JUDGMENT 1. - This is an appeal against the conviction and sentence of the accused appellant Kali alias Kala Singh under Section 302 and 449 Indian Penal Code passed by the learned Additional Sessions Judge No. 1, Hanumangarh by his judgment dated 15-5-1982 whereby accused Kali alias Kala Singh has been convicted under Sections 302 and 449 Indian Penal Code and sentenced to life imprisonment on the first count and 7 years rigorous imprisonment and a line of Rs. 50/- and in default of payment of fine to further undergo 15 days rigorous imprisonment under the second count. Both the sentences were directed to run concurrently. 2. The facts giving rise to this case are that the accused Kali alias Kalasingh and Resham Singh were charged under Section 302 and 449 read with Section 34 Indian Penal Code. A First Information Report Ex.P 3 was lodged by PW 4 Rangasingh at police station Tibi on 7-7-1981 at 9 a.m. It was stated there in that Mst. Ako Bai PW 5 daughter of deceased Shankar Singh resident of Surewala came to him in the morning of 7-7-1981 and informed him that both the accused demanded their money from deceased Shanker Singh which was due from him on account of liquor. Shankar Singh informed them that he will pay the money shortly. This incident took place on 6-7-1981 in the morning near the Rajasthan Canal. In the evening both the accused persons came to the house of Shanker Singh and again demanded the money. This was also witnessed by PW 12 Mst. Banji Bai sister of deceased Shanker Singh who had come to fetch milk from her house. At that time also Shanker Singh assured them that he will return the money. Both the accused left the house of deceased Shanker Singh while herling abuses and threatened him. At night when deceased Shanker Singh along with his daughter Ako Bai after taking their food slept besides each other on their cots both the accused Kali alias Kala Singh armed with iron sabal along with Resham Singh came there, accused Kali gave a sabal blow on the head of the deceased Shanker Singh, as a result he died instantaneously. On account of this commotion PW 9 Ako Bai daughter of deceased Shanker got up and saw both the accused. The accused ran away from that place. On account of this commotion PW 9 Ako Bai daughter of deceased Shanker got up and saw both the accused. The accused ran away from that place. Because of late night she was frightened therefore she could not move out from the house. But in the morning at about 6 or 6.30 a.m. she went to her relation PW 4 Ranga Singh and informed him about the incident. PW 4 Ranga Singh filed FIR at P.S., Tibi and police registered a case and thereafter took up the investigation. The police reached on the scene of occurrence, seized the dead body of deceased and prepared the necessary inspection memos. Both the accused persons namely Kali alias Kalusingh and Resham Singh were arrested. One sabal was got recovered at the instance of accused Kali alias Kala Singh. A case under Section 302 and 449 read with Section 34 Indian Penal Code was registered against both the accused persons and after the close of the investigation the accused persons were sent for trial. Thereafter the case was committed to the court of Sessions for trial. The prosecution examined 13 witnesses and got large number of documents exhibited. The plea of the accused was of total denial. 3. The learned Additional Sessions Judge after due trial convicted the accused appellant Kali alia Kalasingh and sentenced him to life imprisonment under Section 302 Indian Penal Code and 7 years rigorous imprisonment along with fine of Rs. 50/- and in default of payment of fine to further undergo 15 days rigorous imprisonment under Section 449 Indian Penal Code. The learned Additional Sessions Judge, however, acquitted the accused Resham Singh giving him benefit of doubt. The accused appellant Kali alias Kala Singh preferred the present appeal before this Court against his aforesaid conviction and sentence. 4. Mr. Arora, learned for the appellant strenuously urged that in this case there is a single eye-witness namely PW 9. Ako Bai daughter of deceased Shanker Singh and her testimony is not trust worthy. Learned Counsel further submitted that on the testimony of Mst. Ako Bai learned Additional Sessions has acquitted the co-accused Resham Singh for the offences under Section 302 as well as 449 Indian Penal Code. Therefore, her testimony has been rejected in part. Ako Bai daughter of deceased Shanker Singh and her testimony is not trust worthy. Learned Counsel further submitted that on the testimony of Mst. Ako Bai learned Additional Sessions has acquitted the co-accused Resham Singh for the offences under Section 302 as well as 449 Indian Penal Code. Therefore, her testimony has been rejected in part. Learned Counsel also argued that the prosecution has not come with clean hands as the learned Additional Sessions Judge has found the recovery of sabal unreliable. Learned Counsel has taken us to the statement of PW 9 Ako Bai tensively and submitted that there are material contradictions in the statement of PW 9. In her police statement she has not stated whether Kali alias Kala Singh has given a blow on the head of Shanker Singh. 5. We have considered the contention of the learned Counsel and we have gone through the statement of Mst. Ako Bai as well as the statement of PW 4 Rangasingh, PW 10 Baggasingh & PW 13 Datarsingh before whom the accused Kali is said to have made an extra judicial confession. PW 9 Mst. Ako Bai has deposed that both she and her deceased father were sleeping in the house. Accused Kali armed with sabal accompanied with Resham Singh came in the house and gave a blow on the head of the deceased Shanker Singh. She was accused Kali armed with sabal and giving the fatal blow on the head of the deceased. Resham Singh was also standing with him. Because being alone in the house she could not dare to move out for seeking help as she was totally frightened. In the morning she informed PW 4 Ranga Singh. She was confronted with her police statement in which she has deposed that she woke up due to the sound of foot steps of the accused persons. She has not deposed in the police statement that she saw the accused giving sabal blow on the head of the deceased. But she has deposed that she saw the accused armed with sabal accompanied by Resham Singh. 6. After having bestowed our best of the consideration to the testimony of this witness, in cannot be said that the testimony of this witness can be termed as unreliable. But she has deposed that she saw the accused armed with sabal accompanied by Resham Singh. 6. After having bestowed our best of the consideration to the testimony of this witness, in cannot be said that the testimony of this witness can be termed as unreliable. Firstly, we cannot lose sight of the fact that it was night hours and when she saw two persons standing near the cot of her father, accused Kali alias Kala Singh armed with sabal and deceased being lying dead. Both the actions are so closely connected with each other i.e. giving of a blow on the head of the deceased and remained standing armed with sabal near the deceased. In these circumstances, it cannot be said that she has not correcrly deposed the role played by the accused Kali alias Kala Singh. But the fact is that in her police statement also she has categorically stated that accused Kali was armed with sabal and the deceased was lying in the cot with the head injury. In her statement before the court she has of course deposed that the blow was given by accused Kali alias Kala Singh. Both the versions are so-interlinked with each other. The accused armed with sabal, deceased lying dead on the cot on account of the blow on the head. Her testimony is also supported by the medical evidence and according to the testimony of Doctor the deceased died on account of head injury. Doctor PW 1 Bhim Singh has deposed that the deceased has died on account of lacerated wounds 7" X 1-1-2" X brain deep right froato-temporal bony area. Brain matter coming out of the wound. He opined that the injury was sufficient in the ordinary course of nature to cause death. He further deposed that this injury could be caused by iron sabal. The testimony of Ako Bai PW 9 also finds sufficient corroboration from the extrajudicial confession made by accused Kali alias Kala Singh before PW 10 Bagga Singh and PW 13 Datar Singh. It is true that PW 13 Datar Singh has turned hostile PW 4 Ranga Singh has deposed that when Mst. The testimony of Ako Bai PW 9 also finds sufficient corroboration from the extrajudicial confession made by accused Kali alias Kala Singh before PW 10 Bagga Singh and PW 13 Datar Singh. It is true that PW 13 Datar Singh has turned hostile PW 4 Ranga Singh has deposed that when Mst. Ako Bai PW 9 came to inform him about the death of deceased Shankar Singh, she has told him that both the accused came in the house at late night and accused Kali was armed with sabal and he gave the fatal blow. Thereupon all of three PW 4 Ranga Singh, PW 10 Bagga Singh and PW 13 Datar Singh went to the house of deceased Shanker Singh and thereafter to the house of accused. Accused Kali confessed before them that he gave the fatal blow to the deceased on account of his liquor dues amounting to Rs. 5/- only. He confessed his guilt. To the same effect is the testimony of PW 10 Bagga Singh. They have also gone to the house of the accused Resham Singh and Resham Singh also confessed that he has not given any blow to the deceased but the blow was given by Kali. From the testimony of PW 4 and PW 10 it is apparent that the accused hand made an extra-judicial confession before both these persons. Both these witnesses were crose-examined. But the testimony of these witnesses could not be shattered. Neither both these persons have any animus with accused Kali alias Kala Singh. In this view of the extra judicial confession before PW 4 and PW 10 the version given by PW 9 Ako Bai stands substantially supported. There is another circumstance which supports the testimony of PW 9 Ako Bai that in the early morning when she informed PW 4 Ranga Singh she disclsoed the name of both the accused persons to PW 4 and that finds mention in the First Information Report which was lodged at police station Tibi on 7-7-1981 at 9 a.m. From these materials on record it can safely be said that the testimony of PW 9 Ako Bai can be accepted to the extent of the guilt of accused Kali alias Kala Singh. It is true that the learned Additional Sessions Judge has not found the testimony of this witness acceptable to the extent of accused Resham Singh. It is true that the learned Additional Sessions Judge has not found the testimony of this witness acceptable to the extent of accused Resham Singh. We are conscious of the fact that when both the accused were charged under Section 449 Indian Penal Code for house trespass for committing the offence punishable with death and the offence has not been found to be proved against Resham Singh. But by this it cannot be said that whole of the prosecution story should be thrown out if it can be accepted to the extent of one of the accused. Since there is no appeal against the acquittal of accused Resham Singh, therefore, we cannot interfere with his acquittal. By this, it cannot be said the benefit should also be extended to accused Kali alias Kala Singh against whom we have found that the prosecution has succeeded in establishing the case on the basis of the testimony of PW 9 Ako Bai supported by the extra judicial confession made by accused Kali before PW 4 Ranga Singh and PW 10 Bagga Singh. 7. Thus, in the result, the conviction and sentence of the accused appellant Kali under the aforesaid Sections are confirmed. There is no merit in this appeal and the same is dismissed.Appeal dismissed. *******