Judgment G.D. Saxena. J.;- 1. This appeal has been preferred by the accused/appellants having being aggrieved a judgment dated 24th November 2003 of conviction and sentence delivered in Sessions Trial No. 9/2003 by the First Additional Sessions Judge Bhind, convicting appellant/accused No. 1 Ganje @ Gajraj for commission of murder of one Rambabu under Section 302 of I.P.C. and appellant/accused No. 2-Ram Kumar for his joint liability with accused Ganje in commission of murder, which is an offence punishable under Section 302/34 of I.P.C. and sentencing both of them to suffer life imprisonment with a fine Rs. 1000/- each and in default to serve additional six months' rigorous imprisonment. However, by the same judgment, the learned trial court acquitted other co-accused Ram Lakhan of the charge under Section 302/34 of I.P.C. The facts, in short, just for the adjudication of the matter are that on 3rd October 2002, Ram Lakhan, chowkidar and Sudama, Kotwar of village Jakhmoli were informed that one dead-body was lying near funeral ground on the bank of river Sindh. They, after verifying such information, intimated to police station Nayagaon district Bhind. In turn, a Marg Report (Ex.P/2) was written by a Station House Officer and Crime No. 8/2002 was registered. Later on, Marg was inquired into and postmortem of dead body of that unknown person was performed in the District Hospital Bhind. After inquiry, the FIR was lodged on 4th October 2002 against unknown accused at Crime No. 54/2002. During investigation, it appeared from the statements recorded by the Investigating Officer that prior to discovery of dead body in village, at about 11 a.m., all three accused, namely, Ganje @ Gajraj, Ram umar and Ram Lakhan went to the residence of Rambabu at village Karmara (U.P.) and asked him to accompany them for purchase of goats. He on persuasion by all the three accused left for village Jakhmoli and thereafter never returned back. It was gathered in the investigation that accused Ganje @ Gajraj, Ram Kumar, residents of village Jakhmoli (M.P.) and accused Ram Lakhan of village Mahoba, Police Station Madhogarh district Jalon (U.P.) committed his murder. The accused were arrested and after investigation, the charge-sheet was filed before the criminal court, having jurisdiction. On committal the Sessions trial commenced and after recording the evidence, the present accused-appellants were convicted and sentenced for commission of the alleged offence, hence this appeal. 2. The accused were arrested and after investigation, the charge-sheet was filed before the criminal court, having jurisdiction. On committal the Sessions trial commenced and after recording the evidence, the present accused-appellants were convicted and sentenced for commission of the alleged offence, hence this appeal. 2. The contention of the learned Counsel appearing for these two appellants is that the judgment under appeal is against the law and procedure and therefore same is liable to be set aside. It is submitted that to prove the guilt against accused the prosecution examined chance/eye-witnesses, namely, Ramsiya (PW-10) and Kallu (PW-11), witnesses of last seen, namely, Heeralal (PW-8), Dev Singh (PW-13) and Siroman (PW-4) and witness of extra-judicial confession, namely, Udal Singh (PW-3). It is submitted that the statements of above witnesses do not tally with the medical evidence and the time of death and the prosecution by evidence of these witnesses could not be able to prove its case beyond reasonable doubts. Apart from above, all prosecution witnesses were having inimical terms with the accused-appellants and there is a considerable delay in recording the case-diary statements by the I.O., which prima facie, caused prejudice to the accused-appellants. On the aforesaid submissions, it is prayed that by allowing the appeal, judgment under challenge may be set aside and the accused-appellants be acquitted of the charges framed by the trial court. 3. Per contra, the learned Public Prosecutor appearing on behalf of the respondent/State contended that the prosecution succeeded to prove the guilt against the accused by statements of chance/eye-witnesses, the statement of a witness before whom the accused made an extra-judicial confession, by medical evidence as well as recovery of blood stained weapon (Axe) recovered from the accused Ganje @ Gajraj. As regards delay in recording the case-diary statements of witnesses by the I.O., it is submitted that the same will not render any assistance to the accused because the dead body was seen at first instance by the village chowkidar and Kotwar and then they lodged Marg report with the police. The deceased was a resident of another village, situated in another State, which consumed the time for completion of all necessary formalities. The deceased was a resident of another village, situated in another State, which consumed the time for completion of all necessary formalities. It is submitted that initially the FIR was also lodged against unknown miscreant but soon after identification of the dead-body of un-known person on seeing photographs by a witness Shiroman (PW-4), during investigation, a crime was registered against the present accused. The investigation followed a speed and statements of relevant witnesses were recorded. All accused were arrested and the weapon of crime was recovered at the instance of the accused. Other incriminating articles seized from the spot were sent to Regional Forensic Science Laboratory for their chemical examination. The report of the Chemical Examiner/Forensic Science Officer also confirmed presence of the blood stains on the weapon and other incriminating articles. It is thus argued that the prosecution by adducing evidence successfully proved the guilt of the accused and as such the learned trial Judge rightly convicted and sentenced them. Hence, it is prayed that by dismissing the appeal, the conviction and sentence of the accused be upheld. 4. The question for consideration in this appeal is whether the ingredients of offence of murder are proved by the testimonies of chance/eye-witnesses, medical evidence and recovery of weapon used in crime including the motive behind the incident and/or whether the learned trial Judge has committed any illegality in placing reliance on the said materials before reaching at the conclusion. 5. Heard the learned Counsel appearing for the appellants and the learned Public Prosecutor for the respondent/State. Also perused the record of the trial court and the law applicable to the present case. 6. To prove the guilt against the accused, the prosecution examined Shiroman (PW-4), an elder brother of deceased Rambabu. He, was also a witness of last seen and thereafter had an occasion to have identified dead-body of the deceased to be of his younger brother, after seeing photographs of the dead body. Heeralal (PW-8) and Dev Singh (PW-13) are the witnesses, who saw the deceased Rambabu with accused Ganje, Ram Kumar and Ram Lakhan and on asking the deceased he informed to them that he is going to purchase the goats with accused-persons. Ramsiya (PW-10) and Kallu (PW-11) are chance witnesses who visualized the incident of death caused by accused Ganje @ Gajraj on the spot near burial place on bank of river Sindh. Ramsiya (PW-10) and Kallu (PW-11) are chance witnesses who visualized the incident of death caused by accused Ganje @ Gajraj on the spot near burial place on bank of river Sindh. Udal Kori (PW-3) is the witness, who saw accused washing an Axe stained with blood and on his query, accused informed that they had cut Rambabu, a resident of village Karmara, thus, he is a witness of extra-judicial confession. Ram Lakhan Kotwar (PW-2) is a person, who saw the unidentified dead-body, lying near burial ground, just on the bank of river Sindh. Thereafter he informed the police and on his information the marg report was lodged. Dr. O.P. Kastwar (PW-1) posted in the district Hospital Bhind, conducted autopsy on the dead body of unknown person. The weapon of crime (Axe) having blood stains was recovered from accused Ganje in the presence of Ram Lakhan (PW-2) by the Investigating Officer, Sanjeev Nayan Sharma (PW-14) SHO of the police station and S.B. Singh (PW-9) is the person who inquired into Marg relating to death of unknown person. 7. The defence taken by the accused is that some of the prosecution witnesses are related to each other whereas some of them are having inimical relation against the accused and therefore, the false implication of the accused under such circumstances in the present case cannot be discarded. To prove their case, they examined Dilsukhram (DW-1), Lalluram (DW-2) and Govind Singh (DW-3). 8. Now, we are going to consider the evidence of the prosecution in seriatim. 9. Dr. O.P. Kastwar (PW-1) deposed that at the relevant time he was posted as Medical Officer in the District Hospital Bhind. On 4th October 2002 at about 12-30 p.m., he performed postmortem on the dead body of unidentified person, aged 35 years and found following injuries on the person: - (1) Incised wound of size 5 cm. x 1.5 cm. x bone deep extending right side, long cavity on right side epigastrium, right ribs, margin cut; (2) Incised wound of size 4 cm. x 1.5 cm. x bone deep over right side root of neck extending right stero-clevical; (3) Incised wounds two in number one on rite side of cheek extending right side upper limb and lower deep of size 6 cm. x 1.5 cm. x mussels deep and other of size 4 cm. x 1 cm. x 1.5 cm. x bone deep over right side root of neck extending right stero-clevical; (3) Incised wounds two in number one on rite side of cheek extending right side upper limb and lower deep of size 6 cm. x 1.5 cm. x mussels deep and other of size 4 cm. x 1 cm. x mussels deep on middle chin; (4) Incised wound of size 5 cm. x 1.5 cm. x bone deep over left cheek. 10. As per the opinion of the doctor, the external and internal injuries were caused by hard and sharp edged weapon like Axe or farsa. He opined that the above injuries, in the nature of course, were sufficient to cause death. The cause of death was shock and syncope due to excessive bleeding from the injuries. The nature of death was homicidal and was caused with 48 hours from postmortem examination. The said postmortem report is Ex. P/1. 11. Shiroman (PW-4), brother of deceased, Heeralal (PW-8), Dev Singh (PW-13) are the witnesses of last seen of deceased Rambabu with accused Ram Lakhan, Ganje @ Gajraj and Ram Kumar, local residents of the village on the day before incident in village Karmara, district Jalon (U.P.). 12. Shiroman (PW-4) in his evidence deposed that seven months ago in the month of Kuwar (October) at about 11-12 a.m., in the noon, accused Ganje, Ram Lakhan and Ram Kumar visited his residence and asked Rambabu to go to village Jakhmoli for purchase of the goats. Rambabu, his brother refused to accompany them but ultimately at the insistence of the accused, he after taking money to purchase goats, went with them to place Mahoba (U.P.), from where he did not return back. After 4-5 days, accused Ram Lakhan met the witness. On query, accused Ram Lakhan informed that his brother had gone in relationship. Thereafter, police Nayagoan (M.P.) reached in his village and by showing the photographs of dead body asked him to identify. On having a look, he found that the photograph was of no one else but was of his missing brother Rambabu. This witness further deposed that 6-7 years before the incident, goat of accused Ram Lakhan was stolen and he expressed his doubt over his brother Rambabu. Rambabu was unmarried and he came into interaction with Rambeti, daughter of Sitaram Teli, a resident of Mahoba. This witness further deposed that 6-7 years before the incident, goat of accused Ram Lakhan was stolen and he expressed his doubt over his brother Rambabu. Rambabu was unmarried and he came into interaction with Rambeti, daughter of Sitaram Teli, a resident of Mahoba. The accused Ram Lakhan also developed an illegal relation with Rambeti. This was the reason that the accused had jealous relation with his brother which was the motive of untimely death of his brother. Accused Ram Lakhan and Ram Kumar were nephews of accused Ganje @ Gajendra. 13. Heeralal (PW-8) deposed that on the day of month Kuwar (October), in the evening, Rambabu accompanied with accused Ram Lakhan, Ram Kumar and Ganje met the witness, while he was returning back after grazing his cattle from forest to village. Rambabu greeted the witness. On being enquired, Rambabu informed him that he is going to purchase the goats to village Jakhmoli, district Bhind and thereafter the witness went back to his village. After 8 days, Police Nayagaon district Bhind (M.P.) came to his village Karmara (U.P.) and by showing the photograph of Rambabu also informed that Rambabu was murdered near village Jakhmoli. In cross-examination, he deposed that the distance of village Jakhmoli where Rambabu was found lying dead and his residence at village Karmara (U.P.) is about 4 kose. He stated that accused Ram Kumar, resident of village Jakhmoli usually visited his village and met him, therefore, he knew him. 14. Dev Singh (PW-13) deposed that he is acquainted with accused Ram Kumar and Ganje @ Gajraj, however he did not know about third accused. He stated that in the month of Kuwar (October) at about 11 a.m., he alongwith Ram Prasad, Heeralal and Ramsnehi etc., residents of the same vicinity was returning back from forest after grazing his cow, at that moment, he saw accused named above with Rambabu. On his asking, Rambabu informed that he alongwith accused was going to village Jhakhmoli to purchase the goats. He stated that he saw accused Ganje @ Gajraj and Ram Kumar for the first time on that day and Rambabu introduced the accused to him. After eight days of said meeting with Rambabu, Police Officer of Police Station Nayagaon (M.P.) visited his village and informed that Rambabu was murdered, after showing photographs of the dead-body. He identified the photographs of deceased to be of one Rambabu. After eight days of said meeting with Rambabu, Police Officer of Police Station Nayagaon (M.P.) visited his village and informed that Rambabu was murdered, after showing photographs of the dead-body. He identified the photographs of deceased to be of one Rambabu. It is true that these witnesses may be related to deceased or someone may have interest with deceased, but it does not appear from the conduct of the witnesses that they have any inimical relation with the accused. 15. Ramsiya (PW-10) and Kallu (PW-11) are chance witnesses of seeing the incident. Both these witnesses deposed that near about 4-5 months ago, in the month of Kuwar (October), she buffalo of Ramsiya was lost. In the late evening, they went to search of lost she buffalo and proceeded at the bank of river Sindh and found there animal just near funeral ground, after exercise of two and half hours. In moonlight, when they were returning to their residences to village Jakhmoli, they saw accused Ganje @ Gajraj, having an Axe with Ram Kumar and Rambabu going towards river Sindh. They (witnesses) doubted and suspected that something might happen. So, they chased the accused mentioned above and Rambabu. After crossing ahead, they hide themselves and set at the place near bank of river Sindh. Ram Kumar asked Rambabu to smoke a bidi and thereafter all these three set on the ground. Accused Ganje @ Gajraj was sitting behind the two. The witnesses stated that thereafter accused Ganje assaulted with an Axe on the head of Rambabu. When Rambabu tried to rescue from the clutches of accused, accused Ram Kumar caught hold of him and then accused Ganje @ Gajraj again inflicted 3-4 blows by an Axe on the body of Rambabu. After incident, both the witnesses left the spot and went at some hillock place where they discussed the matter. At that juncture, the accused appeared to them and they asked as to where did the witnesses go. The witnesses asked that they went in search of their she-buffalo. The accused then threatened them not to narrate the incident to anyone else they would also be killed. Due to fear of threat the witnesses did not disclose about the incident to anyone in the village. After 8-9 days of the incident, they informed about the incident to the police officer who visited their village for inquiry about death of Rambabu. 16. Due to fear of threat the witnesses did not disclose about the incident to anyone in the village. After 8-9 days of the incident, they informed about the incident to the police officer who visited their village for inquiry about death of Rambabu. 16. Sanjeev Nayan Sharma (PW-14) Investigating Officer/In-charge of the Police Station Nayagaon, district Bhind deposed that during investigation on 11th October 2002, he arrested accused Ganje @ Gajraj vide arrest memo (Ex.P/6) and after arrest, the accused informed about the weapon of crime. Then, he prepared memorandum under Section 27 of the Evidence Act in the presence of the witnesses. Accused Ganje @ Gajraj produced the weapon (Axe), marked as an Article-A which was seized by the I.O. as per seizure memo (Ex.P/8). 17. Ram Lakhan Kotwar (PW-2) supported the version of the I.O. Sanjeev Nayan Sharma (PW-14) and deposed that police arrested accused and after arrest, accused Ganje @ Gajraj informed about the weapon of crime (Axe) to police as per memorandum (Ex.P/7). Thereafter accused Ganje @ Gajraj under police custody produced from the house of Shiv Dayal (uncle of the accused), the weapon of crime stained with blood on its wooden part and back of blunt side, which was seized vide seizure memo (Ex.P/8). 18. Udal Kori (PW-3) deposed that police arrested all accused in his presence. After arrest, the police in custody brought accused to the house of Shiv Dayal Kori, uncle of accused Ganje from where accused produced the weapon (Axe) and accordingly, it was seized. The witness again deposed that prior to seizure of the Axe, at about 7 a.m., in the morning, while he was going to attend natural call, he saw from front of his house that accused Ganje and Ram Kumar were washing the blade of an Axe in the house of Shiv Dayal. On making inquiry, the accused informed that they killed Rambabu, resident of Karmara. It was advised to the witness that if the same was disclosed, he will meet the said treatment. 19. Superintendent of Police Bhind sent the articles seized from the spot and Axe seized from accused Ganje, under a sealed cover to the Regional Forensic Laboratory Gwalior. On making inquiry, the accused informed that they killed Rambabu, resident of Karmara. It was advised to the witness that if the same was disclosed, he will meet the said treatment. 19. Superintendent of Police Bhind sent the articles seized from the spot and Axe seized from accused Ganje, under a sealed cover to the Regional Forensic Laboratory Gwalior. On conduction of chemical examination, by the Scientific Officer and Assistant Chemical Examiner of the State of Regional laboratory, the presence of human blood on the Axe seized from accused Gajraj Kori was confirmed but it was opined that blood stains on the weapon were not sufficient to hold serum examination. 20. Ram Lakhan (PW-2) deposed that on 3rd October 2002, in the month of Kuwar, some villager of village Jakhmoli informed him about bead body lying on the bank of river. Then, he went at the place and saw one bead-body of unknown person. Lower part of the dead body was in the water and upper part of body was on the bank. After seeing dead body, he went to Police Station Nayagaon and reported the incident. On his report, the police recorded Marg Report (Ex.P/2). Thereafter, he with police came back to the spot. The police issued Safeena Form vide Ex. P/3 to the witnesses for preparation of Panchnama of the dead body. Then in the presence of the witnesses, Panchnama (Ex.P/4) was prepared. When the witness saw the body, he found three cut-injuries on temple region, back of neck and on chest of the deceased. 21. S.B. Singh (PW-9) conducted the Marg Inquiry. On 4th October 2002 he reached on the spot and issued Safeena Form (Ex.P/3) and called the witnesses for preparation of Panchnama of the dead-body which, later on, was prepared vide Ex. P/4. He also prepared the memo for postmortem of the body (Ex.P/17) and seized blood stained and plain earth vide Ex. P/10. Also recovered from the spot one piece of terrycloth (Safee) to confirm the place of incident. During Marg inquiry, he recorded statement of Ram Lakhan Kotwar (PW-3) and Sudama a Village Watchman. He also seized the sealed packet received from Hospital. He stated that during inquiry, the dead body was not identified, so the accused could not be ascertained. 22. Also recovered from the spot one piece of terrycloth (Safee) to confirm the place of incident. During Marg inquiry, he recorded statement of Ram Lakhan Kotwar (PW-3) and Sudama a Village Watchman. He also seized the sealed packet received from Hospital. He stated that during inquiry, the dead body was not identified, so the accused could not be ascertained. 22. Sanjeev Nayan Sharma (PW-14) further deposed that during inquiry on 4th October 2002, he recorded statements of witnesses Ram Lakan (Kotwar) and Sudama (Village Watchman). Thereafter on 8th October 2002, he recorded statement of witness Udal Kori of Jakhmoli and on 9th October 2002 of witness Shiroman, on 11th October 2002 of witnesses Kallu and Ramsiya, residents of village Karmara (U.P.) and on 24th October 2002 he recorded statements of witnesses Dev Singh and Heeralal, residents of village of Karmara and Sube Singh and Constable Sunil Pandey. On 11th October, 2002, he arrested accused Ganje @ Gajraj, Ram Kumar, and Ram Lakhan and at their behest seized weapon (Axe) from accused Ganje @ Gajraj. 23. To sum up the prosecution evidence as discussed above, it is proved that:- (i) 3rd October 2002 on the bank of river (Sindh) in the village Jakhamoli, Police Station Nayagoan district Bhind (M.P.), one dead body was lying and on report by Ram Lakhan Kotwar, Marg vide (Ex.P/2) was registered. During inquiry, a spot map (Ex.P/5) was prepared. Blood stained soil and simple soil from spot and one piece of cloth (Safee) were seized as per memo (Ex.P/10). As per Chemical Examiner report of the Regional Forensic Science Laboratory, Gwalior dated 29th April 2003 and report from the State Forensic Science Laboratory Sagar (M.P.) dated 31st May 2003, presence of human blood was confirmed on blood-soaked soil and the piece of cloth (Safee) recovered from the spot. It is proved that the place of death was at the distance of 8-10 feet away from the place where dead body was lying, i.e., bank of river Sindh which justifies that after committing murder of the deceased, the body was dragged and put on the bank of river. (ii) During marg inquiry, on direction of the Inquiry Officer, photographs (Ex.P/14 & Ex. P/15) for identification of dead body of unknown person were taken by a witness Subey Singh (PW-12), a private photographer. (ii) During marg inquiry, on direction of the Inquiry Officer, photographs (Ex.P/14 & Ex. P/15) for identification of dead body of unknown person were taken by a witness Subey Singh (PW-12), a private photographer. During investigation, for identification of photographs of the dead body, drawn by photographer Subey Singh (PW-12), same were produced before Shiroman (PW-4), brother of deceased Rambabu, Bhagwati Prasad Dubey (PW-6), residents of village Karmara in the presence of Sarnam Singh (PW-7), and identification memo (Ex.P/16-A) of that was prepared by the I.O. Sanjeev Nayan Sharma (PW-16). Now, it is proved by cogent evidence collected above by the prosecution that dead body of unknown person was of Rambabu. (iii) Shiroman (PW-4) Heeralal (PW-8) and Dev Singh (PW-13) by their evidence proves that prior to the date of incident, all the three accused Ganje @ Gajraj, Ram Kumar and Ram Lakan went to the residence of Rambabu and persuaded him to accompany them to go to village Jakhmoli for purchasing the goats and thereafter deceased Rambabu left his village Karmara (U.P.) with accused. When Rambabu did not return back for three-four days, his brother Shiroman (PW-4) asked accused Ram Lakhan about his whereabouts. Accused Ram Lakhan informed that Rambabu might have gone some where in his relations and Shiroman thought that Rambabu might have gone to his sister's house in village Bidwa, Police Station Nayagoan (M.P.) Thus, from their evidence it is proved beyond doubts that deceased was last seen with the accused and thereafter he was not seen alive. (iv) Ramsiya (PW-10) and Kallu (PW-11) who were chance witnesses to the incident deposed and proved that on the fateful day of incident she-buffalo was lost and they both in search of lost she-buffalo went to the bank of river Sindh. After making sincere efforts for 2-3 hours, she-buffalo was searched. As they were returning with she-buffalo, they saw accused Ganje @ Gajraj having an axe in his hand, Ram Lakhan and Ram Kumar with Rambabu who were proceeding towards river Sindh, which created a doubt in their minds and so they (witnesses) sitting on height by hiding themselves could be able to see the incident. They saw that all accused and Rambabu set on earth and Rambabu was asked to smoke and then accused Ganje @ Gajraj inflicted an Axe blow on his head. They saw that all accused and Rambabu set on earth and Rambabu was asked to smoke and then accused Ganje @ Gajraj inflicted an Axe blow on his head. Rambabu tried to run away, but he was caught hold by another accused and then Ganje @ Gajraj inflicted three-four blows on back of neck and other parts of body, resulting into his death. (v) On perusal of the postmortem report (Ex.P/1) and statement of Dr. O.P. Kastwar (PW-1) who conducted postmortem of unknown person, whose dead body was subsequently identified by the witnesses as mentioned above, memo of dead body (Ex.P/4), prepared by witness S.B. Singh (PW-9) Sub-Inspector, in presence of Ramsiya (PW-10) and Sudama (PW-5) residents of village Jakhmoli, it is clear that three incised wounds (ante-mortem) were found on chest, root of neck, and face of the person of deceased, which were inflicted by an Axe and sufficient to cause death. (vi) On perusal of statement of Udal Kori (PW-3), it appears that the witness prior to recovery of an Axe from accused Ganje @ Gajraj and after incident saw from front of his house that accused Ganje and Ram Kumar were washing an Axe in the house of Shiv Dayal, uncle of accused Gajraj of village Jakhmoli and on query, accused Ganje informed that he killed Rambabu, resident of Karmara (U.P.) and also threatened him not to disclose to anyone else he will be killed. The weapon (Axe) having blood stains was recovered on production by accused Ganje @ Gajraj vide recovery memo (Ex.P/8) by Sanjeev Nayan Sharma (PW-18). Presence of blood on the seized Axe was found by Assistant Chemical Examiner vide his report dated 29th April 2003. (vii) Shiroman (PW-4), Heeralal (PW-8) and Dev Singh (PW-13) all stated that prior to the incident, accused Ram Kumar with other accused Ganje and Ram Lakhan visited the residence of Rambabu (deceased) and persuaded him to accompany them to village Jakhmoli to purchase the goats and were last seen with deceased Rambabu. As per version of Shiroman (PW-4), the enmity with accused Ram Lakhan due to theft of goat belonging to the accused and an illegal relations of deceased Rambabu with Rambeti, daughter of Sitaram Teli of Mahoba also stands proved. No enmity with accused Ram Kumar against deceased ever existed nor was proved by the witnesses examined by the prosecution. As per version of Shiroman (PW-4), the enmity with accused Ram Lakhan due to theft of goat belonging to the accused and an illegal relations of deceased Rambabu with Rambeti, daughter of Sitaram Teli of Mahoba also stands proved. No enmity with accused Ram Kumar against deceased ever existed nor was proved by the witnesses examined by the prosecution. Ramsiya (PW-10) and Kallu (PW-11), the chance witnesses to the incident also stated that accused Ganje, Ram Kumar and Ram Lakhan alongwith deceased Rambabu were going towards river and they were present on the spot. 24. In this case, appellant No. 2 Ram Kumar was charged with the offence punishable under Section 302 of I.P.C. read with Section 34, I.P.C. for having shared common intention of murder of Rambabu by co-accused-Ganje @ Gajraj Singh. For proving common intention, there must be evidence, direct or circumstantial, showing that the accused Ram Kumar had shared common intention of other accused and offence was committed in furtherance of common intention of all. 25. Common intention presupposes prior consent. It requires a pre-arranged plan, which can be formed suddenly. It is a question of fact in each and every case. As held by Apex Court in the case of Dukhmochan Pandey Vs. State of Bihar 1997 (35) All Cri C 727 : AIR 1998 SC 40 , the existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot, during the progress of the crime. Usually, it implies a pre-arranged plan, which in turn presupposes a prior meeting of mind. But in a given case such common intention may develop at the spur of the moment in the course of the commission of offence, but such common intention, which developed at the spur of moment is different from similar intention actuated a number of persons at the same time, and, therefore, the said distinction must be borne in mind, which would be relevant in deciding whether Section 34 of I.P.C. can be applied to all those, who might have made some over-attack on the spur of moment. 26. In Krishna Singh Vs. 26. In Krishna Singh Vs. State of Bihar (1888) 2 SCC 95= AIR 1988 SC 863 , the Hon. Apex Court held as under:- The question is whether the crime was committed by the appellant in furtherance of the common intention of other accused also. Common intention under S. 34, IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, it is difficult to hold, in the facts and circumstances of the case, that they had shared the common intention with prime accused-appellant. Mere fact that the co accused was found in the company of the main accused at the time of occurrence was not sufficient to impute common intention to them. When this appellants were very much known to the eye-witnesses, non-mention of their names in the evidence as to his participation in incident upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of this appellants also cannot, therefore, be sustained. 27. From discussion of the evidence on record, it is proved that the author for causing fatal injuries to deceased by means of an Axe was accused Ganje @ Gajraj alone. It is only in the evidence of witness Ramsiya (PW-10) that after giving first blow by an Axe by accused Ganje, when Rambabu (deceased) tried to run away, accused Ram Kumar caught hold of him and then accused Ganje @ Gajraj inflicted 3-4 blows with an Axe on the person of Rambabu. On the contrary, from the evidence of another chance witness Kallu (PW-11) who accompanied Ramsiya (PW-10), it did not smear out that accused Ram Kumar caught hold of deceased Rambabu, after giving first blow with an Axe by Gajraj @ Ganje. This witness has stated something different from Ramsiya that after inflecting blows with an Axe by accused Ganje @ Gajraj to Rambabu, when Rambabu died then accused Ram Kumar told accused Ganje to leave the place. This is material contradiction in evidence of these two witnesses with respect to participation of accused Ram Kumar in the incident. This witness has stated something different from Ramsiya that after inflecting blows with an Axe by accused Ganje @ Gajraj to Rambabu, when Rambabu died then accused Ram Kumar told accused Ganje to leave the place. This is material contradiction in evidence of these two witnesses with respect to participation of accused Ram Kumar in the incident. Udal Kori (PW-3) deposed that he saw accused Ganje @ Gajraj and Ram Kumar washing blood soaked Axe in the house of Shiv Dayal, uncle of accused Ganje @ Gajraj, which was situated in front of his house. On his query accused Ganje @ Gajraj informed that he caused the death of Rambabu of Karmara village and he also threatened him not to narrate about the incident to anyone otherwise he will be killed. So, this witness only implicates accused Ram Kumar with prime accused Ganje in washing the blood soaked blade of an Axe used in causing death of Rambabu. Hence, the presence of accused Ram Kumar (appellant No. 2) on the spot as last seen and on the spot of main incident with main accused Ganje @ Gajraj and acquitted accused Ramlakhan is established but his participation in the incident in causing injuries to the deceased resulting into his death is beyond clog of doubts. 28. There is thus no evidence on record to prove that the accused-appellant No. 2-Ram Kumar had prior meeting of minds and intended to commit murder of Rambabu. From the above evidence it can only be inferred that the common intention of appellant Ram Kumar was not to commit murder of Rambabu and had no ill-will, grudge or motive to finish his life. It is true that there may be no prior intention and it may develop subsequently on the spot but in this case there is also no such evidence. Three-four blows were inflicted on the person of Rambabu (deceased) by one of the co-accused was individual act of the said particular accused. The causing of the injuries by means of an Axe was, thus, solitary act of appellant Ganje @ Gajraj Singh, as there is nothing on record to show that prior to causing injuries to the deceased, the other appellant Ram Kumar had exhorted, motivated or instigated him to do so. The causing of the injuries by means of an Axe was, thus, solitary act of appellant Ganje @ Gajraj Singh, as there is nothing on record to show that prior to causing injuries to the deceased, the other appellant Ram Kumar had exhorted, motivated or instigated him to do so. Thus, we are of the view that appellant Ram Kumar had no common intention with accused-appellant Ganje @ Gajraj Singh to commit murder of Rambabu and, therefore, he is entitled to be acquitted of the offence punishable under Sections 302/34 of I.P.C. 29. It is true that role of washing the blood soaked Axe with prime accused Ganje @ Gajraj appears from the evidence of Udal Kori (PW-3). So, the accused Ram Kumar may be held guilty only to that extent for causing disappearance of the material evidence with an intention to screen the offender from legal punishment with death or life imprisonment, which is an punishable under Section 201 of I.P.C. However, no such charge for offence punishable under Section 201 of I.P.C. was framed prior to judgment against accused Ram Kumar by the learned trial Judge and therefore the question which arises for consideration before this Court is whether at this stage, the accused can be convicted for the offence of which no charge was framed against him. 30. It is settled law that the accused persons should get fare chance to defend them against specific charges during trial. It is apparent from the records that even the trial court has not framed charge under Section 201 of I.P.C. against the accused and therefore to convict the present appellant Ram Kumar for the alleged offence is not justified. However, in the case of Kalawati Vs. State of H.P. ( AIR 1953 SC 131 ), the accused was acquitted under Section 302 and conviction was entered under Section 201 I.P.C. The question primarily was whether in the absence of charge under Section 201 of I.P.C., an accused can be convicted under Section 201 I.P.C. when the charge was under Section 302 r/w 114 of I.P.C. alone. The observations were made under those circumstances. No conviction was simultaneously entered both under Section 302 I.P.C. and Section 201 I.P.C. 31. Further, in Sukhram Vs. State of Maharashtra ( AIR 2007 SC 3050 ), the Hon. Apex Court has been pleased to observe:- 18. The observations were made under those circumstances. No conviction was simultaneously entered both under Section 302 I.P.C. and Section 201 I.P.C. 31. Further, in Sukhram Vs. State of Maharashtra ( AIR 2007 SC 3050 ), the Hon. Apex Court has been pleased to observe:- 18. The first paragraph of the section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence; and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown. 19. In Palvinder Kaur Vs. State of Punjab this Court had said that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; that the accused knew or had reason to believe that such offence had been committed; with requisite knowledge and with the intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. It was observed that the court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be. (Also see Suleman Rahiman Mulani Vs. State of Maharashtra Nathu Vs. State of M.P., V.L. Tresa Vs. State of Kerala). 20. It was observed that the court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be. (Also see Suleman Rahiman Mulani Vs. State of Maharashtra Nathu Vs. State of M.P., V.L. Tresa Vs. State of Kerala). 20. In the present case, indubitably there is no eyewitness and the prosecution had sought to establish the case against the appellants from circumstantial evidence. It is trite to say that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence. Therefore, the evidence has to be carefully scrutinised and each circumstance should be dealt with carefully to find out whether the chain of the established circumstances is complete or not. (See Dhananjay Chatterjee Vs. State of W.B.). It also needs to be emphasised at this stage itself that in a case based on circumstantial evidence motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning. 21. In the present case, the motive was alleged to be the greed for dowry and desire of appellant A-2 to have illicit relationship with the deceased, which theory, as noted above, has been rejected by the High Court while acquitting the appellant for offences under Sections 304-B and 498-A IPC. Therefore, there is no gainsaying that the prosecution failed to establish the existence of a motive. It is in this background that it has to be examined whether the evidence and the circumstances relied upon by the High Court while recording the conviction of appellant A-2 are consistent with the hypothesis of the guilt of the said appellant. 22. The sole reason given by the High Court for holding appellant A-2 guilty of offence under Section 201 IPC is the circumstance flowing from the evidence of PW 12, wherein she had stated that: "Accused 1 and the deceased Meerabai were sleeping in one room and we were sleeping in the other room." Undoubtedly, the mainstay of the prosecution case was the testimony of PW 12. There is absolutely no other evidence or circumstance attributing to A-2 the knowledge of the commission of offence in respect of his daughter-in-law Meerabai. Merely because he happened to be father of appellant A-1, it cannot be presumed as a matter of legal proof that he must be deemed to have the knowledge of the offence committed by his son. Even if the evidence of PW 12 is taken at its face value, though the witness was declared hostile and had been cross-examined by the prosecution counsel, mere presence of appellant A-2 in the house, in our opinion, is not sufficient to draw a presumption that he had the knowledge of commission of offence by his son, appellant A-l. There is no other established circumstance to complete the chain to bring home the offence under Section 201 IPC. We are of the view that the prosecution has failed to establish that the conduct of appellant A-2, both at the time of the occurrence and immediately thereafter, is consistent with the hypothesis of his guilt. We have therefore, no hesitation in holding that the learned Judges of the High Court were in error in convicting appellant A-2 for having committed offences punishable under Sections 302 and 201 IPC. 32. Therefore, following the binding precedent of the Constitution Bench in Kalawati (supra) and the later decision of the Apex Court in the case of Sukhram (supra) we take the view that a further conviction under Section 201 I.P.C. after having entered conviction for the principal offence under Section 302 of I.P.C. is unnecessary and not justified at least as a matter of practice. However, where the accused is acquitted of the principle offence under Section 302 of I.P.C., his acquittal shall create legal impediment for convicting him under Section 201 of I.P.C. without further there being any charge for the offence under Section 201 of I.P.C., is a question to be decided before us. A similar question was raised before their Lordships of the Judicial Committee of the Privy Council in the case of Begu Vs. The King-Emperor, 52 Ind. App. 191(p.c.). It was argued before their Lordships that the conviction of the appellants before the Judicial Committee under Section 201 of I.P.C., without a charge under that section, was a serious departure from the procedure laid down in the Code of Criminal Procedure. The King-Emperor, 52 Ind. App. 191(p.c.). It was argued before their Lordships that the conviction of the appellants before the Judicial Committee under Section 201 of I.P.C., without a charge under that section, was a serious departure from the procedure laid down in the Code of Criminal Procedure. In that case the initial conviction was for murder under section 302 of the Indian Penal Code, but the High Court had set aside that conviction and substituted a conviction under the lesser section 201. After discussing the provisions of sections 236 and 237 of the Code of Criminal Procedure (corresponding sections 221(1) and 221(2) of the New Code), their Lordships made the following observations which fully cover the present controversy:- A man may be convicted of an offence, although there has been no charge in respect of it if the evidence is such as to establish a charge that might have been made. 33. It will be noticed that in the case before the Privy Council (supra), the alteration was not only in respect of the section but also of the substance of the accusation, but as the lesser offence under section 201 had been made out by the evidence led on behalf of the prosecution which was primarily for an offence of murder, their Lordships ruled that sections 236 and 237 of the Code of Criminal Procedure (corresponding sections 221(1) and 221(2) of the New Code), authorise the Court to alter the conviction and the sentence to be passed in respect of the offence made out in the evidence. Therefore, in the opinion of this Court, there shall be no legal bar to convict the accused under Section 201 of I.P.C. in such cases. 34. Resultantly, in our conclusion, we confirm the conviction of accused-appellant No. 1-Ganje @ Gajaraj who caused death of Rambabu for offence of murder punishable under Section 302 of I.P.C. and sentence as awarded to him by the learned trial Judge. Thus, appeal of accused Ganje @ Gajraj is dismissed. However, the appeal filed by accused-appellant No. 2- Ram Kumar stands allowed in part setting aside his conviction and sentence for commission of offence under Section 302/34 of I.P.C., but he is held guilty of committing the offence punishable under Section 201 of I.P.C. and sentenced to suffer three years' rigorous imprisonment. The appellant No. 2-Ram Kumar is in jail. However, the appeal filed by accused-appellant No. 2- Ram Kumar stands allowed in part setting aside his conviction and sentence for commission of offence under Section 302/34 of I.P.C., but he is held guilty of committing the offence punishable under Section 201 of I.P.C. and sentenced to suffer three years' rigorous imprisonment. The appellant No. 2-Ram Kumar is in jail. The period of detention if any undergone by this accused during investigation, inquiry or trial of the case and before the date of conviction by the trial court shall be set off against the term of sentence of rigorous imprisonment imposed on him by this Court. Only thereafter if he is found to have suffered the sentence of rigorous imprisonment under Section 201 of I.P.C., he be set at liberty, if not warranted in any other criminal case.