JUDGMENT 1. - This petition of appeal by Ganga Sahai and Jagan was submitted by them to this court through the Superintendent of Central Jail, Jaipur. It is directed against the judgment and order dated November 6, 1975, by the Sessions Judge, Alwar, whereby the learned Judge convicted the appellants of the charge of murder punishable under section 302 IPC and sentenced each of them to rigorous imprisonment for life. 2. Since the appellant were unrepresented the Court appointed Shri Arun Kumar Bhandari, Advocate, to urge the pleas in defence amicus curie on behalf of the appellants. 3. The case of the prosecution which resulted in the conviction and sentence of the appellants as aforementioned may be shortly stated here. On March 5, 1975, at about 2 p.m. the Behror police received information that dead body of a male was lying in a well in the area of Ajmeripur. Head Constable Jagrual Singh went to that well and caused the dead body to be taken out from the well. He prepared the inquest report (Ex 7/10) mentioning therein that it was a case of homicide. He observed that there was an injury near the left car of the deceased. He also saw a blood stained stone lying near the well and took it in his possession. 4. Head Constable Jagmal Singh made further inquiries into the matter and discovered that nearly a week prior to March 5, 1975, Ganga Sahai accused had taken away Mahadev deceased from his house situate in village Kali Pahadi and that both of them had spent the night at the residence of accused Jagan, in village Badhin. Next day Ganga Sahai and Jagan were seen accompanying Mahadev deceased towards Bahror. He further discovered that Ganga Sahai and Jagan had killed Mahadev in the area of village Ajmeripur and thrown the dead body into tie well. He also learnt that Bhonri Devi (PW. 2), mother of Mahadev deceased, had lost her husband when Mahadev was a child and that therefore she had started living with Ganga Sahai. During their live in period of nearly 20 years, Ganga Sahai sired two sons from Bhonri Devi. He had no land of his own. He wanted Mahadev deceased to share his hind with him. Mahadev was not agreeable to it. It was on account of this that Ganga Sahai killed the deceased with the help of Jagan accused. 5. During their live in period of nearly 20 years, Ganga Sahai sired two sons from Bhonri Devi. He had no land of his own. He wanted Mahadev deceased to share his hind with him. Mahadev was not agreeable to it. It was on account of this that Ganga Sahai killed the deceased with the help of Jagan accused. 5. Head Constable Jag Mai Singh prepared a written report (Ex. P/14) of his enquiry on the lines mentioned above and submitted it to the S.H.O. Behror on March 8, 1975. The formal FIR (Ex. P. 15) in the case was registered at Police Station Behror on the even date at 1 p.m. 6. During the investigation, the Inquiry Officer is said to have contacted Prabhati (PW. 7), who informed him that the accused had made an extra-judicial confession to him. Jagan was arrested on March 10, 1975. Ganga Sahai was arrested on March 14, 1975 Jagan made a confession(Ex P/6) before Shri Rajendra Singh, Judicial Magistrate first class, Behror on March 21, 1975 He is said to have made a clean breast before the Magistrate telling him that while he had caught hold of the deceased by his legs, Ganga Sahai inflicted lathi blows to the deceased thus killing him on the spot. He further conferred that thereafter both of them had thrown the dead body into a well. The learned Sessions Judge, Alwar, framed separate charges under section 302 IPC against both the accused. They denied the charges and claimed to be tried. 7. During the trial, the prosecution examined among others, Bhonri Devi, Kamla, Girdhari, Devi Sohai, Prabhati, Nihal Singh, Dr. Plarish Narayan Gupta, Vasudev Prasad, Jaml Singh,Surajbhan and the Investigating Officer, SI Shobharam, as witnesses in support of its case. By and large they fully supported the prosecution case as mentioned above. 8. In their statements under section 313 Cr P.C. both of the accused denied the allegations made against them and protested their innocence. Jagan further stated that he had been beaten up by the police and that forced into making the confession before Shri Rajendra Singh, Judicial Magistrate, first Class, Behror. 9. The accused did not produce any evidence in defence. 10. Jagan further stated that he had been beaten up by the police and that forced into making the confession before Shri Rajendra Singh, Judicial Magistrate, first Class, Behror. 9. The accused did not produce any evidence in defence. 10. Relying on the evidence produced by the prosecution, the learned trial Judge came to the conclusion that Mahadev get with horicidal death around February 26, 1975, and he died as a result of the injuries inflicted by Ganga Sahai with the help of Jagan. He therefore convicted Ganga Sahai and Jagan under section 302 IPC and sentenced each of them to the imprisonment for life. 11. Mr. Bhandari, learned Counsel for the defence took us through the entire evidence on record and argued that it was not convincing and reliable. He re erred to the statement of Mst. Bronri (PW.l), the mother of the deceased, and pointed out that according to her, Jagan was also with Ganga Sahai when the latter took Mahadev deceased from her house on the protext that they had to go to Tehsil and make an application there for waiving the penalty in respect of some land He compared this version with the version given by Kamla (PW.2), wife of the deceased, and Girdhari (PW.4), brother of the deceased, who testified that Ganga Sahai was alone in taking away the deceased from his house for the ostensible purpose of making an application to the Tehsildar. It is true that the discrepancy as pointed out by the counsel is there. It appears that Mst. Bhonri in her over-seal to make in case fool proof against Jagan, stated that be too was with Ganga Sahai at the time, the latter had taken away the deceased from his house. PWs. Kamla and Girdhari have told the truth in stating that Ganga Sahai was alone when he took the deceased from his house. We are not prepared to reject the prosecution case out of hand merely because Mst. Bhonri went a step further than Kamla and Girdhari and falsely stated that Jagan was also there with Ganga Sahai when the latter took away the deceased from his house. 12. PWs Bhonri, Kamla and Girdhari have stated with one voice that Mahadev deceased did not return home after he had left it in the company of Ganga Saha, accused towards the end of February 1975. 12. PWs Bhonri, Kamla and Girdhari have stated with one voice that Mahadev deceased did not return home after he had left it in the company of Ganga Saha, accused towards the end of February 1975. They further stated that on his return home alone, Ganga Sahai told them, that he had left the deceased at a tea stall, where he stayed behind to take tea. Goviously, Ganga Sahai had given a false explanation for the non-return of the deceased to his house. 13. Dr. Harish Narain Gupta, who conducted the post-mortem examination on the deed body recovered from the Ajmeripur well on March 6, 1975, deposed that the deceased had suffered anti-mortem fracture of left mestold process and that on internal examination he found that there was fracture of middle cranial fossa from left external auditory meatus to midline. In Dr. Guptas opinion death had taken place due to injury on the left side of the ear of the deceased leading to fracture of mestold process and middle cranial fossa and haemorrhage and comma. Dr. Gupta explained that though in the postmortem examination he had written that the period that elapsed between death and post mortem examination could be about 48 hours to 72 hours, he would modify that opinion and testify that the said period must have been more that 48 hours and less then 2 weeks. It appears that Dr. Gupta modified his opinion in the light of other evidence indicating that the death h .d taken place around February 26, 1975. This is however a circumstance which does not in any way detract from Dr. Guptas consistent opinion that Mahadev died due to the injury on the left side of the ear leading to fracture of mestold process and middle cranial fosse. Even in the original post-mortem report (Ex. P/4). Dr. Gupta had not given any categorical opinion that the death must have taken place between 48 hours and 72 hours from the time of the post-mortem examination. He had used the word "about" in this content indicating that it could be more then 72 hours. 14. The "last seen evidence" as given by Smt. Bhonri Devi, Kamla and Girdhari against Ganga Sahai is further corroborated by the evidence of PW. Nihal Singh. He had used the word "about" in this content indicating that it could be more then 72 hours. 14. The "last seen evidence" as given by Smt. Bhonri Devi, Kamla and Girdhari against Ganga Sahai is further corroborated by the evidence of PW. Nihal Singh. He stated that he had met Ganga Sahai, Jagan and Mahadev, while they were on their way toward Bebror about the time of occurrence. He fun her stated that on his inquiry, Jagan told him that they were going to attend a peshi at Behror. He did not see Mahadev deceased thereafter. 15. Vasudev Prasad (PW. 11), the Tehsildar, Bansur testified that he had issued a notice to Mahadev deceased and served it on him on February 22, 1975, in respect of trespass by him on some forest land. This circumstance makes the evidence of PWs. Bhonri, Kamla, and Girdhari and Nihal Singh plausible that Ganga Sahai had taken Mahadev deceased with him on the pretext of taking him to the Tehsil for making an application in respect of the aforementioned notice. 16. Prabhati (PW. 7) who belongs to the village of Jagan accused, testified that he had met Jagan a day or two after the discovery of dead body of Mahadev from the Ajmeripur well and Jagan had confessed to him that they had killed him. 17. More important than the evidence of Prabhati is the evidence of Rajendra Singh, Judicial Magistrate, first class, Behror (PW. 10), who stated that Jagan had made a confession (Ex.P/6), before him and that he had recorded it strictly in accordance with the provisions of section 164 Cr.P.C. It will be seen that Jagan who was arrested on March 10, 1975, was sent to the judicial lock up on March 18, 1975. The Magistrate deposed that Jagan was produced before him from the judicial lock-up on March 20, 1975 and that he did not record his statement that day so that he could further deliberate in the matter. The Magistrate deposed that Jagan was produced before him from the judicial lock-up on March 20, 1975 and that he did not record his statement that day so that he could further deliberate in the matter. As ordered by the Magistrate Jagan was again produced before him on March 21, 1975 at 12 Doon and he gave him further time to deliberate and it was only at 12.30 p.m. that the learned Magistrate recorded the confession (Ex P/6) in which Jagan made a clean-breast of the crime stating that Ganga Sahai and Mahadev deceased had spent the night before the day of murder at his residence and that all three of them had left his house together the following day. He further stated that they took liquor at about 7 p.m. While Mahadev deceased lay asleep, Ganga Sahai set over his chest and asked him to hold the deceased by his legs. He further stated that while he secured the deceased from his legs, Ganga Sahai gave lathi blows on his head. Mahadev died on the spot. Both of them lifted the dead body and threw it into the well. 18. We are fully satisfied that the aforementioned confession had been voluntarily made by Jagan and that it is true. Its truth stands materially corroborated by the evidence of PWs. Bhonri, Kamla, Girdhari, Prabhati and Nihal Singh. 19. The motive of the crime also stands proved on record. PWs. Bhonri, Kamla, Girdhari have testified that there were frequent quarrels between Ganga Sahai and Mabadev deceased over land. It appears that Ganga Sahai had been insisting that Mahadev give some land to him and that Mahadev was not agreeable to it. That is why Ganga Sahai decided to kill Mahadev. 20. It is thus proved beyond reasonable doubt that Ganga Sahai inflicted the fatal blow on the left side of the head of the deceased causing fracture of the mastoid process and middle cranial fossa Mahadev died due to this injury. That is why Ganga Sahai decided to kill Mahadev. 20. It is thus proved beyond reasonable doubt that Ganga Sahai inflicted the fatal blow on the left side of the head of the deceased causing fracture of the mastoid process and middle cranial fossa Mahadev died due to this injury. Ganga Sahai is thus clearly guilty of an offence punishable under section 302 l.P C. Jagan who caught hold of the deceased by his legs and thus facilitated the infliction of the fatal injury by Ganga Sahai is guilty of an offence punishable under section 302 read with section 34 I.P.C. It is clear on the evidence on record that he shared the common intention of Ganga Sahai to kill the deceased. We are conscious of the fact that the charge framed against Jagan does not mention section 34 I.P.C. in it. This did not however in any way prejudice the accused. 21. For all these reasons, we hold that Ganga Sahai was rightly convicted and sentenced under section 302 I.P.C. Jagans conviction however must be altered from section 302 I.P.C. to section 302 read with section 34 I P.C. His sentence of life imprisonment is maintained converting the same to one under section 302-34 I.P.C. 22. In conclusion this appeal fails and is dismissed except to the minor extent indicated above.Appeal Dismissed. *******