JUDGMENT - ZOTING D.S., J.:---This criminal appeal is preferred by the original accused Kamalakar against the order of conviction and sentence passed by the Additional Sessions Judge, Jalgaon, in Sessions Case No. 102 of 1995 dated 5-11-1996, whereby the accused has been convicted and sentenced for offence punishable under sections 120-B, 302 r/w 34 of Indian Penal Code to undergo R.I. for life and to pay a fine of Rs. 1000/- in default to undergo further R.I. for six months. 2. This is unique case in which the appellant, who has been granted pardon in Crime No. 53 of 1993 of Zilla Peth Police Station, Jalgaon, on condition of this making full and true disclosure of whole circumstances relating to the offence, made disclosure of such facts but subsequently resiled from the said statement and consequently failed to comply with the condition on which pardon was granted and as such came to be prosecuted and tried as per provisions of section 308 of Criminal Procedure Code. The prosecution case, in brief, is as under. The murdered man was one Vijayasingh Patil, aged about 59 years, who retired as Deputy Superintendent of Police from the service of State Government in the year 1992. After his retirement, deceased Vijaysingh was residing at Jalgaon in his bungalow named as "Ghazal Bungalow". The said bungalow is quite spacious and there is one quarter in the premises of the said bungalow which is meant for watchman. Accused Kamalakar was working as Watchman. He was living along with his wife, small child and his mother in the said out house. Accused Mangalabai was the second wife of deceased Vijaysingh Patil. She had married to the deceased Vijaysingh in the year 1984 and since then she was cohabiting with him. Deceased Vijaysingh was having a son named Deepak and a daughter Alka from his first wife. His son and daughter are married and they are residing at Bombay. The incident occurred on the intervening night of 10th and 11th February, 1993 in the said bungalow. It is alleged that three months prior to the said incident, one Zoharabai was working as a maid servant in the said bungalow. Deceased Vijaysingh was addicted to liquor and under influence of liquor he used to ill-treat Mangalabai and as such Mangalabai was not putting well with deceased Vijaysingh. It is alleged that three months prior to the said incident, one Zoharabai was working as a maid servant in the said bungalow. Deceased Vijaysingh was addicted to liquor and under influence of liquor he used to ill-treat Mangalabai and as such Mangalabai was not putting well with deceased Vijaysingh. On many occasions accused Mangalabai left the bungalow for her parents house at Bombay on account of differences between her and her husband. She was suspecting that her husband Vijaysingh was indulging in extra marital activities with some females and lastly with Zoharabai, who was working as a maid servant in the said bungalow. With a view to redress her grievance, Mangalabai approached Madhukar Patil the brother of deceased Vijaysingh in the month of September, 1992, requesting him to intervene in the matter and to keep her husband away from the vices, however, Madhukar Patil did not pay any heed to the request of Mangalabai. Deceased Vijaysingh had continued to indulge in the said activities. Therefore, Mangalabai left for Bombay at her maternal house. During her stay at Bombay, she used to receive phone message from deceased Vijaysingh disclosing that he had improved himself and, therefore, she should come to Ghazal bungalow to live with him. Relying on the assurance given to deceased Vijaysingh, Mangalabai came to Jalgaon to live with her husband. She came to know that Zoharabai left the Ghazal bungalow on the day on which she came there and her husband Vijaysingh had illicit relations with Zoharabai and she had also noticed that her husband had not given up the habit of drinking liquor. On 2-2-1993 quarrel took place between Mangalabai and her husband. Accused Kamalakar noticed that deceased Vijaysingh was driving Mangalabai out of the house. It is alleged that the deceased Vijaysingh wanted to marry with Zoharabai and he had given threats to Mangalabai that he would transfer his all property in the name of Zoharabai. Mangalabai thought that if deceased Vijaysingh transfers his property in the name of Zoharabai, she would be deprived of getting the property and, therefore, she made a plan to commit murder of her husband and she took assistance of accused Kamalakar Dusane. It is alleged that Mangalabai had promised to spend quite huge amount for the said purpose for engaging services of hired murderers for killing her husband Vijaysingh. It is alleged that Mangalabai had promised to spend quite huge amount for the said purpose for engaging services of hired murderers for killing her husband Vijaysingh. She had given temptation to accused Kamalakar that she will pay Rs. 20,000/- in cash to him and transfer the quarter meant for watchman in his name. Kamalakar told her that his two friends who are residents to Itarsi would be in a position to carry to this task. Accordingly, Kamalakar Dusane went to Itarsi (M.P.) on 3-2-1993 and brought his two friends accused No. 1 Banti @ Sadashiv and accused No. 3. Rakeshsingh @ Minti to Jalgaon on 8-2-1993 and when they all got down from train at Jalgaon Railway Station, accused Kamalakar informed Mangalabai on phone that he had brought his two friends to Jalgaon and asked her at what time he should bring them to her. She replied that on that day the friends of deceased Vijaysingh were likely to come in the bungalow and, therefore, he should bring his friends on next day. Therefore, accused Kamalakar went to village Nandra where his married sister was living and stayed there along with his two friends during the night time. Jagannath (P.W. 3) is the husband of sister of accused Kamalakar. On the next day i.e. on 9-2-1993 accused Kamalakar had brought Banti and Minti at Ghazal bungalow at Jalgaon and they all met with Mangalabai. Mangalabai had a talk with both these persons about the task that was to be carried out to finish Vijaysingh. The consideration for committing murder was fixed at Rs. 40,000/-. Thereafter Banti and Minti were directed to stay in the lodge at Jalgaon till they receive further instructions. Necessary accommodation was secured for Banti and Minti on 9-2-1993 at Prakash Guest House which is situated near the Railway Station. 3. On 10-2-1993, Mangalabai had given Pani Puri and Dahi Wada the edible articles to deceased Vijaysingh. It is alleged that in the said food one sedative tablet was mixed. Thereafter, liquor was offered to deceased and deceased went to sleep. Thereafter, Mangalabai called Banti and Minti through the accused watchman Kamalakar. According, on 10-2-1993 at about 11.30 p.m. Banti and Minti were brought by accused Kamalakar to Ghazal bungalow. At that time amount of Rs. 10,000/- was paid to them towards part consideration and cash amount of Rs. Thereafter, liquor was offered to deceased and deceased went to sleep. Thereafter, Mangalabai called Banti and Minti through the accused watchman Kamalakar. According, on 10-2-1993 at about 11.30 p.m. Banti and Minti were brought by accused Kamalakar to Ghazal bungalow. At that time amount of Rs. 10,000/- was paid to them towards part consideration and cash amount of Rs. 4,000/- was given to accused Kamalakar and the balance was assured to be paid after the task was over. Banti and Minti were sent to the bed room where deceased Vijaysingh was sleeping. Thereafter Mangalabai left the place and went to the out house where mother and wife of accused Kamalakar were sleeping and Mangalabai told them that her husband was enjoying liquor party with his friends and the said party was not likely to be finished within a short time. The wife and mother of accused Kamalakar allowed Mangalabai to stay in their house during night time. However, within a short time they heard shouts of husband of Mangalabai. Mother and wife of accused Kamalakar had brought this fact to the notice of Mangalabai, but Mangalabai told them that her husband had habit of raising shouts as 'Mangal Mangal' under influence of liquor. It is further alleged that at about 1.00 a.m. accused Kamalakar came to the out house and met with Mangalabai and informed her that the task was over. 4. Thereafter Mangalabai went to the bed room of deceased along with accused Kamalakar. She found the dead body of deceased Vijaysingh lying on the cot in a pool of blood. It is further alleged that at that time the accused Mangalabai in order to create a show that somebody had caused murder, arranged a tea pot and put three glasses, and liquor bottle on the said tea pot in the bed room of deceased. This arrangement was made to create an impression to believe that friends of deceased were sitting along with him and they caused murder of deceased. Thereafter Mangalabai came out of the bungalow and locked the bungalow from rear side. Accused Kamalakar was asked to go away from the home and to come back after 3-4 days as by that time everything would be set right. Banti and Minti also left the said bungalow. Thereafter early in the morning Mangalabai opened lock put on the rear side door of the bungalow. Accused Kamalakar was asked to go away from the home and to come back after 3-4 days as by that time everything would be set right. Banti and Minti also left the said bungalow. Thereafter early in the morning Mangalabai opened lock put on the rear side door of the bungalow. She raised shouts that her husband was killed. She gave telephone ring to the Police Station informing that her husband was murdered in the bungalow. On the basis of the information given by her, the Police Station Officer had taken entry in the station diary at about 5.55 a.m. He brought this fact to then notice of Inspector Shri Khan (P.W. 10). Shri, Khan rushed to the spot. Mangalabai lodged oral report before him which was reduced into writing by Shri Khan. In her report, she told the Police Inspector that on 10-2-1993 after finishing meals her husband had been to his bed room for sleeping. The front door of the bungalow used to be locked. She left the bungalow at 12.00 mid night by locking the rear side door of the bungalow and went to the out house and slept there for whole night and early in the morning when she went to the bed room of deceased Vijaysingh after opening the lock, she found the dead body of deceased Vijaysingh. On the basis of the report of Mangalabai, offence was registered at C.R. No. 53 of 1993 for an offence punishable under section 302 of the Indian Penal Code at Zilla Peth Police Station, Jalgaon. Shri Khan took up the investigation. He held inquest on the dead body of deceased Vijaysingh in presence of two panchas and drew inquest panchanama. The dead body of deceased Vijaysingh was referred to the Medical Officer for post-mortem examination. Shri Khan attached the bed sheet, pillow stained with blood. In the said room wine bottle and glasses were found. They were preserved for the purpose of seeking finger print expert's opinion. Medical Officer Shri Chavan (P.W. 7) conducted autopsy on dead body of Vijaysingh on the same day. 5. In the mean while Shri Khan recorded the statements of Vijaya the wife and Radhabai the mother of accused Kamalakar. In the said room wine bottle and glasses were found. They were preserved for the purpose of seeking finger print expert's opinion. Medical Officer Shri Chavan (P.W. 7) conducted autopsy on dead body of Vijaysingh on the same day. 5. In the mean while Shri Khan recorded the statements of Vijaya the wife and Radhabai the mother of accused Kamalakar. During the investigation, it was transpired to Shri Khan that accused Mangalabai is connected with the crime in question, so she was arrested at about 2.30 p.m. He recorded statements of some other persons, namely, Zoharabai, Madhukar Patil, Kishor Narkhede, Dashrath Patil. However, he noticed that accused Kamalakar Dusane who was working as watchman was absconding. He was arrested on 14-2-1993. 6. Mangalabai is a graduate lady. On 16-2-1993 she made an application to the Police Inspector about her intention to make confession and as such on the basis of the said application. Police Inspector Khan produced her before the Chief Judicial Magistrate Shri Harpale (P.W. 5) on the very day. The learned Chief Judicial Magistrate, after satisfying that Mangalabai wanted to make confession, cancelled her police custody and remanded her to the Magisterial custody and sent her to District Prison at Jalgaon. On the same day he passed order that she be produced before the Special Judicial Magistrate, Bhusawal who was appointed for recording the confessional statement. Pursuant to the said order, dated 16-2-1993, Mangalabai was taken to the Special Judicial Magistrate Shri Sarode (P.W. 6). After following due procedure as laid down in Chapter I of Criminal Manual for the guidance of the officers recording the confessions, and on ascertaining that the Mangalabai wanted to make the statement voluntarily, the learned Magistrate had given 24 hours time to Mangalabai to think over in the matter and warned her about consequences of such confession and then direction was issued to the Jailor to produce her on the next day i.e. after expiry of 24 hours. Accordingly, on 17-2-1993 accused Mangalabai was taken to Special Judicial Magistrate Shri Sarode (P.W. 6) by two female Police Constables. Accordingly, on 17-2-1993 accused Mangalabai was taken to Special Judicial Magistrate Shri Sarode (P.W. 6) by two female Police Constables. On that day after following the same procedure as followed by him on the previous day and on ascertaining the willingness of Mangalabai to make statement, Shri Sarode (P.W. 6) recorded the confessional statement of Mangalabai as per the provisions of section 164 of Criminal Procedure Code and forwarded the said statement to the learned Chief Judicial Magistrate under sealed cover. 7. Banti alias Sadashiv came to be arrested on 3-3-1993. When he was in police custody on 4-3-1993, he made a disclosure before panchas and police that he wanted to point out the place where he had concealed the knife. His statement was recorded. Thereafter he took the police and panchas to Ghazal bungalow and produced the knife which was found concealed under the earth in the premises of Ghazal bungalow. The said knife was found stained with blood. It was attached under seizure panchanama. Thereafter on 11-4-1993, Minti was arrested. 8. During investigation, sample of blood of deceased was collected. At the time of arrest, it is noticed that Banti was having injury on his fingers. He was examined by Medical Officer. His blood was also collected for chemical analysis. The blood stained clothes of deceased Vijaysingh, the blood stained bed sheet, pillow and other articles which were found stained with blood, similarly the sample of blood of deceased, so also sample of blood of Banti and the knife were sent to the Chemical Analyser for chemical analysis. In the mean time, accused Kamalakar came to be tendered pardon on the condition that he will make full and true disclosure of the whole of the circumstances, and as such accused Kamalakar was made approver in view of the order passed by the learned Chief Judicial Magistrate. Charge-sheet was submitted against Mangalabai, Banti and Minti. 9. These three accused have been prosecuted for the offence punishable under section 302 r/w 120-B, in the alternative under section 302 r/w 34 of the Indian Penal Code and were convicted and sentenced for the said offences. Charge-sheet was submitted against Mangalabai, Banti and Minti. 9. These three accused have been prosecuted for the offence punishable under section 302 r/w 120-B, in the alternative under section 302 r/w 34 of the Indian Penal Code and were convicted and sentenced for the said offences. During their trial, the present accused has been examined as an approver in Sessions Case No. 120 of 1993, however, few days after closing his evidence, on 2-10-1994 through letter he informed the Court that what he deposed before the Court is not true, but he deposed under pressure of the police and on inducement given to him. In the said letter, he also mentioned that he has not committed any offence. Similarly, his two friends Banti and Minti are also not connected with the crime. On the basis of the said letter, he was recalled for further examination. As he had not complied with the conditions of pardon, prosecution submitted certificate under section 308 of Criminal Procedure Code vide Exhibit 193 in respect of accused Kamalakar Dusane in Sessions Case No. 120 of 1993 for trial of this accused for the offence in respect of which pardon was tendered. Therefore, while disposing of Sessions Case No. 120 of 1993, the learned Additional Sessions Judge observed that as the said Kamalakar had not complied with the conditions of pardon, that was tendered to him, he appears to have been guilty in connection with the said murder and he is liable to be tried for the said offence in C.R. No. 53 of 1993 of Zilla Peth Police Station, Jalgaon in accordance with law. Prosecution was directed to submit charge-sheet against the accused Kamalakar Dusane pertaining to said Crime No. 53 of 1993 for trial according to law. Accordingly, separate charge-sheet has been submitted against this accused which is numbered as Sessions Case No. 102 of 1995. 10. Charge under section 302 r/w section 120-B in the alternative under section 302 r/w 34 of the Indian Penal Code and under sections 201 and 203 of the Indian Penal Code was framed against this accused by the learned Additional Sessions Judge, Jalgaon. It was read over and explained to him. He pleaded not guilty and claimed to be tried. Charge under section 302 r/w section 120-B in the alternative under section 302 r/w 34 of the Indian Penal Code and under sections 201 and 203 of the Indian Penal Code was framed against this accused by the learned Additional Sessions Judge, Jalgaon. It was read over and explained to him. He pleaded not guilty and claimed to be tried. The learned Additional Sessions Judge in order to ascertain from this accused as to whether he was complied with the conditions of pardon so tendered put the question to that effect to him and the accused said that he has not complied with the conditions on which pardon was tendered on him. The defence of the accused is that Mangalabai alone is responsible for the said murder of Vijaysingh and he has no concern with the said murder. Similarly, Banti and Minti have also no concern with the said murder of Vijaysingh, however, he was constrained to act as an approver under the pressure of police and on the assurance that this family would be allowed to stay in the out house of Ghazal bungalow and police would see that the son of deceased Vijaysingh will continue to pay salary of Rs. 1000/- to the members of his family. According to the accused, he had not given any statement before the Magistrate. The statement which is alleged to have been made by the accused was written by the police and his signature was obtained and in the same manner thereafter the signature of the Magistrate was obtained on it. According to him, the said statement was given to him and he was advised to read the same repeatedly and to give statement accordingly before the Court. He further stated that when he was in Magisterial custody he was taken to the house of the Public Prosecutor and he was taught as to how to give statement before the Court and under such circumstances, he had given evidence before the Court. In this defence, he has examined Shri Parde the Jail Superintendent. 11. During the trial, the prosecution examined as many as 10 witnesses before the Additional Sessions Judge. In this defence, he has examined Shri Parde the Jail Superintendent. 11. During the trial, the prosecution examined as many as 10 witnesses before the Additional Sessions Judge. The learned Additional Sessions Judge heard the arguments of both the sides and considering the entire evidence on record as well as the defence of the accused, the learned Additional Sessions Judge held that deceased Vijaysingh Patil died homicidal death on or about 10th February, 1993. It is further held that the appellant was partly to the criminal conspiracy to commit murder of deceased Vijaysingh. It is further found that the accused along with other accused Banti, Minti and Mangalabai is responsible for the homicidal death of deceased Vijaysingh. In view of the findings recorded by the learned Additional Sessions Judge, he held the appellant guilty of the offence under section 120-B and section 302 r/w 34 of the Indian Penal Code. Accordingly, the accused has been convicted and sentenced for the aforesaid offence to undergo imprisonment for life and to pay fine of Rs. 1000/- in default to suffer further R.I. for six months. However, the accused is acquitted of the offence under sections 201 and 203 of the Indian Penal Code. 12. Being aggrieved by the said judgment of conviction and sentence passed against the accused for an offence under section 120-B and under section 302 r/w 34 of the Indian Penal Code, the accused Kamalakar has preferred this appeal. 13. It is to be noted that those two Sessions Cases i.e. Sessions Case No. 120 of 1993 against accused Mangalabai, Banti and Minti and another Sessions Case No. 102 of 1995 against the present appellant, arose out of same crime bearing Registration No. 53 of 1993. Mangalabai, Banti and Minti were tried and convicted for the aforesaid offence and they were sentenced to undergo imprisonment for life. Mangalabai and Banti preferred appeals bearing Criminal Appeal No. 57 of 1995, and Criminal Appeal No. 199 of 1995, (Mangalabai v. State of Maharashtra)1, reported in 2001 ALL.M.R.(Cri.) 1535. Their appeals were decided by this Court and both the appeals were dismissed. The third accused Minti had also preferred appeal, but he died during pendency of appeal and his appeal stands abated. Their appeals were decided by this Court and both the appeals were dismissed. The third accused Minti had also preferred appeal, but he died during pendency of appeal and his appeal stands abated. All the original documents pertaining to the Crime No. 53 of 1993 giving rise to the Sessions Cases referred to above are placed on record of the Sessions Case No. 120 of 1993 and the certified copies of the said documents are placed on record of Sessions Case No. 102 of 1995. 14. We have heard the arguments advanced by Mrs. M.A. Kulkarni, Advocate appointed for the appellant and Shri N.N. Jadhav, learned A.P.P. appearing on behalf of the respondent State. We have gone through the prosecution evidence and all the documents relied upon by the prosecution and we find that there is ample, cogent and trustworthy evidence to sustain conviction and sentence passed by the learned Additional Sessions Judge against the present appellant and, therefore, we find that the appeal is devoid of substance and the order of conviction and sentence deserves to be confirmed for the following reasons. 15. The fact that deceased Vijaysingh Patil died unnatural death on the intervening night of 10th and 11th of February, 1993 at his residential bungalow "Ghazal" has not come to be disputed in any manner by or on behalf of the appellants. His dead body was noticed early in the morning. At about 5.55 a.m. Zilla Peth Police Station received phone message that the deceased Vijaysingh was murdered. Police Inspector Shri Khan (P.W. 10) visited the spot immediately after receipt of the information. He held inquest on the dead body of deceased in presence of two panchas and he described the injuries noticed by him on the person of deceased Vijaysingh in the inquest panchanama Exhibit 17. Dead body of deceased was referred to Medical Officer for post-mortem examination. Dr. Ranjit Chavan (P.W. 7) conducted autopsy on the dead body of deceased Vijaysingh Patil on 11-2-1993 from 5.20 p.m. to 7.20 p.m. On external examination, he noticed as many as 30 injuries. He described all those injuries in Column No. 17 of post-mortem report Exhibit 50. Those are as under : "1. Incised wound right arm upper third anterior lateral aspect 2 cm x 1½ cm muscle deep with clean cut, edges, 2. He described all those injuries in Column No. 17 of post-mortem report Exhibit 50. Those are as under : "1. Incised wound right arm upper third anterior lateral aspect 2 cm x 1½ cm muscle deep with clean cut, edges, 2. Incised wound right arm anterior axillary line upper third size 2 cm x 1 cm sharp edges, muscle deep. 3. Incised wound anterior axillary fold near axilla 1 cm x ½ cm. sharp edges, muscle deep. 4. Incised wound three in number, 4 and half below lateral end of clavicle right side size 1" x ¼", each one above the other transversely placed over the chest wall right side, bone deep, with sharp edges. 5. Incised wound right line 3 and one third" x ¼ above right nipple transverse, bone deep. 6. Incised wound external and right clavicle 1" x ¼" bone deep. 7. 5 incised wound in right supra clavicular fossa 1" x ½" muscle deep. 8. Incised wound right anterior triangle of neck near right carotrid sheath, 1" x ½" deep upto tracheas. 9. Incised wound in midline of the neck anterior aspect of 3" above strnoid notch about 3" x 1" tracheas out. 10. Incised wound near sternal end of left clavicle superiorly about 1" x ½" cm muscle deep. 11. Incised wound that two in numbers, below sternal and of left clavicle, muscle deep, about 1" x ¼" transverse. 12. abrasion over the chest wall left side 3 and half" above left nipple, mid clavicle line size 1 and half cm. x ½ cm. 13. Incised wound left supra scapular region about 12" x ¼" muscle deep. 14. Four linear abrasions in posterior triangles of neck left side about 1 and half x ¼ cm. 15. Incised wound in anterior triangle of neck near mid line on left side about 12 x 1/5" muscle deep. 16. Incised wound 2 in numbers, in sub-mental region left side, about 1 and half x ½" muscle deep, transversely placed one above the other. 17. Incised wound left angle of mandible 1" x ½" bone deep, transverse. 18. Incised wound 2" below angel of mouth left side, about 1" x ½" bone deep. 19. Incised wound over chin left end about 2" x 1" bone deep, abrasion linear extending medically from wound about 2" in length. 20. 17. Incised wound left angle of mandible 1" x ½" bone deep, transverse. 18. Incised wound 2" below angel of mouth left side, about 1" x ½" bone deep. 19. Incised wound over chin left end about 2" x 1" bone deep, abrasion linear extending medically from wound about 2" in length. 20. Incised wound in right anterior triangle of neck, 2 and half below right angle of mandible about 1" x ½" muscle deep oblique. 21. Incised wound near right angle of mandible about 1" x ¼" bone deep transverse. 22. Incised wound 1" x ½" anterior to right ear lobule muscle deep. 23. Incised wound anterior to right trague, 1" x ½" x 4" deep, obliquely placed. 24. Incised wound through right ear lobule about 1" x ¼". 25. Incised wound Pinna right ear splitting the pinna 1 and half x ½". 26. Incised wound half inch anterior to right mastroid behind right ear pinna about 1 and half x ½" deep upto survicle spine, C-3, carotid right partial tear present, (internally) 27. Incised wound 1" x ½" below right mastroid 4" deep. 28. Incised wound 1" x ½", 1" below and anterior to right mastroid 4" deep. 29. Incised wound 1 and half below right ear pinna about ¼" x ¼", 4" deep transverse. 30. Incised wound in the posterior mid line, mid servical region, transversely placed, muscle deep." He opined that all these injuries are ante mortem and are on the vital part of the body. The internal damage that has been caused due to the external injuries is described in Column No. 20 of the post-mortem report Exhibit 50. In his opinion, the cause of death of deceased Vijaysingh is haemorrhagic shock due to multiple injuries. He opined that all these injuries are sufficient in ordinary course of nature to cause death of the person. He has categorically stated that these injuries are possible with sharp cutting instrument like knife article No. 11 before the Court. He has been cross-examined but his evidence remained unshattered. Having regard to all this evidence of incontrovertible nature, there cannot be any doubt in this case that deceased Vijaysingh died homicidal death. 16. He has categorically stated that these injuries are possible with sharp cutting instrument like knife article No. 11 before the Court. He has been cross-examined but his evidence remained unshattered. Having regard to all this evidence of incontrovertible nature, there cannot be any doubt in this case that deceased Vijaysingh died homicidal death. 16. Now the vital question that arises for consideration is whether the prosecution has succeeded in proving that the appellant was a party to the conspiracy and whether he is also along with others responsible for the homicidal death of Vijaysingh. In other words, whether conviction recorded by the trial Court can be sustained or not. In support of its case, the prosecution examined 10 witnesses as under : (I) Circumstantial Evidence: (P.W. 1) Charudatta (P.W. 2) Dashrath (P.W. 3) Jagannath (P.W. 4) Vijaya (II) Evidence on Confession of Co-accused : (P.W. 6) Sarode-Special Judicial Magistrate (P.W. 5) Harpale-Chief Judicial Magistrate. (III) Medical Evidence : (P.W. 7) Dr. Chavan (II) Panchas : (P.W. 8) Ramesh Gavali, (P.W. 9) Malojirao (V) Investigating Officer : (P.W. 10) Shri Khan-Police Inspector 17. So far as the appellant is concerned, prosecution case against him rests on circumstantial evidence as well as confession of co-accused for seeking assurance to the circumstantial evidence. Therefore, it is necessary to take into consideration the evidentiary value of confession of the co-accused also. 18. As regards the evidentiary value of the confession, the Apex Court has held in the case of (Sarwan Singh Ratan Singh v. State of Punjab)2, reported in A.I.R. 1957 S.C. 637 as under: "....in law it would be open to the Court to convict him on his confession itself though he has retracted his confession at a later stage. Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case." 19. The same principle has been reiterated by the Supreme Court in (Kehar Singh v. State (Delhi Admn.))3, reported in 1988(3) S.C.C. 609 . What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case." 19. The same principle has been reiterated by the Supreme Court in (Kehar Singh v. State (Delhi Admn.))3, reported in 1988(3) S.C.C. 609 . Such a confession can also be used against a co-accused, in view of section 30 of the Evidence Act, which reads as under: "When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other persons as well as against the person who makes such confession." 20. The next question that naturally arises is how far and in what way the confession can be used against a co-accused, who has faced the trial for the same offence with the maker thereof. This was pithily answered by the Supreme Court in (Kashmira Singh v. State of M.P.)4, reported in A.I.R. 1952 S.C. 159 with the following words : "The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept." Keeping in view the above principles, we may now proceed to consider the case of the appellant. 21. Therefore, to begin with we would first like to deal with the circumstantial evidence against the appellant and it necessary to consider the use of confession of co-accused Mangalabai to ascertain whether it lends assurance to the other evidence with a view to see whether the accused is guilty of the offence. 22. 21. Therefore, to begin with we would first like to deal with the circumstantial evidence against the appellant and it necessary to consider the use of confession of co-accused Mangalabai to ascertain whether it lends assurance to the other evidence with a view to see whether the accused is guilty of the offence. 22. Charudatta (P.W. 1) gave evidence that on 4-3-1993, he and one Mohd. Iqbal were called to the Police Station and one person whose face was covered with cloth was asked his name and he told his name as Banti. It is pertinent to note that Banti was arrested on 3-3-1993. He further stated that Banti made a statement when he was in police custody that he would produce the knife. Police recorded his statement. The said statement is at Exhibit 71 in the Sessions Case No. 120 of 1993, the copy of which is placed on record at Exhibit 22. He further stated that thereafter Banti took them and the police to the bungalow of deceased known as Ghazal bungalow and dug earth and took out one knife from the said pit. He further stated that accused opened the knife by pressing the button and there were blood stains on the knife. Police attached the said knife in his presence. He identified article No. 1 before the Court to be the same knife which was produced by the accused Banti. Seizure panchanama is at Exhibit 71 in Sessions Case No. 120 of 1993 and it's copy is at Exhibit 23 on the record of this case. The accused has not cross-examined this witness as he has not stated anything against him and, therefore, the evidence given by this witness will have to be accepted as it is. 23. As regards this knife, it is to be noted that the knife was sent for the chemical analysis and the chemical analyser reported that blood stains of blood group 'A' of human origin were found on the said knife. Same blood group was also found on the blood stained clothes of deceased Vijaysingh. Thus the blood stains on the knife tally with the blood found on the clothes of deceased Vijaysingh and, therefore, the discovery of knife is relevant in this case. As already pointed out, the accused Banti was held guilty along with other accused for the offence of murder of Vijaysingh. Thus the blood stains on the knife tally with the blood found on the clothes of deceased Vijaysingh and, therefore, the discovery of knife is relevant in this case. As already pointed out, the accused Banti was held guilty along with other accused for the offence of murder of Vijaysingh. The fact that on the intervening night of 10th and 11th February, 1993 deceased Vijaysingh was having several incised wounds and he was found dead in Ghazal bungalow has not come to be disputed. 24. In order to establish that accused Banti and Minti were present at Jalgaon from 9-2-1993 till 9.30 of 11-2-1993, the prosecution examined Dashrath (P.W. 2) who is the manager of Prakash Guest House situated at Station Road, Jalgaon. He stated that he was working as manager in Prakash Guest House during the relevant period. On the basis of the register maintained by the said Guest House, as regards the names of persons who stayed in the said Guest House, this witness gave evidence that accused Banti and Minti stayed in the said Guest House from 9-2-1993 till 9.30 a.m. on 11-2-1993. He stated that on 9-2-1993, he was sitting on the counter at about 11.00 p.m. At that time these two persons came to the lodge and asked for the room. As they were strangers, he refused to give room to them. However, the accused who was accompanying them introduced himself to be the watchman of retired Deputy Superintendent of Police Vijaysingh Patil and he disclosed his name as Kamalakar Dusane. He told him that these persons are his friends and they had come for some work and requested him to accommodate them in lodge as the room where he lived was very small. On the say of Kamalakar, he gave room No. 1 to those two persons. He further stated that he noted down the name of one of those two persons as per the name disclosed by one of them as Rameshsingh Tukmansing of Itarsi. He further stated that in the morning of 10th February, 1993 both of them left the room and while going they said that they would finish their work on that day and in case they could not finish their work, they would come back to the lodge. He further stated that in the morning of 10th February, 1993 both of them left the room and while going they said that they would finish their work on that day and in case they could not finish their work, they would come back to the lodge. According to him, on 10-2-1993 both of these persons came to the lodge at about 8.45 p.m. and occupied the said room. He further stated that when identification parade was held, he identified both these persons to be the same persons namely Banti and Minti. His statement as regards identity of accused is further corroborated by the statement of panch witnesses namely Ramesh (P.W. 8) and Malojirao (P.W. 9). Dashrath (P.W. 2) identified these two accused during the identification parade. Dashrath (P.W. 2) further stated that on 10th February, 1993 when both these persons again come to the lodge, they were accompanied by the present appellant and after about 15 to 20 minutes all the three persons came out of the room and told him that they were going to see movie and may return late. According to him, at that time they took the key of the room with them and though he waited for these persons till 11.30 p.m. they did not come back, therefore, he went to the bed. From his evidence, it is fairly established that the appellant as well as Banti and Minti were not seen in the lodge from 9.30 p.m. during the night time on 10th February, 1993. He further stated that on the next day i.e. on 11-2-1993 at about 9.30 a.m. Banti and Minti came to the counter and told him that their work was over and they were going. He further stated that after some time police came there and enquired about these persons. He stated that registered was attached by the police. Relevant entry pertaining to stay of accused Minti along with this friend is at Exh. 25. Thus, it is fairly established that Banti and Minti the residents of Itarsi who stayed in the said lodge from 9-2-1993 to 9.30 a.m. of 11-2-1993 were not present in the Guest House on the crucial night of 10th and 11th of February, 1993. 25. 25. Thus, it is fairly established that Banti and Minti the residents of Itarsi who stayed in the said lodge from 9-2-1993 to 9.30 a.m. of 11-2-1993 were not present in the Guest House on the crucial night of 10th and 11th of February, 1993. 25. As already, discussed from the evidence of discovery under section 27 of the Indian Evidence Act along with other evidence there are good reasons to believe that Banti was one of the authors of the crime and he was accompanied by the accused Kamalakar on the crucial night of murder of deceased Vijaysingh. 26. This brings us to consider the evidence of next witness Jagannath (P.W. 3). He is the brother-in-law of the appellant. He stated that his marriage took place on 11-12-1992 with the sister of appellant and about two months thereafter the appellant had come to his house along with his two friends and he told him that those persons were from Itarsi and their names were Banti and Minti. He stated that they all stayed in his house during night time. The appellant in his examination under section 313 of Criminal Procedure Code admits this fact and, therefore, what this witness says appears to be true. The appellant in his examination under section 313 of Criminal Procedure Code has also admitted that for the first time he visited the house of his brother-in-law and thereafter he never visited his house. It is to be noted that appellant was arrested on 14-2-1993. According to the prosecution, he had gone to Nandra to the house of this witness on 8-2-1993 and came back on 9-2-1993. The story of the prosecution finds corroboration in the testimony of this witness in this regard. 27. Now turning to the evidence of next witness i.e. Vijaya (P.W. 4) the wife of appellant, she gave evidence that she was residing with the appellant, his mother and son in the out house of Ghazal bungalow as the appellant was employed by deceased, Vijaysingh as watchman in the said bungalow. She further stated that whenever Mangalabai the wife of deceased Vijaysingh left Jalgaon for Bombay, Zoharabai used to stay in the bungalow with Vijaysingh. In her cross-examination, she has categorically stated that Mangalabai returned from Bombay 8 to 10 days prior to the incident. She further stated that whenever Mangalabai the wife of deceased Vijaysingh left Jalgaon for Bombay, Zoharabai used to stay in the bungalow with Vijaysingh. In her cross-examination, she has categorically stated that Mangalabai returned from Bombay 8 to 10 days prior to the incident. As already stated, the incident had taken place on the intervening night of 10th and 11th February, 1993. From the evidence of this witness, it is clear that Mangalabai must have returned from Bombay on 1st or 2nd February, 1993. She further stated that at that time the appellant had brought his two friends in the afternoon and she served lunch to all of them. She further stated that the names of the friends of her husband are Banti and Minti. During the identification parade held before the panchas Ramesh (P.W. 8) and Malojirao (P.W. 9), she identified Banti and Minti to be the same persons who had come to her house with her husband and had taken lunch. She further stated that thereafter her husband and his said two friends went away and at about 9.00 p.m. or 10.00 p.m. her husband returned alone and he told that he had taken dinner with his friends i.e. Banti and Minti and his friends stayed in Prakash lodge as they had got some work. He stated that thereafter she did not see these persons. According to her, on the next day at about 5.30 p.m. Mangalabai called her husband and after some time her husband returned and said that Baisaheb had asked him to do some work and he would be required to go out for couple of days. She has stated that in between 7.00 to 8.00 p.m. on that day her husband left the house and as he did not return she herself and her mother-in-law took meals and went to bed. In this regard, it is to be noted that since the time her husband left home his wife Vijaya had no occasion to see him till the time he was arrested on 14-2-1993. Therefore, what she says that on the crucial day of incident her husband left the house under the pretext that Baisaheb told him that he would be required to go out for couple of days for her work is very relevant on this matter. 28. Therefore, what she says that on the crucial day of incident her husband left the house under the pretext that Baisaheb told him that he would be required to go out for couple of days for her work is very relevant on this matter. 28. Vijaya further stated that at about 12.00 in mid night Mangalabai knocked the door of the out house, therefore, she herself and her mother-in-law got up and opened the door. At that time Mangalabai told them that three friends of her husband had come in the bungalow, and they all were dead drunk and she be allowed to sleep in their house during the night time. She further stated that Mangalabai then slept in their house, however, 15 or 20 minutes thereafter they heard voice of deceased Vijaysingh. He was calling his wife as 'Mangal Mangal' and when her mother-in-law told Mangalabai that her husband was in a habit of shouting like that under influence of liquor. The abnormal conduct of the wife of deceased Vijaysingh is also very relevant in this matter, because ordinarily any woman would have given response to the call given by her husband. It is pertinent to note that the post-mortem report shows that the relevant time of death of deceased was during the time when deceased Vijaysingh gave call to her wife. It appears that despite of the shouts and call of her husband she kept herself away under the pretext that her husband used to call her under influence of liquor and the evidence shows that what was told to this witness and her mother-in-law, by Mangalabai is proved to be false. 29. Vijaya further stated that at about 5.30 a.m. her mother in law awakened her and informed her that Mr. Patil was killed and asked her to be with Mangalabai. She further stated that when she visited the bungalow of Mr. Patil, Mangalabai was sitting in the kitchen. She was alone. She was not weeping or crying. Having seen the dead body of deceased Vijaysingh she recollected that her husband had given a call to his wife Mangalabai during the late hours of the night but Mangalabai refused to give any response to that call. She reminded her that as her husband had called her at night and she should have gone to his room at night. Having seen the dead body of deceased Vijaysingh she recollected that her husband had given a call to his wife Mangalabai during the late hours of the night but Mangalabai refused to give any response to that call. She reminded her that as her husband had called her at night and she should have gone to his room at night. She further stated that Mangalabai instead of expressing her repentance for not giving response to the call given by her husband, told her that it was none of her business to make such query to her. It is also pertinent to note that Vijaya (P.W. 4) having noticed that her husband was not in the house during the night time and on the said crucial night the murder of his master had taken place it is quite natural on her part to enquire Mangalabai about her husband especially as her husband told her that he would be required to go out for her work for couple of days. Accordingly, when she enquired Mangalabai about whereabouts of her husband, she told her that it was none of her business to ask for about Kamalakar (her husband). She further stated that she again asked Mangalabai as to where her husband had gone and Mangalabai told her that he would return within 2-3 days. Vijaya further stated she found the behaviour of Mangalabai abnormal and on suspicion she asked her as to whether she herself committed the murder but having heard this Mangalabai asked her to keep mum and threatened her not to speak more, else she would tell the name of her husband to be the perpetrator of the crime. She has been cross-examined by the appellant who is her husband, but her evidence remained runshattered. During the cross-examination, suggestion was given to Vijaya that no friend of her husband visited her house along with him, but she categorically denied the said suggestion. It may be noted that there is no enmity between Vijaya and the appellant and no material is brought on record nor during the cross-examination any suggestion to that effect is given to her. It appears that Vijaya had no reason to give false evidence against her husband. Her evidence appears natural, cogent and reliable. Her testimony has a ring of truth and there appears nothing on record to disbelieve in her testimony. 30. It appears that Vijaya had no reason to give false evidence against her husband. Her evidence appears natural, cogent and reliable. Her testimony has a ring of truth and there appears nothing on record to disbelieve in her testimony. 30. The next circumstances against the present appellant is that since the date of incident till he was arrested on 14-2-1993 he was absconding. His abscondence during the relevant period is one of the circumstances against the accused. In the cross-examination of Manager of Prakash Guest House i.e. Dashrath (P.W. 2), it is suggested that the appellant never accompanied Banti and Minti on 9th and 10th February, 1993 when they stayed in the lodge. With a view to show that the accused was not absconding, it is suggested during the cross-examination of this witness that Kamalakar was accompanying police on 11-2-1993 when police came to the lodge to enquire about Banti and Minti, but this witness has categorically denied the said suggestion and there is absolutely no evidence nor even a suggestion to his wife that the appellant was available at Jalgaon on 11th February, 1993. 31. In addition to all these circumstances, the prosecution has also placed on record of this case the certified copy of judgment of the trial Court in Sessions Case No. 120 of 1993 passed by the Additional Sessions Judge, whereby the accused namely Mangalabai, Banti and Minti were convicted and sentenced for the offence punishable under section 302 r/w section 120-B of the Indian Penal Code. As already stated, the appeals preferred by appellants Mangalabai and Banti being Criminal Appeal Nos. 57 of 1995 and 199 of 1995, respectively were dismissed by this Court on 5-2-2002 and conviction and sentence passed against them have been confirmed. 32. On over all consideration of the evidence produced on record by the prosecution and the important features which have been noted by us have led us to the conclusion that murder of Vijaysingh took place in the night of 10th February, 1993 and accused Banti and Minti who are proved to be the murderers of deceased Vijaysingh were brought by the appellant from Itarsi to Jalgaon. He stayed along with them at Nandra at the residence of his brother-in-law (Jagannath-P.W. 3). He brought them to Ghazal bungalow where deceased Vijaysingh was living with Mangalabai. He stayed along with them at Nandra at the residence of his brother-in-law (Jagannath-P.W. 3). He brought them to Ghazal bungalow where deceased Vijaysingh was living with Mangalabai. He had enjoyed a lunch at his residence in the premises of Ghazal bungalow in the company of the said murderers on 9-2-1993. At his instance room was given to Banti and Minti in Prakash lodge, Jalgaon by Dashrath (P.W. 2) from 9-2-1993 to 9.30 a.m. of 11-2-1993. Knife article 11 which is proved to have been used for commission of murder of Vijaysingh was recovered in consequence of the information given by accused Banti. Thus both the murderers came at the instance of the accused. They left the place at his instance. Both the murderers as well as the appellant were absconding since the date of murder. The appellant was in the company of murderers from 9-2-1993 till the night of 10-2-1993 i.e. the crucial night of the murder of deceased Vijaysingh. The evidence on all these circumstances is cogent and trustworthy and in our opinion, the entire evidence is sufficient to come to the conclusion that the appellant along with other accused entered into conspiracy to commit murder and ultimately pursuant to the said conspiracy Vijaysingh was murdered by Banti and Minti. Thus the conviction of the appellant can safely be based on above evidence excluding the confession. However, for the save of arguments assuming that the said evidence independently is not sufficient to sustain conviction of the appellant, then of course the confession of co-accused Mangalabai can be called in aid to lend assurance to the above evidence. 33. Therefore, considering all such circumstantial evidence, now it is to be seen whether the confession of the co-accused Mangalabai lends assurance to the above circumstantial evidence against the appellant. Therefore, now turning to the evidence of Shri Harpale (P.W. 5) the Chief Judicial Magistrate, who stated that in Crime No. 53 of 1993, accused Mangalabai was produced before him on 16th February, 1993 along with the police report as well as her own application to the Court that she wanted to make confession and after questioning her and on satisfying that she wanted to make confessional statement, he issued order for recording her confession under section 164 and directed the Investigating Officer to produce her before the Special Judicial Magistrate. He has produced the application filed by Mangalabai expressing her desire to make confession. It may be noted that accused Mangalabai is graduate. She was produced before the Special Judicial Magistrate Shri Sarode (P.W. 6). Shri Sarode (P.W. 6) in his deposition stated that on 16-2-1993 police from Zilla Peth Police Station, Jalgaon produced Mangalabai for recording her confessional statement. They had also produced the order of Chief Judicial Magistrate to that effect and after following necessary procedure and observing the formalities for satisfying himself as to whether Mangalabai wants to give the confession voluntarily, he put some questions to her and he himself satisfied that she wanted to make confessional statement voluntarily and therefore, he gave her time of 24 hours for reflection and she was again produced before him on the next day i.e. on 17-2-1993. Thereafter he again observed necessary procedure and recorded her statement vide Exhibit 89 which is on the record of Sessions Case No. 120 of 1993. He has categorically stated that he has recorded the confession as per the version of Mangalabai. After going through the confessional statement recorded by Shri Sarode (P.W. 6), it seems that he followed the precaution and the guidelines laid down under section 164 of Criminal Procedure Code as well as Chapter 1 of Criminal Manual pertaining to recording of the confessional statement. He has given sufficient time to Mangalabai to think over as to whether she wanted to make confessional statement. He had also given warning that she was not bound to make the statement and despite of it if she made the statement that would be used against her. On perusal of the confessional statement of Mangalabai, we are satisfied that she made a confessional statement voluntarily. As regards the truth of her confessional statement, on going through it, we find that what she stated in the confessional statement finds corroboration in the other evidence produced by the prosecution already discussed above. 34. Now turning to the relevant portion of her confessional statement, it is to be noted that she disclosed story in her confessional statement right from the time of marriage of her with deceased Vijaysingh and about ill-treatment to her from Vijaysingh, so also his illicit association with Zoharabai and his intention to transfer the property in the name of Zoharabai. Now turning to the relevant portion of her confessional statement, it is to be noted that she disclosed story in her confessional statement right from the time of marriage of her with deceased Vijaysingh and about ill-treatment to her from Vijaysingh, so also his illicit association with Zoharabai and his intention to transfer the property in the name of Zoharabai. Thereafter she narrated about the conspiracy to commit murder of Vijaysingh with the help of the present appellant and Banti and Minti. As regards the incident, she stated that on 2-2-1992 she came back to Jalgaon to live with her husband at Ghazal bungalow at his request. However, she came to know that deceased had continued his illicit relations with Zoharabai. She had also noticed that her husband did not stop drinking liquor and had continued his habit to remain under influence of liquor throughout the day. She stated that under influence of liquor her husband told many a times that he wanted to marry with Zoharabai and transfer his property in her name. Therefore, she thought that she would be deprived of property of her husband to which she would be entitled to and, therefore, she decided to finish her husband and for this purpose she took the present appellant into confidence and disclosed him her plan to finish her husband and for that purpose she sought assistance of the appellant and made a proposal to him that if he engages hired murderers, she would pay Rs. 40000/- to them and Rs. 20000/- to him and also transfer the said out house in his name. She further stated that in view of this plan, the appellant left Jalgaon for Itarsi and had brought his two friends namely Banti and Minti on 9-2-1993 to Ghazal bungalow and at that time there was a talk amongst all of them about the task which was to be carried out. At that time, the plan as to how to commit murder of Vijaysingh was explained to the friends of Kamlakar and for that purpose she agreed to pay Rs. 10000/- to Banti and Minti in advance and Rs. 4000/- to accused Kamlakar as part consideration for committing murder of deceased Vijaysingh and she promoted to pay Rs. 40000/- to Banti and Minti after the task was over. 10000/- to Banti and Minti in advance and Rs. 4000/- to accused Kamlakar as part consideration for committing murder of deceased Vijaysingh and she promoted to pay Rs. 40000/- to Banti and Minti after the task was over. As regards the actual occurrence of incident on 10-2-1993 she stated that in the evening Dahiwada and Panipuri were brought by accused Kamalakar and one sedative tablet was added by her in Dahiwada and those eatables were given to her husband, thereafter she offered liquor to her husband, as a result of which, he went fast asleep and thereafter she sent Kamlakar to call his friends and in pursuances to the said direction. Kamalakar brought his two friends Banti and Minti and as per the agreement she paid Rs. 10000/- to Banti and Minti and Rs. 4000/- to accused Kamalakar and sent them to the bed room of deceased Vijaysingh and after issuing necessary instructions to them she went to the out house where Vijaya the wife of the appellant along with her mother of appellant were sleeping and stayed there during the night time. She further stated that after some time, she heard shouts as 'Mangal Mangal' in the voice of Vijaysingh and on hearing the shouts, mother and wife Kamalakar enquired as to what happened and why Saheb called her. She told them not to pay attention as he was in the habit of calling her under influence of liquor and she switched off light buttons and went to bed. In this regard, it is to be noted that Vijaya has already stated about it in details in her deposition which is already discussed. Thus the deposition of Vijaya finds full assurance from the confessional statement of Mangalabai. 35. As already stated, in this case circumstantial evidence produced by prosecution is sufficient to sustain conviction of the appellant. In this regard, it is to be noted that Vijaya has already stated about it in details in her deposition which is already discussed. Thus the deposition of Vijaya finds full assurance from the confessional statement of Mangalabai. 35. As already stated, in this case circumstantial evidence produced by prosecution is sufficient to sustain conviction of the appellant. However, without prejudice to same assuming that it is not sufficient then keeping in view the principles laid down by the Apex Court in the case of Kashmira Singh v. State of M.P., reported in A.I.R. 1952 S.C. 159, we find that the circumstantial evidence so produced by the prosecution if taken into consideration with the confessional statement of Mangalabai for the purpose of lending assurance to the said evidence, we are fully satisfied that the same is sufficient to base conviction of appellant as the confession of the co-accused fortifies us in believing the prosecution story to show involvement of this appellant in the conspiracy so hatched for killing deceased Vijaysingh and there cannot be any doubt in this matter that the appellant accused had not only conspired for the murder of deceased Vijaysingh but also took active participation till the time deceased Vijaysingh was killed in his presence in pursuance of said conspiracy. 36. The prosecution has also placed reliance on the statement of the present appellant recorded by Shri Sarode (P.W. 6) when he was produced before him for recording his statement as an approver. It is to be noted that the statement of the approver was ignored by the learned Additional Sessions Judge while deciding Sessions Case No. 120 of 1993. Similarly while deciding the present case against the appellant, the Additional Sessions Judge has ignored that statement. Moreover, that statement cannot be used for the reason that his statement was not recorded by the Magistrate taking cognizance of the offence. So also no warning was issued by Shri Sarode (P.W. 6) while recording his statement by informing him that in case the appellant fails to comply with the conditions on which the pardon was granted, the said statement would be used against him. It appears that no such warning was also given to him when he was produced before the Chief Judicial Magistrate Harpale (P.W. 5) and, therefore, we do not find any error with the findings of the learned Judge ignoring the statement of the approver. It appears that no such warning was also given to him when he was produced before the Chief Judicial Magistrate Harpale (P.W. 5) and, therefore, we do not find any error with the findings of the learned Judge ignoring the statement of the approver. Even by ignoring the said statement, we find that there is ample evidence which is cogent and trustworthy to sustain the conviction of this appellant for the offence under section 120-B as well as under section 302 r/w 34 of the Indian Penal Code. Thus, we find that the appeal is devoid of any substance and deserves to be dismissed. 37. Before parting with the judgment, we would like to deal with the preliminary objection raised by the learned Counsel for the accused as regards validity of the committal order passed by the learned Chief Judicial Magistrate. She has drawn out attention to the provisions of section 306(4) of Cri.P.C. for examination of approver as a witness by the committal Court before the case is committed. She submitted that the said provision is mandatory and Magistrate cannot dispense with the special procedure under section 306(4) of Cri.P.C. and commit the case by applying the procedure contemplated under section 209 under which the examination of any witness is dispensed with and the Magistrate taking cognizance can straight way commit the case to the Sessions Court after complying with the provisions of sections 207 and 208. Therefore, according to her, the order of committal made without examining the approver as a witness under section 306(4) of Cri.P.C. is illegal. In support of her contention, she has relied upon a decision in the case of (Uravakonda Vijayaraj Paul v. State)5, reported in 1986 Cri.L.J. 2104 and another decision in the case of (State v. Jagjit Singh)6, reported in 1989 Cri.L.J. 986, in which it is held that sub-section (4) of section 306 of Cri.P.C. casts an obligation on prosecution to examine the approver as witness both in committing Court as well as in the trial Court. So the accused who has been granted pardon has to be examined by the prosecution in the trial Court no matter that he has resiled from his earlier statement in committal Court and tried to conceal what was within his knowledge with regard to the offence in question. There cannot be any doubt regarding the proposition laid down in these cases. There cannot be any doubt regarding the proposition laid down in these cases. It is not disputed that accused Kamalakar has been granted pardon and is taken as approver and his statement has been recorded by the Special Judicial Magistrate as per order passed by the learned Chief Judicial Magistrate, however, his examination as a witness under section 306(4) of Criminal Procedure Code has not been recorded by the learned Chief Judicial Magistrate taking cognizance of offence before committing the case to the Court of Sessions. It is to be noted that despite of the committal of the case without examining the approver in the committing Court, the order of committal was never challenged in revision, which course was open to the accused. It may also be noted that during trial of the said case before the Sessions Court, an application was made by the learned P.P. for sending the case back to the committing Magistrate for examination of accused Kamalakar so as to remove procedural defect by making necessary compliance of section 306(4) of Cri.P.C. however, the accused persons opposed that application. That application came to be rejected, however, fact remains that when the prosecution wanted to cure the defect, the accused persons opposed that application and as such now it is not open to accused to raise the same objection before this Court and to say that the committal order is wrong and illegal and as such it should be set aside and matter should be remitted to the committing Magistrate to take steps right from the recording the statement of the approver and then to commit the case again for fresh trial. Moreover, as the accused persons have opposed the application for sending the matter back to the committing Magistrate to cure the defect by following proper procedure, now the appellant accused cannot be allowed to play fast and loose, to blow hot and cold to approbate and reprobate to the detriment of the opposite party i.e. prosecution. In this regard, it is to be noted that while deciding present sessions case against the appellant, the trial Court has completely ignored the statement of appellant and we have upheld the said finding of the trial Court for the reasons stated in this judgment at para 36. In this regard, it is to be noted that while deciding present sessions case against the appellant, the trial Court has completely ignored the statement of appellant and we have upheld the said finding of the trial Court for the reasons stated in this judgment at para 36. Thus as the statement of appellant is not at all considered in this case, no question of causing any prejudice to the appellant arises in this matter and as such, non-examination of the appellant as an approver by the Chief Judicial Magistrate before committal of case cannot and does not in any way affect the merits of the prosecution case. 38. It is also to be noted that the evidence of Shri Parade, the Jail Superintendent, adduced by the appellant is with reference to the dates on which he was taken from jail on the ground of his medical treatment. According to the appellant he was taken out of jail under the pretext of medical treatment he was taken to the house of Public Prosecutor. The evidence of the defence witness does not in any way support this defence of the accused. According to appellant, he has taken to the house of the Public Prosecutor and he was taught how to give evidence before the Sessions Court and as such he gave statement before the Sessions Court under pressure of the police. It is to be noted that this entire statement given by him before the Court is ignored while deciding the case and, therefore, there is no need to discuss the same. The learned trial Judge had discussed the defence of accused at length and gave cogent reasons and we do not find any reason to differ from his conclusion while rejecting the defence of the accused. 39. In the result, the judgment and order of conviction and sentence, dated 5-11-1996 passed against the appellant by the 4th Additional Sessions Judge, Jalgaon in Sessions Case No. 102 of 1995 for offence punishable under section 120-B and under section 302 r/w 34 of the Indian Penal Code stands confirmed and appeal is dismissed. Appeal dismissed. -----