JUDGMENT 1. - The Sessions Judge, Sri Ganganagar. by his judgment dated 12.8.1974, convicted Panna Ram, Har Chand, Ram Chand and Surjaram under Sections 302/- 34 and 394/397, I.P.C., and sentenced each of them to imprisonment for life of each count. Both the sentences were ordered to run concurrently. 2. The prosecution case, in brief, is that the aforesaid four accused persons, who are Naiks by caste, were residing at Chunawat. The deceased Nathu Ram and his wife Rukma, were residing in their Dhani in the field situated at Chak 34 G.G. Nathuram bad no issue. Nathu Ram's brother Dula Ram, with his family, was residing at Chunawat. Nathu Ram and his wife were seen by Ganpat Ram (P.W. 1) on 26.9.1973. Ganpat Ram's son Madan Lal (P.W. 7) used to go to the Dhani of Nathuram for bringing Lassi. On 27.9.1973 as usual Madan Lal went to the Dhani or Nathu Ram in the morning at about 8. 30 for fetching Lassi. He found both of them lying dead. Rukma's dead body was lying on a cot in the Angan and Nathu Ram's dead body was lying on the floor. Rukma's legs were found cut. He returned back and informed his father Ganpat Ram at about 9.00, a.m. Thereupon Ganpat Ram along with Tulisram Jat, visited the Dhani of Nathu Ram and found both, Nathu Ram and his wife, lying dead. They observed that the legs of Rukma were cut lying separated on the floor and there were injuries with sharp weapons on the head, face and neck on the person of Rukma and Nathu Ram. Ganpat Ram went to the Police Station Chunawat, which is at a distance of two miles from Nathu Ram's Dhani, on 27.9.1973 and lodged a report at about 10.00, a.m. On his report a case under Section 302, I.P.C. was registered by Sadhu Singh, A.S.I. (P.W. 9). He visited the spot. He also called a tracker Pannaram. Footprints of four persons were observed, which went up to the strip of the canal. The foot-prints were not of bare foot, but were such as if the feet were tied with gunny bag or Bui. The moulds of four foot-prints were taken by memo Ex. P/14. He prepared Panchanama Lash Ex. P/4 and Ex. P/5) and Fard Surat Hal Lash (Ex. P/6 and Ex. P/7) and site plan (Ex. P/32) and site notes (Ex. P/32A). The moulds of four foot-prints were taken by memo Ex. P/14. He prepared Panchanama Lash Ex. P/4 and Ex. P/5) and Fard Surat Hal Lash (Ex. P/6 and Ex. P/7) and site plan (Ex. P/32) and site notes (Ex. P/32A). A Lathi was found on the neck of the dead body of Rukma lying on the cot and a Musal was also found near her cot. The bedding underneath the dead body of Rukma, Lathi (Art. 9) and Musal Article 10) were seized. The articles on the cot of Nathu Ram were also seized, although his body was found beneath the cot. Another Lathi (Art. 5) was also seized. Dr. M.P. Agarwal (P.W. 11) conducted the autopsy on the dead body of Nathu Ram and Rukma at the Dhani of the deceased in Chak 23 G.G. After post mortem examination, the clothes of both the deceased were seized. The accused Ram Chand was serving as Siri with Ram Chand (P.W. 4). On 5.10.1973 the accused Ram Chand with his father came to the house of the witness Ram Chand and the accused Ram Chand told the witness Ram Chand that he along with Panna Ram, Suraj Ram and Har Chand, had committed the murder of Nathu Ram and his wife for the sake of ornaments. For the arrest of the accused persons, Sadhu Singh, A.S.I., sent the police and they were brought to the Police Station, Chunawat on 5.10.1973 and their arrest was effected at about 5.00, p.m. At the time of their arrest of the accused, Panna Ram, blood was observed on his Chadar and shirt. Both of his clothes were seized and packed and sealed vide seizure memo Ex. P/21. Similarly, blood was found on the Chadar and shirt of the accused Surjaram, which were also seized vide memo Ex. P/23. Chadar of the accused Ram Chand was also found blood stained, so it was seized vide memo Ex. P/25. Blood was also observed on the Chadar and shirt of the accused Har Chand, which were also seized vide memo Ex. P/27. All the four accused persons gave information in respect of ornaments on 6-10-1973. The accused Ram Chand gave information Ex. P/35 in respect of golden Bujli and the Murat of Hanumanjee. Surja Ram also gave information Ex. P/36 in respect of golden Bujli. Panna Ram and Harchand gave information Ex. P/33 and Ex. P/27. All the four accused persons gave information in respect of ornaments on 6-10-1973. The accused Ram Chand gave information Ex. P/35 in respect of golden Bujli and the Murat of Hanumanjee. Surja Ram also gave information Ex. P/36 in respect of golden Bujli. Panna Ram and Harchand gave information Ex. P/33 and Ex. P/34 in respect of two silver Karlas. All therefore accused persons of their information, got the aforesaid ornaments recovered vide memos Ex. P/28 of Ram Chand Ex. P/29 of Surja Ram, Ex. P/30 of Panna Ram Ex. P/31 of Har Chand. Blood was detected on these ornaments, so at the time of their seizure, they were packed and sealed. The accused Panna Ram also gave information on 7-10-1973 in respect of Gupti and its sheath (Ex. P/37) and on 12-10-1973 the accused Ram Chand gave information Ex. P. 38 in respect of Gandasi. Information regarding one Toncha was also given by Panna Ram on 20-10-1973 vide memo Ex. P/42. These accused persons got these articles recovered. Gandasi stained with blood was recovered on 14-10-1973 vide seizure momo Ex. P118. The Sheath of the Gupti was recovered on 7-10-1973 vide seizure memo Ex. P/17 and blood stained Gupti was recovered on 10-10-1973 vide memo Ex. P/16 and Toncha was recovered on 20-10-1973 vide memo Ex. P/15. The blood stained articles were sent for chemical examination. On chemical examination; blood was detected on the shirt and Chadar of the accused Harchand and on Chandar of accused Surja Ram Blood was further detected on both the silver Karlas and both the golden Bujlis and on the Murti, Gandsi and Gupti. The quantity of blood on the clothes of Harchand and on the chadar' of Surja Ram and on the Bujlis and Murti and Gupti was considered too small to be forwarded to the Serologist for Serological examination. On Serological examination, human blood was detected on the two silver Karlas and Gardast, but blood grouping could not be done for the reasons stated in the report of the Serologist. Investigation was conducted from the witnesses. After completion of investigation, charge-sheet was presented against all the four accused persons and the accused persons and the accused persons were ultimately tried by the learned Sessions Judge, Sri Ganga Nagar, for the offences under Sections 302 and 39 4 and 397, IPC. Investigation was conducted from the witnesses. After completion of investigation, charge-sheet was presented against all the four accused persons and the accused persons and the accused persons were ultimately tried by the learned Sessions Judge, Sri Ganga Nagar, for the offences under Sections 302 and 39 4 and 397, IPC. At the trial the prosecution examined PW I Ganpat Ram, PW 2 Dula Ram, PW 3 Bhagirath. PW 4 Ram Chand, PW 5 Ram Kumar, PW 6 Mani Ram, PW 7 Madan Lal, PW 8 Sant Ram, PW 9 Sadhu Singh, PW 10 Parbhu Singh, PW 11 Dr. M.P. Agarwal, PW 12 Panna Ram, PW 13 Murlidhar Sharma, and, PW 14 Ajit Krishan. The accused persons in their statements denied the prosecution case. In defence Chuni Ram, the father of the accused Ram Chand, was examined, as DW 1. The learned Sessions Judge, after hearing the arguments, convicted and sentence the accused persons. as aforesaid. The learned Sessions Judge relied on the evidence of PW 3 Bhagirath, who is said to have seen the accused persons on the night of the occurrence at about 12 or 12 15, a.m., on the L.L. minor canal. Reliance was also placed on the evidence of Ram Chand (PW 4) to whom the accused Ram Chand had made the extra-judicial confession. Reliance was further placed on the recovery of the four ornaments and also on the recovery of Gupti, upon information and at the instance of the accused Panna Ram. On the rest of the circumstances, no reliance, was placed. Dissatisfied with the convictions and the sentences, all the four accused persons have preferred this appeal. After filing of the appeal, accused Ram Chand has expired. 3. We have beard S.R. Singhi, learned counsel for the appellants. and Shri Niyazuddin Khan learned Public Prosecutor, for the State, assisted by Shri Bal Krishna Chauhan, learned council for Shri Dularam, brother of the deceased Nathuram. 4. Dr. M.P. Agarwal, who conducted the autopsy on the dead bodies found the following injuries on the person of the deceased:-NATHU RAM:- (1) Abrasion 5"x linear (obliquely transverse) on the back of the chest lower part. More of abrasion was situated on right sides of the chest. (2) Abrasion l1/2" x 1/2" on the back of the chest right side lower part ⅔" above the injury No. 1. More of abrasion was situated on right sides of the chest. (2) Abrasion l1/2" x 1/2" on the back of the chest right side lower part ⅔" above the injury No. 1. (3) Abrasion 1/2" x ⅓", 1/2" x 1/4" and 2"x ⅛" on the right lateral of the chest/lower part. (4) Abrasion with bruise (oblique) 71/2"x 11/2" on the right scapular region. (5)Incised wound 11/2" x l"x 11/2" on the dorsal aspect of right shoulder joint with communicated fracture of the neck and upper one third on right humerus. Direction of the wound was along with the exis of the arm. (6) Abrasion 21/4" x 1/2" (oblique) and 51/2" x 1/4" (oblique) on the right lateral and anterior part of the chest lower half. (7) Incised wound 21/4" x 1/4" bone deep (obliquely vertical) on the right post suxicular (mastoid) region. (8) Incised wound (transverse) 51/2" x l1/2"x bone deep on the anterior aspect of neck on sub-andibular area. More of the wound on the right side. (9) Incised wound 5"x1"x bone out (transverse) on the left body amdible along its length. (10) Lower jaw fractured with lower 4 incisions and 2 canion (six teeth) loose and laceration of gums. (11) Abrasion 2"x linear (transversely oblique) on the front of neck left side. (12) Incised wound 1/4" x ⅛"x2" (transverse) on the right side of the front of neck. (13) Abrasion 11/4" x 1/2" on the superior aspect of right shoulder joint. (14) Incised wound 1"x 1/4"xbone deep on the dorso medical aspect of the upper end of right near armpit. (15) Incised wound 1"x ⅔"x bone deep on the medial aspect of the upper end of right arm near the armpit. (16) Incised wound 1/4" x 1/2"x bone deep/(rib) (slanting" medially) on the right epigastric region just below rib margin near midline. CRANIUM AND SPINAL CORD 1. Scalp, skull and vertebras: 2nd cervical vertebra cut upto 1/4" depth anteriory. 2. Megbrances: Congested slightly. THORAX: There was transversely placed subcuteneous hematoma all over the anterior aspect of neck. Trachea and oesophagus were cut above hyoid bone. Hyoid bone was fractured. Plureawas congested. Both the lungs were congested all over except the upper lobes. ABDOMEN: Cesophagus cut above the level hyoid bone. 5. According to Dr. Agarwal, the cause of death was injury on neck with section of trachea and oesophagus along with multiple injuries, haemorrage and shock. Trachea and oesophagus were cut above hyoid bone. Hyoid bone was fractured. Plureawas congested. Both the lungs were congested all over except the upper lobes. ABDOMEN: Cesophagus cut above the level hyoid bone. 5. According to Dr. Agarwal, the cause of death was injury on neck with section of trachea and oesophagus along with multiple injuries, haemorrage and shock. In his opinion injury No. 8 alone was sufficient to cause death and injury No. 8 could be caused by Gandasi (Art. 19). Injuries No. 5, 7, 9, 10, and 14 could be caused with Gandasi (Art. 19) and injuries No. 14, 15 and 16 could be caused with Gupti or Gandasi.RUKMA : 6. Both the feet cut completely just above ankle joints postmortem and lying separately from the body. (1) Right middle, ring and little fingers cut at with one transverse incised wound on dorsal aspect at M.P. joints 21/2" x 3/4"x fingers cut. (2) Incised wound 3"x ⅞"xbones and tendens cut (oblique) on the dorsum of right wrist. (3) Incited wound 11/2" x 1/2 "x ulna cut (oblique) on the dorsum of the lower one third of right forearm just above wrist. (4) Incised wound 1/2" x 1/4"x tissue deep (oblique) on upper one-third of dorsal aspect of right forearm. (5) Bruise with abrasion 11/4" x 1/4" on the anterior aspect of right shoulder (transverse). (6) Incised wound 31/2" x 1/2"x bone cut (antro posterior) on the right termporal region ⅔" above the right ear from supra mastoid region to 1/4" beyond the outer angle of right eye. (7) Incised wound l1/2"x 1/4,"x bone cut on the right axillary prominence just below the outer half of right eye (transverse). (8) Incised wound 6"x 1/4"x bone cut (transverse) on the right side of face with ear cut at tragus and posterior border of pinna was also cut. (9) Incised wound 3/1/2"x 1/2 on the right side of neck behind the angle of mendible 1/2 below the ear. (10) Incised wound 1"x 1/2"x bone cut (obliquely transverse) the right side of chin. (11) Incised wound (obliquely transverse) l1/2"x 1/4"x 1/2" on the right side of back of neck just below injury No. 9. (12) Incised wound (obliquely transverse) l1/4"x 1/4"x bone deep on the forehead just on right to midline. (13) Incised wound (transverse) l1/4" x 1/2"x bone deep on the right side of neck. (11) Incised wound (obliquely transverse) l1/2"x 1/4"x 1/2" on the right side of back of neck just below injury No. 9. (12) Incised wound (obliquely transverse) l1/4"x 1/4"x bone deep on the forehead just on right to midline. (13) Incised wound (transverse) l1/4" x 1/2"x bone deep on the right side of neck. (14) Abrasion 2"x linear (transverse) on the front of neck right side at the level of hyoid bone. (15) Abrasion 4"x linear (transverse) on front of neck and right side of neck 1" below injury No. 14. (16) Bruise 3"x 1/4" (transverse) on the right subrandibuler region and below the chin. (17) There is bleeding from the right ear. (18) Both feet amputated at ankle joints (post-mortem). CRANIUM AND SPINAL CORD. Under external injury No. 8 right temporal bone is cut along with the underlying part of membranes and the right temporal lobed. There is intracrenial haemorrhage in the right middle cranial fossa. Membranes and brain slightly congested. THORAX: There was sub-cutaneous haemorrhage on the neck under the injuries mainly on right side. ABDOMEN: Abdominal cavity was fully of dark fluid and clotted blood. Paritoneum was congested. Stomach was nearly half of partially digested food material. Right lobe of liver was ruptured posterioly, Congested. According to Dr. Agarwal, the cause of death of Smt. Rukma was injury to head and abdomen with intracranial and intra-abdominal haemorrhage associated with multiple injuries with haemorrhage and shock. Injuries Nos. 5 and 16 were caused with blunt weapon. Injury No. 8 alone was sufficient in the ordinary course of nature to cause death and the repture of liver was also sufficient to cause death. 7. It is to be seen as to whether them is sufficient and satisfactory evidence on record to connect the accused persons with the commission of the offence, of which they have been convicted.1. EXTRA - JUDICIAL COMMISSION TO P.W. 4 RAM CHAND: 8. It may be stated that there is no direct evidence in this case and the case is wholly based on circumstantial evidence. The most material evidence in the case is the statement of Ram Chand (P.W. 4), who has deposed about the extra-judicial confession made to him by the accused Ram Chand. The accused Ram Chand was the Siri of PW 4 Ram Chand. The most material evidence in the case is the statement of Ram Chand (P.W. 4), who has deposed about the extra-judicial confession made to him by the accused Ram Chand. The accused Ram Chand was the Siri of PW 4 Ram Chand. He, along with his father, went to the witness Ram Chand and disclosed to him that he along with the other three accused persons had murdered Nathu Ram and his wife. On 5-10-1973, when the accused Ram Chand visited the house of the witness Ram Chand, he first disclosed that Pandits have been killed by them, so they may be protected. Thereupon, the witness Ram Chand asked the accused Ram Chand to disclose the true facts. On this such a confession was blurted out by him that he along with Panna Ram, Surja Ram and Har Chand, had killed Nathu Rain and his wife. Thereafter, the witness further asked as to whether there was any enmity. Thereupon he told that there was no enmity with the Pandits, but the murder as committed for the sake of ornaments. According to the witness, even after the murders, the accused Ram Chand continued to work at his field and he did not observe any blood on the clothes of the accused Ram Chand in the days after the murders. With regard to the father of the accused, the witness stated that he simply told before the confession was made by the accused that he may ask Ram Chand as to what he says. According to witness he took the accused Ram Chand to the police to produce him there. His own statement was recorded by the police at the Police Station at about 3.00, p.m., and the accused came to his house at about 10-11.00 a.m. The accused was produced before Sadhu Singh. A.S.I. 9. Shri S.R. Singhi, learned counsel for the appellant submitted that there was no reason for the accused to have visited the house of P.W. 4 Ram Chand. The evidence of P.W. 4 Ram Chand appears to have been cooked up and his testimony is unreliable in view of the fact that Sadhu Singh, A.S.I. (P.W. 9) does not support the version of P.W. 4 Ram Chand that the accused Ram Chand was produced by P.W. 4 Ram Chand before him at the Police Station on 5.10.1973. The evidence of P.W. 4 Ram Chand appears to have been cooked up and his testimony is unreliable in view of the fact that Sadhu Singh, A.S.I. (P.W. 9) does not support the version of P.W. 4 Ram Chand that the accused Ram Chand was produced by P.W. 4 Ram Chand before him at the Police Station on 5.10.1973. According to Sadhu Singh, all the accused persons were sent for and they appeared at the police station on being called on 5.10.1973 and at about 5.00 p.m., their arrest was effected. The testimony of Ram Chand also stands contradicted by the testimony of Dule Ram (P.W. 2), who has deposed that when the accused persons were brought at the police station by the S.H.O., the witness Ram Chand also came with them. He had visited the police station in order to know about the persent case and at that time the police had brought the accused persons in his presence. The S.H.O. Sadhu Singh had brought them from outside the police station at the police station. Mr. Singhi urged that if the statement of Ram Chand (P.W. 4) regarding the production of the accused Ram Chand at the Police Station, Chunawat, ie viewed in the light of the statement of Sadhu Singh (P.W. 9) and Dula Ram (P.W. 2), it would be evident that the witness Ram Chand has made a false statement that he produced the accused Ram Chand. Mr. Singhi, further pointed out that the witness has disowned portions A to B and C to D of his police statement Ex. D./2, in which portions he stated that the accused said that silver and golden ornaments were brought, which they have shared amongst themselves and the ornaments of his share are lying at his house. One pair Karlas of silver, one pair of golden Bujlis and golden Murat were brought by them, which had been divided. One golden Bujli and one Golden Murat is with him. With regards to these portions the witness stated that such a statement was not given by him to the police. He was also contradicted with his police statement Ex. D/2 with regard to the omission in his police statement, where it does not find mention that he asked the accused Ram Chand as to whether he had any enmity with the Pandits. He was also contradicted with his police statement Ex. D/2 with regard to the omission in his police statement, where it does not find mention that he asked the accused Ram Chand as to whether he had any enmity with the Pandits. Thereupon, the accused Ram Chand told him that they had no enmity and the murders had been committed for the sake of ornaments. For this omission, the witness replied that he made such a statement to the police. The police may not have recorded the same. The witness also denied to have stated portion E to F in Ex. D/2 that he will return the ornaments. He may get the matter settled and the police is making search for them. 10. The question arises as to whether the testimony of PW 4 Ram Chand deserves to be completely discarded on the basis of the contradictions and omissions, referred to above ? So far as the contradictions and omissions with reference to his police statement Ex. D/2 are concerned we are of the opinion that the alleged contradictions and omissions, in our opinion, did not in any way affect the testimony of the witness. The details of the ornaments may have or may not have been stated by the witness to the police. From the perusal of the statement, of course, it can be found that the motive for murder given by the accused, was ornaments. But this statement of the witness does not appear to be true that he produced the accused Ram Chand at the police station soon after blurting out of the confession by him at the house of the witness. If the statement of the witness is considered in the light of the statement of Dula Ram, it may be that the witness had brought the accused afterwards and it is on that basis, the witness may have stated that he produced the accused Ram Chand at the police station. The discrepancy in hi s statement with regard to production of the accused, does not appear to be such on the basis of which the main testimony of the witness may be discarded. PW 4 Ram Chand is the employer of the accused Ram Chand. There was no reason for the witness to have come out against the accused with such a version falsely. PW 4 Ram Chand is the employer of the accused Ram Chand. There was no reason for the witness to have come out against the accused with such a version falsely. It appears that when there was a suspicion against the accused persons, the accused Ram Chand approached PW 4 Ram Chand. By that time no arrests were effected, but the occurrence had taken place on the night intervening 26 and 27-9-1973 and a report had already been lodged on 27-9-1973 at 1.00 a.m. It is only after the visit of Ram Chand (PW 4) at the police station, the accused persons were arrested the same day. It appears that the accused persons came to be arrested after PW 4 Ram Chand appeared before the police with the aforesaid version of the accused Ram Chand. In our opinion, the evidence of PW 4 Ram Chand is trustworthy and can be acted upon and it does not appear to be a concocted and cooked up evidence. It is quite probable that the accused being the Siri of PW 4 Ram Chand may have gone to him and divulged that had taken part at his hands and at the hands of the other accused persons. Mr. Singhi cited the State of Punjab v. Bhajan Singh and others ( AIR 1975 SC 258 ) , Mohan Lal v. State (1983 RLW 418) , Balvendra Singh v. State of Rajasthan (1983 RLW 38) , Haramba Brahma and another v. State of Assam (1983 (S.C.C. (Cri) 40) . In the last case, relying on Rahim Beg v. State of U.P. (1972 S.C.C. (Cri.) 827) it was observed that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed. In our opinion, in the present case we find that the tests are satisfied in the testimony of PW 4 Ram Chand. As regards the requirement of reproduction of exact words we may profitably refer to a decision of the Supreme Court in Bharwade Bhoginbhai Hirjibai v. State of Gujarat ( AIR 1983 SC 753 ) , wherein it has been observed as under:- "By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder." We may mention that reliability of the evidence of extra-judicial confession, in our opinion, depends on the facts and circumstances of each individual case and in the present case we are impressed by the testimony of Ram Chand. It was probable for the accused to have approached the witness and what has more weighed with us is that the accused persons came to be arrested only after giving out of the said version to the police by P.W. 4 Ram Chand. In defence Chuni Ram (D.W. 1), the father of the accused Ram Chand has appeared. Being interested in the accused, his evidence has been rightly rejected by the learned trial judge. Further it would be an independent question bow for the evidence of P.W. 4 Ram Chand can be availed of by the prosecution, even against the three accused persons, who are not the makers of such a confession. Whether the confession made by the accused Ram Chand, can be considered against the accused Panna Ram, Surja Ram and Har Chand, is a question, which we will independently examine. For the time being we hold that the evidence of Ram Chand is reliable and can be acted upon.2. THE EVIDENCE OF BHAGIRATH (P.W. 3): 11. The next important evidence in the case is the evidence of Bhagirath (PW 3). PW 3 Bhagirath has deposed that he saw the four accused persons near the Dhani of Nathu Ram while they were sitting on canal LL minor in the night at about 12 or 12.15 when he was returning to his village Chunawat from the Dhani of Ganpat Ram after taking his meals. He had gone to the Dhani of Ganpat Ram along with Ganpat Ram at about 9 or 9.30, p.m., on that night. He accompanied Ganpat Ram, as he was to borrow money from him. Ganpat Ram had expressed that he will pay him at his Dhani. Although he demanded money at Ganganagar, but Ganpat Ram told him that he will pay him after going to village. According to the witness, he knew all the four accused persons from before. He asked them as to who were sitting. Ganpat Ram had expressed that he will pay him at his Dhani. Although he demanded money at Ganganagar, but Ganpat Ram told him that he will pay him after going to village. According to the witness, he knew all the four accused persons from before. He asked them as to who were sitting. Thereupon, the accused Har Chand gave out the nanes of all the four and Harchand also expressed that they have to come look after the cotton crop. The culvert of L.L. minor, where the accused persons were sitting, was at a distance of about two squares from the Dhani of Ganpat Ram. It was a dark night and he stayed with the accused persons for about 4-5 minutes and he took Biri and match stick from them. Nathu Ram's Dhani was at a distance of one square from that culvert. 12. The testimony of this witness has been assailed on the ground that the statement of this witness was recorded as late as 7-10-1973. Besides that, as it was a dark night, it was not possible for the witness to have identified the accused persons and if the witness know the accused persons from before there was no reason for the witness to have asked as to who were sitting and there was no occasion for the accused Har Chand to have given out the names of all the four. The testimony of this witness was also assailed on the ground that it does not find mention in his police statement Ex. D/1 that the witness stayed with the accused persons for 4-5 minutes and took Biri and match back from them and that he asked Harchand as to who were there. Thereupon, Har Chand gave out the names of the four accused persons. There is also no mention in his police statement that he had seen the Gandasi lying near the accused persons. On the basis of these omissions, it is urged that the witness is not reliable and more over he appears to be a casual witness. It is also pointed out that the witness has not given out the names of those persons from whom he learnt about the occurrence in the evening of 6-10-1973 and he has also not given out the names of those to whom he disclosed this that he had seen the accused persons sitting near the culvert. Mr. It is also pointed out that the witness has not given out the names of those persons from whom he learnt about the occurrence in the evening of 6-10-1973 and he has also not given out the names of those to whom he disclosed this that he had seen the accused persons sitting near the culvert. Mr. Singhi pointed out that Sadhu Singh, A.S.I., has not stated as to how he happened to trace the name of this witness. It was the duty of the prosecution to have disclosed the source from which the name of this witness came to the notice of the investigating officer, which, according to Mr. Singh, is a serious infirmity in the case and is sufficient to discredit the testimony of this witness. It is nothing, but a.padding done by the investigating officer. He referred to a decision Feroze v. Emperor (AIR 1930 Lahoure 659) , wherein at page 662 it has been observed that a very serious defect in this case has been the omission of the prosecution to show how the investigation proceeded step by step and bring out in evidence the manner in which the various witnesses were traced. 13. We have considered the criticism, which has been levelled against the testimony of the witness Bhagirath. It is signigicant to note that this part of the statement of Bhagirath has not been challenged that the witness did know the accused persons from before. As it was a dark night, so it was natural for him to have asked as to who were sitting. This, must have been asked by the witness, when he may be at some distance of the accused persons and at that time there is nothing unnatural and improbable that the accused Har Chand gave out the names of the co-accused. The omissions, which have been pointed out in the statement of this witness, in our opinion, are not very material. For how long he stayed and whether he took Biri and match-stick from them and whether he saw any Gandasi lying near the accused persons, are matters of details, which may not have been given out to the police. No contradictions have appeared in his testimony with regard to observance and identity of the accused persons. For how long he stayed and whether he took Biri and match-stick from them and whether he saw any Gandasi lying near the accused persons, are matters of details, which may not have been given out to the police. No contradictions have appeared in his testimony with regard to observance and identity of the accused persons. The witness has stated the purpose for which he went to the Dhani of Ganpatram and he returned from Dhani after borrowing a sum of Rs. 200/- from him. The most material criticism against the testimony of this witness is that his statement was recorded on 7-10-1973. In this regard the statement of the witness appears to be credible as he has stated that on the next morning, that is, on 27-9-1973 in the morning he had gone to Tejakhera in Haryana to meet his material uncle. He returned from Tejakhera at 4.00, p.m. on 6-10-1973 and he learnt about the occurrence in village Chunawat at that time & at that time he had dislosed to many persons in the village that he had seen the accused persons near the culvert on that night. It would appear from his statement that upto 6-10-1973, he was not in the village, so his statement could not recorded and on the next day, that is, on 7-10-1973 he was called by the police and his statement was recorded in the morning. It is true that ASI Sadhu Singh has not given out how he traced the name of this witness. No question was put to the A.S.I Sadhu Singh in this regard. If any question would have been put to him, he would have been in a position to look into the case diary and tell the court as to how he came to know of the name of this witness. We have looked into the case diary, from which it appeared that the name of this witness was given out by the accused persons, when they were interrogated on 6-10-1973. But Mr. Singh, learned counsel for the appellants, urged that such assistance cannot be taken from the case diary. The aid or assistance of the case diary can be taken by any criminal court during, inquiry and trial under Section 172(2), Cr. But Mr. Singh, learned counsel for the appellants, urged that such assistance cannot be taken from the case diary. The aid or assistance of the case diary can be taken by any criminal court during, inquiry and trial under Section 172(2), Cr. P.C., only with a view to elucidating and clarifying certain points, but the assistance of the case diary cannot be taken by way of evidence of any date, fact or statement contained in the diary. Reference was made in this connection to a decision of the Privy Council in Dal Singh v. King-Emperor ( AIR 1917 P.C. 25 ) and Habeeb Mohammed v. State of Hyderabad ( AIR 1954 SC 51 ) . Even if police diary cannot be called in aid for finding out the source of knowledge about the witness Bhagirath, still, in our opinion, the testimony of PW 3 Bhagirath does not in any way lose its weight and value. The witness has given a satisfactory explanation of his absence from the village with effect from 26-9-1973 to 6-12-1973 and he immediately reacted when he came to know of the occurrence in the evening of 6-10-1973. It is true that he has not been able to give out the names of those persons to whom he disclosed that he had seen the accused persons sitting near the culvert. On that basis his statement cannot be taken to be false, that he disclosed the fact that he saw the accused persons. When he disclosed to a number of persons, he may not have been able to give out their names. His statement was recorded after about seven months on 13-5-1974. Thus, we find that the testimony of this witness is believable and on the basis of his testimony, this circumstance is well proved and established that the accused persons were 1 seen at the culvert of L.L. minor canal at a distance of about one square from the Dhani of Nathuram.3. RECOVERY OF BLOOD-STAINED ORNAMENTS : 14. This is another most material circumstance appearing in the case connecting the accused persons with the commission of offences. After the arrest of the accused persons on 5-10-1973 they gave information with regard to ornaments and in pursuance of those information, two silver Karlas and two golden Bujlis and one golden Murat were recovered. All the four accused persons give information on 6-10-1973. Panna Ram gave information (Ex. After the arrest of the accused persons on 5-10-1973 they gave information with regard to ornaments and in pursuance of those information, two silver Karlas and two golden Bujlis and one golden Murat were recovered. All the four accused persons give information on 6-10-1973. Panna Ram gave information (Ex. P/33) at about 8.00, a.m., on 6-10-1973 in respect of one silver Karla, Har Chand gave information (Ex. P/34) in respect of another silver Karla at about 8.15, a.m., on 6-101973, the accused Ram Chand gave information (Ex. P/35) at 8.30, a.m., on 6-10-1973, in respect of golden Bujli of a ear and one golden small Murat of Hanumanji and the accused Surja Ram gave information (Ex. P/36) at 8.45, a.m. on 6-10-1973, in respect of golden Bujli of one ear. According to the information of Har Chand, Ram Chand and Suraja Ram, the ornaments were concealed by them wrapped in a cloth in an earthen pot and according to Panna Lal he had concealed the silver Karlas beneath a gunny bag wrapped in a cloth in north west corner of his residential Kothla. In pursuance of these information the accused persons got these ornaments recovered. Vide recovery memo Ex. P/28 of Bujli and Murat by Ram Chand on 6-10-73 at 9.15, a.m. vide Ex. P/29 of Bujli by Surja Ram at 9.30 a.m., on 6-10-1973; vide Ex. P/30 silver Kadla by Panna Ram at 9.45, a.m., on 6-10-1973; and vide Ex. P/31 Silver Kadla by Harchand at 10.30, a.m., on 6-10-1973. All the ornaments were weighed and were packed and sealed. All the ornaments were found stained with blood. The sealed packets of the ornaments were sent for chemical and serological examinations. On chemical examination, all the ornaments and the Murat were found stained with blood and on Serological examination, the two silver Kadlas were found stained with human blood. The accused persons have simply denied the recoveries and D.W. 1 Chuni Ram, the father of the accused Ram Chand, denied the recoveries from their house. The recoveries are amply proved from the statements of Sadhu Singh, A.S.I., and the statements of their attesting witnesses, namely, Dula Ram (P.W. 2) and Nani Ram (PW 6). No doubt Dula Ram is the real brother of the deceased Nathu Ram, but Mani Ram (PW 6) is Jat by caste and is a Sarpanch of village Chunawat. Mani Ram is an independent witness. No doubt Dula Ram is the real brother of the deceased Nathu Ram, but Mani Ram (PW 6) is Jat by caste and is a Sarpanch of village Chunawat. Mani Ram is an independent witness. The witnesses have stated that after effecting recoveries of the ornaments, the ornaments were packed and sealed by the police. All the four ornaments were further identified to be that of the deceased Rukma by the witnesses Sant Ram (PW 8), who has deposed that the ornaments belonged to his sister Mst. Rukma. The prosecution has also produced Ram Kumar (PW 5), who has proved that Sant Ram got the silver Kadlas, golden Bujlis and Murat prepared from him. He has identified those ornaments to have been prepared by him and after preparation they were delivered to Santram. Golden Bujlis are Articles 29 and 27, Silver Kadlas are Articles 30 and 31 and golden Murat is Article 28. Mani Ram has also deposed that when the articles were shown to him he identified that these articles were recovered from the possession of each of the accused in pursuance of their information. 15. With respect to these recoveries it has been vehemently urged that the recoveries are all fake and appear to be planted. It is un-understandable that the three accused persons would conceal the ornaments uniformly in the earthen pots. This circumstance shows that they had been planted. Besides that, the residential Kothas are not in the exclusive possession of the accused persons. In this connection suffice it to say that there is nothing unusual in concealing the ornaments in earthen pots and on the basis of the recovery from the earthen pots, it cannot be found that the recoveries are planted one. The information, which the accused persons have given, are in the first person. Sadhu Singh, A.S.I., has deposed that each of the accused persons informed that he has concealed the particular ornament at a particular place. That shows that the act of concealing is on the part of each individual accused, so the accused had the exclusive knowledge of concealing of the ornaments, so on that basis nothing would turn on the fact that the residential Kothas are also in possession of the other family members of the accused. 16. That shows that the act of concealing is on the part of each individual accused, so the accused had the exclusive knowledge of concealing of the ornaments, so on that basis nothing would turn on the fact that the residential Kothas are also in possession of the other family members of the accused. 16. It is further contended on behalf of the appellants that it is not proved that the ornaments were on the person of the deceased Rukma at the time of the incident and that there is no statisfactory evidence on record that the ornaments belonged to the deceased. No test identification parade was held in respect of the ornaments, so it should not be found that the ornaments belonged to the deceased Rukma and that they were on her persons. 17. It is true that no test identification parade had been held in respect of the ornaments in this case and it appears that when the sealed packets were sent for chemical examination, the packets were unsealed and chemical examination must have taken sufficient time, so test identification parade could not be held. But the witnesses have identified the ornaments in Court. There is no reason to disbelieve the testimony of Sant Ram, who has identified the ornaments to be that of his sister Rukma. as the same were got prepared by him from Shankar Sunar and Ram Kumar, the son of Shankar Sunar. He has denied that the ornaments were shown to him at the police station. We have already stated that the recovered articles present in the Court, have been identified to be the same, which had been recovered from each of the accused by the witnesses Dularam, Mani Ram and Sadhu Singh. It is true that there is no evidence that immediately before the incident, the ornaments were on the person of the deceased Rukma, but the circumstance relating to nature of injuries on the person of Rukma amply indicate that the ornaments must be on her person. Her ankles were cut and separated and her ear was also cut. The nature of injuries on her person tells the story that these injuries were caused with a view to remove the ornaments from her person. Her ankles were cut and separated and her ear was also cut. The nature of injuries on her person tells the story that these injuries were caused with a view to remove the ornaments from her person. So it can be found from the nature of the injuries and the extra-judicial confession of Ram Chand be found from the nature of the injuries that the ornaments were removed from her person after inflicting such injuries. 18. It has further been urged by Shri S.R. Singhi, learned counsel for the appellants, that in the present case no evidence has been led by the prosecution that the sealed packets remained in tact and were not tampered with. A.S.I. Sadhu Singh has simply stated that the sealed packets were kept at the Malkhana of the police station and no body tampered with the seals till they remained at the police station. The prosecution has not led evidence on the point as to when the packets were taken away from the police station and when they were delivered at the Forensic Science Laboratory and who carried them and what was the condition of the seals. In the absence of such evidence, this circumstance cannot be employed against the accused persons that the ornaments were stained With blood. In this connection he has referred to the decisions in The State v. Motia (1953 R.L.W. 640) and The State v. Banwari (1959 R.L.W. 196) . 19. It may be stated that in this regard no cross-examination has been directed with respect to the statement, 'which has been given by Sadhu Singh (P.W.9). The report of the Forensic Science Laboratory (Ex. P146) shows that the packets received were sealed. When cross-examination has not been directed to the statement of Sadhu Singh, this part of the prosecution case, in our opinion, goes unchallenged. When tampering of seals on the sealed packets has not even been doubted and no suspicion with regard to tampering of seals has been alleged, then, in our opinion, the Chemical Examination report and the Serological examination report cannot be excluded from consideration and from these reports it is proved that all the ornaments and the golden Murat were stained with blood and human blood was detected on the two silver Kadlas. Even if the circumstance that the ornaments and the golden Murat were found stained with blood and Kadlas found stained with human blood is not taken into consideration, still it is amply proved that the accused persons were found in possession of these ornaments and golden Murat, which belonged to the deceased Rukma.4. RECOVERY OF WEAPONS 20. In this case one Gandasi, one Toncha and one Gupti have been recovered on the information at the instance of the two accused persons. On the information and at the instance of the accused Ram Chand Gandasi has been recovered and Gupti along with sheath of the Gupti, have been recovered at the instance of the accused Panna Ram. The learned trial judge has only placed reliance on the recovery of Gupti, which has been found stained with blood and has not placed reliance on the recovery of Gandasi, which has been found stained with human blood. The recovery of Gandasi has not been believed on the ground that it was recovered on 14-10-1973 from the same Kotha, where it was lying in the corner from where, from the earthen pot golden Bujli and Murat were recovered at the instance of the accused Ram Chand on 6-10-1973. In respect of the Gandasi, the information was given by the accused on 12-10-1973, i.e., 6 days after the recovery of Bujli and Murat at his instance. The investigating officer himself has stated that the Gandasi was recovered from the same Kotha, from which the ornaments were recovered and the Gandasi was lying in the corner of that Kotha. He, of course, stated that on the day when he recovered the ornaments, the Gandasi may be there in that Kotha, but he had not seen. In the circumstances, in our opinion, the learned trial judge was justified in ignoring the recovery of Gandasi. But the Gupti was recovered at the instance of the accused Pannaram on 10-10-1973 in pursuance of the information Ex. P/37 dated 7-10-1973. According to this information, the Gupti was thrown by him in the flowing G.G. canal after bending it. The recovery of this Gupti has been proved by Sadhu Singh, ASI. Besides the statement of Sadhu Singh ASI, the recovery of the Gupti is moved by the testimony of Mani Ram (PW 6). It was taken out from the canal by Om Prakash. The recovery of this Gupti has been proved by Sadhu Singh, ASI. Besides the statement of Sadhu Singh ASI, the recovery of the Gupti is moved by the testimony of Mani Ram (PW 6). It was taken out from the canal by Om Prakash. Dula Ram (PW 2) has also stated that Panna Ram got the Gupti recovered on 10-10-1973. A number of villagers had entered into the canal, but it was taken out from the canal by Shri Om Prakash. The Gupti was packed and sealed and was sent for chemical examination and was found stained with blood, but the Gupti was not forwarded for Serological examination, as blood was too small on it. Thus, this circumstance is proved beyond doubt that on the information and at the instance of the accused Panna Ram, blood stain Gupti was recovered.5. RECOVERY OF THE BLOOD-STAINED CLOTHES FROM THE PERSONS OF THE ACCUSED PERSONS : 21. This circumstances has not been found proved by the learned trial Judge and we agree with the view taken by the learned trial Judge. With regard to the recovery of clothes, a doubt has been expressed and rightly so. When according to ASI Sadhu Singh, the other garments of the accused persons were sent for, which were changed by the accused persons. It does not appear to be true and probable that the accused persons would have continued to wear the blood-stained clothes at the time of their arrest, when they were called at the police station, even when they had the other dresses with them. Eight days had already expired by the date they were arrested. So this circumstances that blood stained clothes were recovered from the persons of the accused appears to be highly doubtful. 22. Eight days had already expired by the date they were arrested. So this circumstances that blood stained clothes were recovered from the persons of the accused appears to be highly doubtful. 22. Thus, from the evidence on record the following circumstances stand amply proved:- (1) that the accused persons were seen on the night of occurrence near the place of occurrence by Bhagirath (PW3) : (2) that on the information and at the instance of the accused persons golden and silver ornaments and Murat were recovered from their possession; (3) that all these ornaments and Murat were stained with blood and the silver Kadlas were stained with human blood; (4) that these ornaments and Murat belonged to the deceased Rukma and were on her person ; (5) that the accused Ram Chand made an extra-judicial confession to the witness Ram Chand (PW 4) that he and Panna Ram, Surja Ram and Har Chand murdered Nathu Ram and his wife Rukma for the sake of ornaments; and (6) that the blood stained Gupti was recovered on the information at the instance of the accused Panna Ram. 23. So far as the circumstance of extra-judicial confession is concerned, that can be taken into consideration against the accused persons Panna Ram, Surja Ram and Har Chand only, when from the other evidence on record it is prover that they are guilty of the offence of murder. In the absence of such proof, the confessional statement of the co-accused Ram Chand cannot be used against these three accused persons. as has been held in Haricharan Kurmi v. State of Bihar ( AIR 1964 SC 1184 ) . In that case it has been observed as under:- It would be noticed that a as a result of the provisions contained in S. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must being with other evidence adduced by the prosecution and after it has found its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That briefly stated, is the effect of the provisions contained is S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526 ; ( AIR 1952 SC 159 ) where the decision of the Privy Council in Bhubeni Sahu's case, 76 Ind App 147 ( AIR 1949 PC 257 ) has been cited with approval." xx xx xx xx xxx xx xx xx xx xx "As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of the criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to benefit of doubt." 24. Applying the principles as laid down by the Supreme Court in the above case, in our opinion, from the proved circumstances, offence is clearly brought home to the accused persons Panna Ram, Surjaram and Har Chand and the confessional statement made by the accused Ram Chand provide only an additional assurance to support the conclusion of the guilt of these three accused persons, to which we have arrived at. Had there been simply recoveries of unstained ornaments, the presumption with regard offences of murder robbery perhaps would not have arisen, but in the instant case the ornaments had been found stained with blood and human blood. Coupled with this ciecumstancet there is the circumstance of recovery of blood stained Gupti and further circumstance that the accused persons were seen on the night of the occurrence near the place of the occurrence. Besides that, there is the circumstance of confessional statement made by the accused Ram Chand to the witness Ram Chand (PW 4) So from these proved circumstances, in our opinion, offence of murder and robbery are amply brought home to the appellants and the appellants have been rightly found guilty of the said offences by the learned trial Judge. 25. On account of death of the appellant Ram Chand, his appeal has abated. As regards the appeal of the other accused persons, in our opinion, the same deserves to be dismissed. 26. Accordingly, the appeal of the accused-appellants Panna Ram, Surja Ram and Harchand is hereby dismissed. 27. These accused-appellants are on bail. They shall immediately surrender to their bail bonds. The Sessions Judge, Sri Ganganagar, is also directed to get these accused-appellants arrested and send them to Jail to serve out the sentence awarded to them.Appeal dismissed. *******