that his father was shot at by Bachandan. He was confronted with his statement Ex. D. 9 which he gave before the police and wherein he did not state that Shankerlal had told that he was shot at by Bachandan and that Champalal also while running from the side of Pol had told that his father was shot at by Bachandan. When confronted with the above statement Ex D. 9 Shri Nardeo stated that he had disclosed to the police that Shankerlal was saying that he was shot at by the deceased, but the Police might not have recorded this fact in his statement, as regards the omission to mention that Champalal while running from the side of the Pol disclosed that his father had been shot by the appellant, the witness gave an explanation that he was not interrogated about this fact by the police. These omissions in his statement before the police are of no material significance so far as his evidence at the trial relates to the disclosure of the fact that he and Himmat Singh had caught hold of the appellant and brought him to the Pol soon after the occurrence. Another ground on which his evidence has been assailed is that it is highly improbable that the appellant would have permitted Nardeo and Himmatsingh to catch hold of his body after commission of the crime and would not have used his pistol to disengage himself from their grip. The above criticism also is not acceptable because Nardeo P.W.19 clearly stated that when Bachandan appellant disengaged himself from the grip of Ramjan Bagwan, Himmatsingh was criticised enough to catch hold of the waist of the appellant and then he too caught him by his right hand and them both brought him outside the Pol. There is nothing inherently probable in the aforesaid act of Nardeo. The mere fact that other persons present there did not musterup grudge to render assistance to Nardeo and Himmatsingh in catching hold of detain the appellant does not necessary go to show that Nardeo and Himmnatsingh. could not have the grudge to catch hold of the body of the appellant. The appellant. might not have taken to his head to commit more murders by using his pistol as he knew it well that a good number of persons had assembled there by the time he was caught hold of by Nardeo and Himmatsingh and brought to the Pol. The appellant. might not have taken to his head to commit more murders by using his pistol as he knew it well that a good number of persons had assembled there by the time he was caught hold of by Nardeo and Himmatsingh and brought to the Pol. The evidence of Nardeo appears to be natural and disinterested because there is nothing on the record that he had any personal grudge or enmity with the appellant. Consequently we are of the view that Mst. Taradevi and Nardeo are truthful and reliable witnesses. 29. The prosecution examined Aruna P W. 2, Mangilal P. W. 4, Shriram P. W. 7, Bherulal P. W. 10, Kalyani P. W. 11 and Champalal P. W. 32 also in proof of the fact that Bachandan was caught hold of by Himmatsingh and Nardeo and brought to the Pol soon after the commission of the crime. But upon careful appraisal of their evidence we have came to the conclusion that their testimonies are not trustworthy and stand discredited on crucial point by their former statements before the Police. Smt. Aruna P. W. 2 claimed to have seen Himmatsingh, Nardeo and Mangilal catching hold of the appellant and bringing him to Pol. but Mansilal P W. 2 did not say in his deposition at his trial that he also had caught hold of the appellant along with Nardeo and Himmatsingh. He was confronted with his previous statement Ex. D. 4 in which he did not state that Nardeo and Himmatsingh had caught hold of the body of Bachandan appellant and had brought him outside the Pol, when confronted with the above statement he could not afford any reasonable explanation for this omission. M t. Aruna P. W. 2 further started in her cross-examination that she saw Ranjan Bagwan catching hold of both the shoulders of Bachandan but in portion C to D of her police statement Ex. D. 3 she gave different story by stating that she saw Ranjan catching hold of the thighs of Bachandan. She could not explain this inconsistency between her two statements. She further admitted in her cross-examination that she did not state before the Police that her grand-father Shankerlal had disclosed to him upon being questioned by her sarcastically that Bachandan was kind to him (Bachandan ki meharbani hogayie). She could not explain this inconsistency between her two statements. She further admitted in her cross-examination that she did not state before the Police that her grand-father Shankerlal had disclosed to him upon being questioned by her sarcastically that Bachandan was kind to him (Bachandan ki meharbani hogayie). She further admitted that she did not relate this fact to her father even earlier then a fortnight. Thus the evidence of Smt. Aruna P. W. 2 and Mangilal is far from being satisfactory. Likewise Shriram P. W. 7 was confronted with and contradicted by portion C to D of his former statement Ex. D. 5 which he gave before the Police and wherein he alleged to have seen the appellant disengaging himself from the grip of Himmatsingh and Nardeo but in his statement at the trial he denied to have made such a statement. He further admitted in his cross-examination that he did not see Himmatsingh and Nardeo bringing Bachandan appellant in front of him, but he saw the appellant later on going hurriedly in the lane, and five or seven persons going after him at a fast speed. Shriram was further confronted with portion A to B of his Police statement Ex. D. 5 wherein he did not claim to have seen Ramjan Bagawan catching hold of the legs of the appellant while in his statement at the trial he deposed to this fact. In his police statement he on the other hand stated that Ranjan was seen by him catching hold of the arms of the appellant The evidence of Shriram does not inspire confidence upon careful scrutiny thereof because he could not even say whether the appellant had made any attempt to disengage himself from the grip of Himmatdngh and Nardeo and whether he could succeed in freeing himself. Similarly Kalyani P. W. 11 was confronted with her police statement Ex. D. 7 wherein it was not mentioned by her that Bachandan appellant was trying to disengage himself from the grip of Ranjan while in her statement at the trial she deposed to this fact. Kalyani P. W. 11 further claimed to have seen Mangilal also catching half of the body of the appellant but this fact as stated earlier has been denied by Mangilal P. W. 4. She was again confronted with her police statement Ex. Kalyani P. W. 11 further claimed to have seen Mangilal also catching half of the body of the appellant but this fact as stated earlier has been denied by Mangilal P. W. 4. She was again confronted with her police statement Ex. D. 7 wherein she did not state that Tara had disclosed to her that the deceased was shot at by Bachandan while in her statement at the trial she professed to have stated this fact before the police. She was again confronted with his Police statement Ex. D. 7 wherein she claimed to have seen Himmatsingh alone catching hold of the appellant while in her statement at the trial she on the other hand stated that Mangilal and Nardeo also had caught hold of the appellant. Her evidence therefore is not free from serious infirmities. Champalal P. W. 32 admitted in his cross-examination that he did not state in his report Ex. P. 13 that he had seen Himmatsingh and Nardeo catching hold of Bachandan appellant and the latter after disengaging himself from their grip ran away but he merely stated that he, Himmatsingh and Nardeo had seen the appellant running away alongwith the pistol. Apart from this, the evidence of Champalal has already been held unworthy of credence because he falsely introduced himself as an eyewitness to the actual occurrence that happened in the room of Shankerlal. Consequently we do not place any reliance on the testimony of Aruna, Mangilal, Shriram, Bherulal, Kalyani and. Champalal regarding the fact that Bachandan was caught hold of by Himmatsingh and Nardeo and brought to the Pol soon after the commission of the crime. 30. Apart from the evidence of eyewitnesses which we have discussed above, the prosecution has relied upon oral as well as written dying declarations which were alleged to have been made by Shankerlal to several persons soon after the occurrence and one of which was reduced to writing in Ex. P.41 by Ramesh Chandra Gupta, Sub Divisional Magistrate, Sojat the very night at about 12. First we take up for discussion the oral declarations of the deceased as to the cause of his death or as to the circumstances having proximate relation to his death. 31. P.41 by Ramesh Chandra Gupta, Sub Divisional Magistrate, Sojat the very night at about 12. First we take up for discussion the oral declarations of the deceased as to the cause of his death or as to the circumstances having proximate relation to his death. 31. The prosecution case is that Shankerlal made oral statements before his death and soon after the occurrence to Aruna P. W. 2, Kansingh P. W. 13, Ramess Chandra Gupta P. W. 18, Nardeo P.W. 19, Champalal P. W. 32, P. W. 1 Shivduh Kalani, and C. W. 2. Dhanpatraj Vakil that he was shot at by Bachandan appellant Hence in the first instance it has to be ascertained whether such oral declaration as to. the cause of his death was proved to have been made by the deceased to or before tho aforesaid witnesses. It is no doubt obvious from a bare perusal of the statements on these witnesses that they professed to have heard the deceased saying before his death and some time after the occurrence that he was shot at by Bachandan, but their testimonies do not appear to be true and reliable on this point as they did not depose to this fact in their former statements before the police. Aruna P. W. 2 admitted in her cross-examination that she did not mention in her statement as to what had happened, her grand father Shankerlal gave a sarcastic reply viz. "Bachandan kimeharbani ho gay i.e." She admittedly did not disclose this fact to his father also earlier than 15 days of the occurrence. She could not even tell the names of women to whom she professed to have disclosed this fact. Curiously enough, she denied to have informed her mother also about all that was gasped out by. Shankerlal from his mouth on being questioned by her. 32. P.W. 18 Shri Ramesh Chandra Gupta, S.D.M. also did not state in his statement Ex. D. 8 before the Police that in his presence Shri Dhanpatraj Vakil asked Shanker Lal deceased as to what had happened and thereupon the latter replied that Bachandan had shot at him, while in his statement at the trial this witness claimed to have heard Shankerlal saying upon being questioned by Dhanpatraj that he was shot at by the appellant. P W. 13 Dr. P W. 13 Dr. Kansingh no doubt has stated that in his presence and in the presence of Champalal the deceased upon being questioned by Dhanpatraj Vakil as to what had happened replied that he was shot at by Bachandan, but his evidence on this point is not supported by Champalal who did not say in his deposition at the trial that in his presence the deceased had made an oral dying declaration to Dhanpatraj inside the room. Champalal on the other hand admitted in his examination-in-chief at the trial that when the doctor of Sojat i. e. Kansingh P W. 13 came in the room and bandaged the wounds of his father Shankerlal, he was sitting in the court yard of his father's house as the persons present there had advised him to stay in the court yard on account of his being perturbed and nervous at that time. Besides- corroboration of the evidence of Kansingh on this point cannot be sought from the testimony of Ramesh Chandra S. D. M. who has stated earlier stands discredited by his former statement Ex. D. 8 before the police so far as it relates to the making of oral dying declaration by the deceased to Dhanpatraj Vakil in his presence. Nardeo P. W. 19 stated in his deposition at the trial that when Champalal came back to the room of Shankerlal and told his father why Bachandan had done this Shankerlal then replied that Bachandan wanted to kill him and asked Champalal whether he also was shot at. Nardeo P. W. 19 was confronted with and contradicted by his statement Ex. D. 9 which he gave before the police and wherein he admittedly omitted to state this material fact. When confronted with his statement Ex. D. 9 he merely gave an explanation that he was not asked about this fact by the Police. The above explanation is not at all convincing. 33. Likewise the evidence of C. W. 1 Shivdutt Kalani relating to the oral dying declaration by the deceased is unworthy of credence because Ramesh Chandra Gupta P. W. 18 stated in his deposition that Shivdutt Kalani had reached village Deoli after Shankerlal had been taken out of his room wherein oral declaration is alleged to have been made by him before the doctor Kansingh, Dhaupatraj and Shri Ramesh Chandra Gupta. Apart from this Dr. Apart from this Dr. Kansingh also definitely stated that at the time when the deceased had made the oral dying declaration implicating the appellant, Shivdutt Kalani was not present in the room. Likewise Dhanpatraj Vakil P. W. 2 was confronted with and contradicted by portion C to D of his former statement Ex. D. 14 wherein he did not say anything about the oral declaration of the deceased but stated to the contrary that when he entered the room he saw Shri Ramesh Cnandra Gupta, S. D. M. recording the dying declaration of Shankerlal therein. When confronted with the above portion of his statement Ex. D. 14, Dhanpatraj denied to have made such a statement before the Police. In this manner, the prosecution has miserably failed to prove the oral dying declaration of the deceased. 34. Coming now to the dying declaration of the deceased which was reduced to writing by Ramesh Chandra Gupta. S. D. M. in the car at about mid night at the very day we may observe that it is a piece of evidence which, like any other evidence, has to be judged in the light of all the surrounding circumstances of this case and the principle laid down for assessing the value of evidence in criminal cases. Before we deal with the contentions raised before us with regard to this piece of evidence we would like to reproduce the declaration of the deceased contained in Ex. P. 41, when translated into English it reads "Stated on oath that ray name is Shankerlal, father's name Hardeo, caste Maheshwari aged 67 years, resident of village Deoli - Today at 8.15 in the night was sitting in the room of my house situated at village Deoli. Ramjan Bagwan came to me and told that Bachandan wanted to meet me. I replied that have nothing to talk to him. I have talked every thing. Meanwhile Bachandan came into my room and fired a shot at me from his revolver. I fell down, then Bachandan fired another shot from the revolver. I became unconscious. Thereafter do not know what had happened. 35. "The statement was read over to the witness who heard it and admitted it to be correct. The witness was asked to sign the statement but he at once became unconscious and could not put his signatures to it. I became unconscious. Thereafter do not know what had happened. 35. "The statement was read over to the witness who heard it and admitted it to be correct. The witness was asked to sign the statement but he at once became unconscious and could not put his signatures to it. certify that the above statement contains a true and correct account of the statement made to me by Shankerlal Sd/- Ramesh Chandra S. D. M., Sojat (Rajasthan)."The above written dying declaration has been assailed by the learned counsel for the appellant firstly on the ground that it was not actually made to Shri Ramesh Chandra, Sub-Divisional Magistrate, Sojat because the consequence of the violence had impaired his senses or occasioned an indistinctness of memory which deprived the deceased of his power to remember the facts alleged to ,, have been stated by him in Ex. P. 41. It was further urged on behalf of the appellant that before proceeding to record the dying declaration Shri Ramesh Chandra Gupta or Dr. Kansingh in whose presence it was reduced to writing did not inquire from the deceased whether he was in a fit state of mind to make the statement. According to the statement of the learned counsel for the appellant omission to put such a material question to the declarant goes a long way to adversely affect the reliability of the dying declaration. Another attack made by him on the dying declaration is that it was not signed by the declarant on the possibility of its having been a tutored version cannot be eliminated all together ss the deceased was surrounded by members of his family and other well wishers right from the time of the incident was over until dying declaration was recorded in the car by the S.D.M., Sojat. In support of his above contention Mr. M. R. Bhansali learned counsel for the appellant placed reliance upon the following authorities of the Supreme Court: (1) Khushal Rao v. State of Bombay (A.I.R. 1958 S.C. 22.) (2) K. K. Reddy v. Public Prosecutor (A.I.R. 1976 S.C. 1994) (3) Balakram v. State (A.I.R. 1974 S.C. 2165). 36. Mr. In support of his above contention Mr. M. R. Bhansali learned counsel for the appellant placed reliance upon the following authorities of the Supreme Court: (1) Khushal Rao v. State of Bombay (A.I.R. 1958 S.C. 22.) (2) K. K. Reddy v. Public Prosecutor (A.I.R. 1976 S.C. 1994) (3) Balakram v. State (A.I.R. 1974 S.C. 2165). 36. Mr. Dinkerlal Mahta, Special Public Prosecutor on the other hand argued that there are no grounds for doubting the dying declaration of the deceased recorded by the S.D.M. as it was a truthful version as to the cause of his death and identity of the assailant and as there is sufficient proof that the deceased was in a fit state of mind to make the declaration and as the Injuries on his body were not such as would have rendered him unconscious immediately after the occurrence. It was further urged by him that dying declaration Ex. P. 41 was a very short statement made by the deceased within 3 hours of the occurrence and the injuries sustained by the deceased were not found to have affected his brain or head and so it cannot be said that the dying declaration suffered from some infirmity and could not be the basis of conviction of the appellant. In support of his above contentions, Mr. D. L. Mehta relied upon the following authorities , - Suraj Deo Oza v. State of Bihar reported in A.I.R. 1979 S.C. 1505. Jaya Raj v. State of Tamil Nadu reported in A.I.R. 1976 S C. 1519. A.M.A. Rehman v. State of Gujrat reported in A.I.R. 1976 S.C. 1782. Somappa v. State of Mysore reported in A.I.R. 1979 S.C. 1831. We have carefully gone through the authorities cited above and considered the rival contention. At '.he out set we may observe that a dying declaration made in a particular case may form the sole basis of conviction if the court upon consideration of the facts of the case in the background of the circumstances in which the dying declaration was made is satisfied that it in a truthful version of the declarant as to the circumstance of transaction resulting in his death. In Khushal Rao v. State of Bombay (A. I. R. 1958 S. C.22) their Lordship were pleased to make the following observations regarding question of legality of a conviction based on dying declaration alone:- 37. In Khushal Rao v. State of Bombay (A. I. R. 1958 S. C.22) their Lordship were pleased to make the following observations regarding question of legality of a conviction based on dying declaration alone:- 37. "On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Court in India and in this Court we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated (2) that each case must be determined on its own fact' keeping in view the circumstances in which the dying declaration was made (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence that other piece of evidence (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principle governing the weighing of evidence (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say in the form of questions and answers and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement had been consistent throughout, if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 38. 38. "Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But, once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. Keeping in view the referred to above principles, we proceed to examine the dying declaration of the deceased contained in Ex. P. 41. It is pertinent to note that this dying declaration was made by Shankerlal deceased within 3 hours of the assault. In dying declaration he definitely stated it he was twice shot at by Bachandan appellant in his room. The appellant was previously known to the deceased and there is evidence on the record that the relations between the appellant and the deceased were quite cordial before the incident. Mst. Taradevi stated in her deposition at the trial that there was electricity light in the house. Hence there is no difficulty in holding that shankarlal deceased could see the appellant and identify him in the light of the electricity, specially when the latter at the time of the firing the shots was standing in the room at a close distance from the deceased. The mere fact that members of the family and other well wishers of the deceased came into the room soon after the occurrence cannot be considered to be a ground for doubting his dying declaration because it was quite natural that his near relatives and other persons must have reached there in the room as soon as they came to know of the assault. Here presence of relatives and friends in the room in which the deceased was lying after the incident is not sufficient to hold that the dying declaration was the result of tutoring. It is not the case of the prosecution that Shankerlal was surrounded by the members of his family and bis friends at the time when he made the dying declaration in the car at about 12 p. m. because according to the prosecution Dr. It is not the case of the prosecution that Shankerlal was surrounded by the members of his family and bis friends at the time when he made the dying declaration in the car at about 12 p. m. because according to the prosecution Dr. Kansingh and Ramesh Chandra Gupta, the driver of the car, the compounders and Shivdutt Kalani son of deceased only were in the car and no person tutored or gave any hint to the deceased at the time when his statement was taken down. Likewise there is no rule of law which requires that a dying declaration could not be acted upon unless it was signed by the deponent, even if the Court is convinced of its truth and there is nothing in the other evidence or in the surrounding circumstances to subject its credibility, Shri Ramesh Chandra Gupta, S.D.M., Sojat who recorded the statement of the deceased and Dr. Kansingh in whose presence the statement was recorded have been called by the prosecution to prove the dying declaration in this case. Ramesh Chandra Gupta has spoken to the writing itself as being a faithful and correct reproduction of what was said to him by the deceased. Dr. Kansingh also stated in his deposition at the trial that on being questioned by Ramesh Chandra Gupta as to how the occurrence took place, Shankerlal deceased related the whole of the story and disclosed that he was shot at by Bachandan. The evidence of Dr. Kansingh P. W. 13 and Ramesh Chandra Gupta P. W. 8 on this point could not be shattered in cross-examination on any reasonable score. Both of them were respectable witnesses having no interest in the deceased or animus or grudge against the appellant. It is obvious from the statement of Shri Ramesh Chandra, S. D. M., Sojat that before recording the dying declaration Ex. P. 41 he inquired from Dr. Kansingh P. W. 13 about the condition of Shankerlal and Kansingh opined that as the condition of the deceased was deteriorating it would be better if his dying declaration was recorded. There upon Shri Ramesh Chandra thought it proper to reduce the statement of the deceased to writing and in fact recorded it in the case itself which was brought to halt in the chowk of the village. Dr. There upon Shri Ramesh Chandra thought it proper to reduce the statement of the deceased to writing and in fact recorded it in the case itself which was brought to halt in the chowk of the village. Dr. Kansinsh P. W. 13 has corroborated the above statement of Ramesh Chandra Gupta on this point. According to his version the blood pressure of Shankerlal had become low and his pulse was weak before he was taken out of village Deoli so he gave him medicine such as blood, occasion, coaming and re bandaged that part of the wound from where blood was coming out. Dr. Kansingh further stated that at that time Shri Ramesh Chandra asked him about the condition of the injured and he opined that the condition was deteriorating. Thereupon Shri Ramesh Chandra Gupta further asked him whether dying declaration of Shankerlal could be taken down and he replied in the affirmative. Dr. Kansingh further stated in the trial court that when dying declaration of Shankerlal was recorded he was mentally alert and remained in the same alert condition upto 15 minutes prior to his death. In A. M. A. Rehman v. State of Gujrat (A.I.R. 1976 S.C. 1782) it has been held by the Supreme Court that the doctor was the best person to give an opinion whether the deceased was in a fit mental state to make the dying declaration. The relevant observations made by their Lordships in para 11 of their judgment are quoted below:- "The Doctor was the best person to opine about the fitness of the deceased to make the statement he did. The Doctor found that life was ebbing fast in the patient. There was no time to call the police or a Magistrate. In such a situation, the Doctor was justified-indeed, he was duty bound-to record the dying declaration of the deceased. He was a disinterested, respectable witness The trial Judge was therefore wholly unjustified in rejecting the evidence of the Medical Officer." 39. The learned counsel for the appellant submitted before us that the deceased was so severely injured that he was in a state of shock till his death and could not have been in a position to make the statement on account of his mental capacity to recollect facts being impaired by the violence and pro fused bleeding from his wounds. The learned counsel for the appellant submitted before us that the deceased was so severely injured that he was in a state of shock till his death and could not have been in a position to make the statement on account of his mental capacity to recollect facts being impaired by the violence and pro fused bleeding from his wounds. In support of his above submission he drew our attention to the following portions of the statement of Kansingh. " cgqr T;knk CyhfMax xzksbu ls gks jgk FkkA xzksbu ,DLV~hesUV dk ,d ,.M gSA CyhfMax dks jksds tkus ds fy;s fMft;y izSlj Vksuh[ksM ,.M lP;wt esFkM gSA 'kadjyky ds dsl esa eSaus Mhft;y iSzlj csUMst VSDuhd dke esa yhA bl esFkM ls CyhfMax dqN :dk ;k] tgkWa xkM+h gekjh :dh] ogkWa pSd esa CyhfMax gks jgk FkkA iV~Vh [kwu ls Hkj xbZ FkhA Hkhx jgh FkhA ---- --------------------------------------------------------- tc rd 'kadjyky th dh e`R;q gqbZ] LVsV vkWQ 'kkWd pyrk jgkA " The above submission made before us by the learned counsel has no force because Dr. Kansingh nowhere stated or admitted in his deposition at the trial that the power of speech of the deceased or his ability to speak was adversely affected as a result of the shock or injuries sustained by him and he was not able to speak or talk. Dr. Prakash Dayal P. W. 30 who was examined by the prosecution to prove the post mortem report Ex. P. 50 prepared by Dr. S. K. Pathak who went to Libya and whose attendance could not be procured without an amount of delay or expense clearly stated in his deposition that in circulatory shock, consciousness of the person is not lost and the person remains mentally sound. He agreed with the view mentioned at page 671 of Prices' Text Book on the Practice of Medicines 1966 Edition that the essential features of the stock state are arteliar hypotension and depression of all vital activities causing weakness sub-normal temperature sweating of apathy. Consciousness is generally maintained without confusion. He further opined that normally when only 50 miligram of pathedine is given'as in this case was given by Dr. Kansingh to Shankerlal he would infer that the state of shock was only mild. Consciousness is generally maintained without confusion. He further opined that normally when only 50 miligram of pathedine is given'as in this case was given by Dr. Kansingh to Shankerlal he would infer that the state of shock was only mild. He looked into the post mortem report and the injuries of the deceased mentioned in it and definitely opined that the injuries would not have caused immediate shock and loss of consciousness. Shri Ramesh Chandra Gupta also stated in his deposition that the mental condition of the deceased was good as he offered chair and talked to him when he went into the room. He further stated that after dying declaration was recorded and the deceased was being taken to Jodhpur he asked for water. There is no reason to disbelieve the evidence of Dr. Kansingh and Ramesh Chandra Gupta about the deceased and fitness of the statement of his mind and his ability to speak at the time when his statement Ex. P. 41 was taken down. 40. It was next contended by the learned counsel for the appellant that Shri Ramesh Chandra Gupta who recorded the dying declaration Ex. P. 41 did not put any question to the deceased retarding his state of mind and his ability to make the statement and so this omission casts considerable doubt on the fact whether deceased was able to speak or to make the statement. In support of his above contention he relied upon the authorities of the Supreme Court, viz. K. R. Reddy v. Public Prosecutor (A. I. R. 1994 S.C. 1979) and Lalubhai v. State of Gujrat (A. I. R. 1972 S.C. 1776) . The above contention also has no force in this particular case because Shri Ramesh Chandra was satisfied that the declaration was conscious and able to make the statement understanding the implications thereof. He made a note to this effect at the foot of the dying declaration recorded by him. It is nowhere stated by Ramesh Chandra Gupta in his statement at the trial that at the time of recording of the dying declaration or immediately before it the deceased was restless or was very much suffering with pain or was in a confused or delirious state of mind. It is nowhere stated by Ramesh Chandra Gupta in his statement at the trial that at the time of recording of the dying declaration or immediately before it the deceased was restless or was very much suffering with pain or was in a confused or delirious state of mind. Hence in the peculiar facts and circumstances of this case we are of the view that omission of Ramesh Chandra to put any question to the deceased regarding the state of his mind throws suspicion on the credibility of the dying declaration of the deceased contained in Ex. P. 41. 41. The learned counsel for the appellant further contended that the dying declaration of the deceased was not recorded in the car, as is evident from the statement of C W. 1 Shivdutt and C. W. Dhanpatraj who stated before the police that the dying deceleration was recorded by Ramesh Chandra in the room of deceased itself in their presence, The above contention is devoid of force because the evidence of C. W. 1 Shivdutt and C. W. 2 Dhanpatraj on this point is not reliable at all because of the material contradictions appearing between their statements before the police and their deposition at the trial. In the trial court both of them stated that the dying declaration was recorded in the car and and not in the room of Shankerlal. In their former statement before the Police they gave an altogether different version by stating that the dying declaration was recorded by Shri Ramesh Chandra Gupta in the room of the cased itself in their presence. They could not offer any reasonable explanation for the aforesaid inconsistencies in their two statements. No reliance can be placed on the evidence of these witnesses as they have no respect for truth and changed their version in the manner which suited them most. Taking into consideration all the surrounding circumstances under which the dying declaration was made by the deceased and recorded by the Sub-Divisional Magistrate we are convinced that the deceased was in a fit state of amount sub-normal and the dying declaration which he made to the S. D. M. in the presence of Dr. Kansingh was voluntary land true and could provide a solid basis for the conviction of appellant without any corroboration. 42. Kansingh was voluntary land true and could provide a solid basis for the conviction of appellant without any corroboration. 42. The prosecution has adduce evidence to prove that the appellant absconded after the commission of the crime and could not be arrested inspire of due diligence and best efforts by the police not earlier than 12-1 1973 i.e. after more than one year. The appellant was arrested by Shri Sampatraj on 12-1-1973 vide memo of arrest Ex. P. 46 near Gangaria station situated at the borders of India and Pakistan. Absconding of the accused for a long time by itself may not be of any assistance to the prosecution in bringing home the charge of murder to him, but to have along with the other evidence connecting or tending to connect with the crime it may assume some importance. In the instant case Bachandan absconded soon after the commission of the crime and could not be arrested earlier than 12-1-1973 despite due diligence and contiuned efforts on the part of the police to trace his whereabouts. A warrant for his arrest was issued and proceedings under section 87 and 88 Cr. P. C. were taken but even then the appellant did not surrender himself before the Court and after a considerable long period of more than one year was eventually taken into custody at the borders of India and Pakistan. The appellant could not offer any reasonable explanation for his long absence from his village and so the fact that he was absconding for more than one year may certainly be taken into consideration against him along with other reliable evidence in determining his guilt. 43. For the foregoing reasons we have no hesitation in holding that no other person but Bachandan appellant fired shots from his pistol from unlicensed fire arm i. e. pistol at Shankerlal after committing trespass into the latter's room in order to the committing of murder and thereby caused his death. The learned Sessions Judge, Jodhpur, therefore, rightly convicted him of the offences punishable under sections 302 449 I. P. C. and sections 25 and 27 of the Arms Act. 44. As regards sentences awarded to the appellant under section 302 I. P. C. it may be observed that the state has preferred D. B. Criminal Appeal No. 42/77 for enhancement of sentence on the ground of its inadequacy. 44. As regards sentences awarded to the appellant under section 302 I. P. C. it may be observed that the state has preferred D. B. Criminal Appeal No. 42/77 for enhancement of sentence on the ground of its inadequacy. This appeal also was argued before us by Mr. D. L. Mehta, Special Public Prosecutor. His contention is that the appellant committed premeditated and cold blooded murder of-Shankerlal who used to treat him just Jike his son and so the appellant must have been awarded death sentence under section 302 I. P. C. The above contention has no force in view of the reasons given out by the learned trial Judge in his judgment for net awarding the extreme penalty of death under the law. It is true that the appellant absconded and was arrested in this case on 12.1.1973 i. e. after more than a year and this defy could not be considered as a mitigating circumstance for passing the lesser sentence under section 302 I. P. C. but as observed by the learned Sessions Judge that even after 12-1-1973 the trial court could not be completed earlier than 22-11-1976 in view of the fact that about more than 8 years have elapsed since the date of the occurrence we do not think it proper and necessary to interfere with the discretion of the Sessions Judge with respect to the sentence under section 302 I. P. C. 45. The result is that D. B. Criminal Appeal No. 4 of 1977 filed by Bachandan appellant fails and is hereby dismissed. The appellant is on bail. He shall surrender to his bail bonds and shall be taken into custody. As the appellant is not present today in the Court the Chief Judicial Magistrate, Jodhpur is directed to get Bachandan appellant arrested and sent to Jail to serve out the sentence awarded to him by the trial Judge. D. B Criminal Appeal No. 42 of 1947 filed by State for enhancement of sentence also fails and is hereby dismissed.Appeal of Appellant Dismissed. *******