Bihari Lal and Sh. Nathi Ram @ Nathi vs The State (Delhi Administration)

V.B. Gupta, J.—By way of present appeal, the above named appellants have challenged the judgment dated 14th December, 1993 of the Additional Sessions Judge, Karkardooma, Delhi vide which they were convicted u/s 302 read with Section 34 Indian Penal Code (for short as ''IPC'') and sentenced to undergo rigorous imprisonment for life and fine, of Rs. 500/- each, in default of payment of fine, to further undergo rigorous imprisonment for six months.

During the pendency of the appeal, appellant Bihari Lal was ordered to be released on interim bail for 15 days, vide order dated 5th June, 1995 passed by a Division Bench of this Court. Consequently, he was released on 25th June, 1995 but failed to surrender on the expiry of the period of bail. Proceedings for his arrest were commenced by the Metropolitan Magistrate, P.S. Seema Puri. Since appellant Bihari Lal could not be arrested, he was declared as proclaimed offender on 15th February, 1999. Proceeding u/s 446 Cr.P.C. were initiated against his surety and a penalty of Rs. 10,000/- was imposed upon the surety.

In view of the fact that appellant Bihari Lal is a proclaimed offended consequently, this Court appointed Sh. Bhupesh Narula, Advocate as Amicus Curiae to represent him also before this Court since he was already representing appellant No. 2, Nathi Ram, who is brother of appellant, Bihari Lal.

The brief facts of this case are that on 31st October, 1990 at about 8.05 p.m., PW 2 Satbir Singh, who is brother of the deceased Nawab, lodged a report with Police Post, Guru Teg Bahadur Hospital that his brother Nawab had been stabbed with a knife by Bihari Lal and Nathi, the appellants in this case, in Kalandar Colony, on which D.D. No. 31 (Ex PW 2/B) was recorded and the same was handed over to PW 15 Subhash Chand, S.I. who along with Phool Singh, A.S.I., Satpal Singh, Head Constable and Satbir Singh, Constable, reached at the jhuggi of Bihari in Kalandar Colony and found the dead body of Nawab which was lying there on the cot in the jhuggi. There were cut marks on his neck and blood was lying over his clothes as well as on the ground. The dead body was identified by his brother Satbir Singh PW 2 (who is the complainant). PW 2 also got his statement recorded wherein he stated that on that date at about 5.00 p.m., he along with his brother Nawab had come to Kalandar Colony, Dilshad Garden to see Bihari Lal who was known to them earlier, since the wife of appellant Bihari Lal, belonged to their village. Bihari Lal had invited his brother Nawab to his jhuggi on that date. At that time, Nathi, brother of Bihari Lal, was also present in the jhuggi. Bihari Lal had already arranged for a bottle of liquor and all of them started taking liquor.

While they were taking liquor, Bihari Lal and his brother Nathi started abusing and quarrelling with Nawab by saying that Nawab was having illicit relations with their sister and for that reason they will not leave him alive. Bihari and Nathi laid Nawab on the cot and Nathi caught hold of Nawab while, Bihari after lifting a knife from the jhuggi stabbed Nawab on his neck and due to fear he (PW 2 Satbir Singh) ran away from there. He informed at his house and lodged a report with the police.

The present case was registered u/s 302/34 IPC against both appellants. The Investigating Officer got the scene of occurrence photographed and prepared a rough sketch of the place of occurrence. After completing the proceedings and after lifting the blood, blood stained earth controlled, two bags and a bottle of liquor and the cot on which the dead body was lying and after sealing these articles, he got the dead body sent for post-mortem.

On 3rd November, 1990, on receiving secret information, appellant Bihari was arrested in presence of PW 2 Satbir Singh and Ram Avtar Singh. Appellant Bihari Lal made a disclosure statement and thereafter he got recovered the blood stained knife and blood stained payjama.

On 6th November, 1990, appellant Nathi surrendered in the Court and thereafter he was arrested.

After completion of the investigation, the appellants were charge sheeted accordingly and sent for trial. Vide order dated 30th May, 1991, charges u/s 302 read with Section 34 IPC were framed against both the appellants. Both the appellants pleaded not guilty and claimed trial.

Prosecution in support of its case examined all 15 witnesses.

Statements of appellants were recorded u/s 313 of Code of Criminal Procedure (for short as ''Code'').

Appellant Bihari Lal in his statement admitted that he and deceased Nawab were known to each other and were on visiting terms with each other. However, he stated that he has been falsely implicated in this case. He knew Nawab who was a bad character. Previously, he had been living in Seema Puri Area and had the company of bad characters and also faced externment proceedings in the Court of District Magistrate, Ghaziabad.

On the date of incident, in the evening hours, on hearing noise he came out of his jhuggi. At a distance of about 15 steps, he saw that a scooter was surrounded by public. On seeing this, he reached there and saw that Nawab was lying in the scooter in injured condition and his neck was cut. However, he was alive. Appellant Bihari has further stated in his statement that he tried to start the scooter, but it did not start, as the plug was missing from the scooter. Then he along with three/four persons lifted Nawab and brought him to his jhuggi and among them were Alam and Shyam Lal. His clothes were blood stained and his wife and grown up children were present in the jhuggi at that time. He made Nawab lie on the cot and poured some water in his mouth. Appellant Bihari Lal further stated that Nawab had died in the jhuggi. Thereafter, he telephoned the police at number 100 and then PW 1 Rohtash, brother of deceased (Nawab). Police came thereafter, who recorded his statement and also of Alam and Shyam Lal and also got their signatures on some papers. The knife was taken from his jhuggi on the same day i.e. on 30th October, 1990 along with other articles. It was a kitchen knife and his clothes were also seized by the police in the police station on the same day.

Appellant Nathi in his statement u/s 313 of the Code admitted that he, appellant Bihari and deceased Nawab were known to each other and were on visiting terms. He also stated that his brother''s wife Chameli belonged to village Lukhrada and deceased Nawab and his brothers, PW 2 Satbir and PW 1 Rohtash also belonged to the said village.

This appellant denied his involvement in this case and stated that he surrendered in the Court due to harassment of the police. He is innocent and has been falsely implicated in this case at the instance of police.

In their defence evidence, appellants examined one witness.

It is contended by learned Counsel for the appellants that there is delay in recording of the FIR, since the time of incident is of 5.00 p.m. whereas D.D. No. 31 (Ex. PW 2/B) was recorded in the Police Post, Guru Tegh Bahadur Hospital at 8.05 p.m. on the statement of PW2, Satbir Singh. The place of occurrence is at short distance from this Police Post and this report has been delayed and the matter was reported at the Police Post after three hours. The explanation given by PW2 that he first went to Seema Puri which is 2 1/2 or 3 Km. away to telephone his brother and then came to Police Post and lodged the report, is most unnatural and unbelievable and has been made to cover the delay in lodging the FIR.

It is further contended that PW 2, who is the brother of the deceased was residing at a place about 25/30 Km. away from the place of occurrence and as he was not present at the scene of occurrence, that is, why he lodged the report in the Police Post after three hours, which shows that his presence was procured after due deliberation to set him up falsely, as an eye- witness.

Another contention is that when D.D. No. 31 (Ex. PW 2/B) was got recorded by PW 2, Satbir Singh at 8.05 p.m., he did not mention the details of the incident and simply stated that his brother has been stabbed by Bihari and Nathi. However, the F.I.R in this case was registered at 9.15 p.m. on the statement Ex PW 2/A given by PW 2, Satbir Singh. In this statement he narrated the details of the incident, which were not there in D.D. No. 31 (Ex. PW 2/B). This goes on to show that when he lodged D.D. No. 31, at that time, he did not know, the time and place of occurrence and as to what had happened at the site. Later on, he manipulated with the police and gave complete details in the F.I.R.

Other contention is that, there is nothing on record to show that PW 2, Satbir Singh was ever invited by appellant Bihari Lal to his jhuggi. The story given by PW 2 that liquor was consumed in the jhuggi of appellant Bihari is falsified from the statement of PW 15, Subhash Chand, S.I., who is the I.O. of this case. PW 15 has stated that he did not notice any smell of liquor from the mouth of PW 2 and there were no glasses or utensils used for drinking liquor found inside the jhuggi. Moreover, PW 2 was not medically examined to ascertain the fact of consumption of liquor. The story of the prosecution about the consumption of liquor has been finally belied by the doctor who conducted the post mortem. PW 13, Dr. L.K. Barua had amply made it clear in his post mortem report as well as in his statement, that he could not trace any evidence of consumption of liquor by the deceased.

It is further contended that if deceased and PW 2 Satbir Singh had gone to meet Bihari in his jhuggi then why did the police not take that three-wheeler into possession.

Another contention is that if PW 2, the brother of the deceased, was present on the spot then why did he not raise any alarm. In cross-examination, he admitted that he did not try to save his brother or catch hold of Bihari but had run away from there. These circumstances also prove that the presence of PW 2, at the spot is doubtful.

Another contention is that if some stains of blood were found on the wall of the jhuggi then why no sample of any stain on the wall of the jhuggi was taken and sent to CFSL.

Another interesting aspect is that the I.O. did not make any inquiry about the incident from any person residing in the neighbourhood of the appellants. When admittedly, the wife and children of appellant Bihari were present in the jhuggi at the time of incident, then why the police did not interrogate them or record their statements.

Recovery of knife and pyjama at the instance of appellant Bihari, is doubtful since I.O. did not join any independent witness at the time of recovery of these articles and the place of alleged recovery is an open place, accessible to everyone.

The dead body was removed to the police station instead of Mortuary and was kept in police station till about 10.00 a.m., which goes to show that police had no evidence of identification of the dead body before it was removed from the spot.

There is no evidence against appellant Nathi that he along with appellant Bihari caught hold of the deceased and threw him on the cot. The case of prosecution is that it was appellant Bihari who picked up the knife lying in the jhuggi and stabbed the deceased on his neck. Thus, there is no evidence to connect the appellants with the commission of the offence and the judgment of trial court is liable to be set aside.

On the other hand, it is contended by learned Counsel for the State that PW 2, Satbir Singh, the real brother of the deceased, who had witnessed the entire incident, had given the true story. Though there are certain minor contradictions, but these contradictions are not material nor do they prove fatal to the case of the prosecution.

It had been clearly established from the evidence on record, that both the appellants committed the murder of deceased Nawab, as the dead body of deceased was found inside the jhuggi of appellant Bihari and blood was also seized from inside the jhuggi. This also proves, that the murder of the deceased was committed inside the jhuggi of appellant Bihari.

Appellant Bihari in his statement u/s 313 of the Code admitted that on the date of incident he after hearing noise came out of his jhuggi and saw Nawab lying in the scooter in injured condition and his neck was cut. He has also admitted that he brought injured Nawab to his jhuggi, and his clothes were blood stained.

As per post mortem report and as per statement of Dr. L.K. Barua, PW 13, who conducted the post mortem of the body of the deceased, there were injuries found on the neck of the deceased which corroborates the prosecution story that appellant Bihari has caused injuries on the neck of the deceased.

Moreover, appellant Bihari has got recovered his blood stained pyjama Ex. P7 and knife Ex. P8 on which the same blood group as that of deceased was found. PW 13, Dr. L.K. Barua has also stated that the injuries which were found on the dead body of the deceased were possible with knife Ex. P8.

It is also contended that as per statement of PW 1 Rohtash Singh and PW 2, Satbir Singh, who are the brothers of the deceased, the motive for appellants to commit the murder of the deceased, has been well established, as appellants were annoyed with the deceased since he was having illicit relations with the sister of the appellants.

In a criminal trial, the burden of proving the guilt of the accused beyond reasonable doubt, always rests on the prosecution and it never shifts. But if an accused wants to rely on a particular fact for discrediting a prosecution witness, that fact must be adequately brought out in the cross-examination of the prosecution witness.

Section 58 of the India Evidence Act, 1872 (for short as ''Evidence Act'') lays down that facts admitted need not be proved. This Section reads as under;

Facts admitted need not be proved- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

Admissions for the purposes of trial, dispenses with the proof of particular facts. This Section makes no exception of criminal trials, but under the proviso, the practice is to insist upon the proof of all the essential facts. An admission by the accused in answer to questions put by the court u/s 313 of the Code cannot be utilized to fill up a gap in the evidence for the prosecution.

In the light of these provisions, it is to be seen as to what is the effect of the admissions made by Bihari Lal in his statement u/s 313 of the Code.

The case of prosecution is that murder of deceased Nawab took place in the jhuggi of appellant Bihari Lal, who stabbed the deceased with a knife while, appellant Nathi caught hold of the deceased. The dead body of deceased Nawab, was lying on the cot in the jhuggi. The three wheeler scooter of deceased was found lying outside the jhuggi of appellant Bihari Lal and there were cut marks on the neck of Nawab and blood was lying over his clothes as well as on the floor of the jhuggi.

Appellant Bihari Lal in his statement u/s 313 of the Code, admitted that outside his jhuggi at a distance of about 15 steps, he saw a scooter which was being surrounded by the public. On reaching there he saw Nawab was lying in the scooter in injured condition and his neck was cut. He along with 3/4 persons lifted Nawab and brought him to his jhuggi. His clothes were blood stained and he made Nawab to lie on the cot. He also stated that Nawab had died in the jhuggi.

So, as per statement of appellant Bihari, deceased Nawab had gone on his three wheeler scooter to meet him and as per appellant Bihari''s version, Nawab had received wounds in his neck and was found lying in the scooter and appellant Bihari brought Nawab to his jhuggi and made him lie down on a cot and in his jhuggi, deceased Nawab had died.

PW 2, Satbir Singh who is the real brother of deceased who was present in the jhuggi of appellant Bihari on the date of incident, had also corroborated these fact that on the date of incident, they had gone to the jhuggi of Bihari in a three wheeler scooter and after having some drinks there, both appellants started abusing the deceased and quarrelled with him. They threatened the deceased that since he was having illicit relations with their sister so they would not leave him alive. Accordingly, both the appellants threw him down on a cot. Appellant Nathi pinned him down while appellant Bihari Lal stabbed in the neck of Nawab.

Thus, appellant Bihari admits that;

(i) He saw deceased Nawab lying in an injured condition in a three wheeler scooter outside his jhuggi.

(ii) Deceased Nawab was lifted from the three wheeler scooter by him and three/four other persons, who brought Nawab inside his jhuggi.

(iii) Clothes of deceased were blood stained and he was to made lie on a cot in the jhuggi.

(iv) Neck of deceased Nawab was cut.

In the light of these admissions made by appellant Bihari Lal and in even view of the prosecution evidence, especially that of eye witness PW 2, Satbir Singh, we have to see whether the evidence produced by prosecution connects the appellants with commission of crime.

During the course of investigation, blood was seized from inside the jhuggi. Appellant Bihari also got recovered his blood stained pyjama Ex. PW 7 and the knife Ex.PW 8. On these exhibits, the same blood group, as that of the deceased was found. Doctor L.K. Barua (PW 13) who conducted the post-mortem of the body of the deceased, had also mentioned in his report Ex.PW 13/B that the injuries which were found on the dead body of the deceased, were possible with the knife Ex.PW 8.

From the statements of PW1 Rohtash and PW 2 Satbir Singh, who are the brothers of the deceased, motive for the appellants to commit the murder, also stands prove since, both the appellants were annoyed with the deceased, as he was having illicit relations with their sister.

Much stress has been laid down by learned Counsel for the appellants that trial court failed to appreciate the importance and value of the F.I.R. The alleged incident took place at 5.00 p.m. while there has been a delay of three hours in lodging the report and the explanation given by PW 2 Satbir Singh, that he first went to Seema Puri 2 1/2 to 3 kms away to telephone his brother and then went to police post, Guru Tegh Bahadur Hospital to lodge a report, which is most unnatural and unbelievable. This story has been made just to cover the delay in lodging the FIR.

As far as delay of lodging of the FIR is concerned, it has been laid down by the Supreme Court in Apren Joseph alias Current Kunjukunju and Others Vs. The State of Kerala, that;

Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.

In State of Himachal Pradesh Vs. Shree Kant Shekari, the Supreme Court reiterated the same principles holding that;

Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not.

As per statement of PW 2, Satbir Singh, he first called his brother PW 1, Rohtash to inform him about the incident and then reported the matter to the police. His act seems to be quite justifiable. The evidence to this effect seems to us to be trust worthy and has not at all been shaken in the cross-examination.

As per Ex PW 2/B (D.D. No. 31), PW 2 Satbir Singh has stated that his brother Nawab has been stabbed with a knife by Bihari and Nathi in Kalandar Colony and they are holding him (Nawab) in the jhuggi.

So, PW 2 at the earliest reported about stabbing of Nawab with a knife by both the appellants and also about the fact that the appellants were holding him in the jhuggi. In the F.I.R., recorded thereafter about one hour, complete details of the incident were mentioned. So, no advantage can be taken by the appellants on this count.

Coming to the reliability of the eye-witness, though it is correct that PW 2 Satbir Singh is the solitary eye-witness in this case and is brother of the deceased, but it is well-settled that quality of the evidence is to be looked into and not the quantity. Even if there is a solitary witness in a case and who is reliable, conviction can be based on the testimony of the solitary eye-witness alone.

In this regard reference may be made to Vadivelu Thevar Vs. The State of Madras, . There the question was whether the Court can convict on the statement of solitary witness or not. It was held that;

(i) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(ii) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses.

As per prosecution case, the fact that the body of the deceased was found inside the jhuggi of the appellants stand proved, as the same has been admitted by the appellant Bihari in his statement recorded u/s 313 of the Code.

The testimony of PW2 is natural and he acted in a normal manner. His testimony is corroborated by the doctor''s Post Mortem report. Thus, he is a reliable witness and conviction can be based on his testimony.

So, after scanning through the entire record including the statement of the witnesses, this fact stands clearly established that deceased Nawab was stabbed on his neck with a knife and he sustained injuries and due to these injuries he died.

The presence of deceased inside as well as outside the jhuggi of the appellants is admitted by appellants themselves. This fact has also been admitted by the appellants that three-wheeler scooter was parked outside their jhuggi and deceased sustained stabbed wound on his neck and was made to lie on the cot where he died later on.

In the light of these facts, incident of stabbing stands clearly proved and it also stands established that stabbing took place inside the jhuggi of appellant Bihari and he died in the jhuggi while lying on the cot.

Even otherwise, the stabbing incident has not been denied by the appellants, since a suggestion was given to PW 2 Satbir Singh on behalf of the appellants that deceased was stabbed by someone in Seema Puri.

Another suggestion given to PW 2 Satbir Singh was that, appellant Bihari had gone to see Nawab in Seema Puri after coming to know that he had been stabbed and Bihari brought Nawab in injured condition to his jhuggi from Seema Puri.

So, from the statement of the eye-witness as well as from the statement of appellant Bihari u/s 313 of the Code, the stabbing of Nawab stands clearly established. Involvement of appellant Bihari is also fully there, though he had taken a different stand in his statement u/s 313 of the Code, as well as in the defence put to the witness, during the course of cross-examination.

The stabbing incident is also corroborated by post-mortem report. Ex PW 13/A, according to which following injuries were found on the body of the deceased;

Bruise around the right eye involving the eyebrows and upper part of the right cheek prominence of an area 5 Cmt.x 4 Cmt.

Bruise over left cheek prominence of area 4 Cmt x3 Cmt.

Incised wound on mid submandibular area above the hyoid bone and slightly over right side placed transversely of size 2 Cmt. X 1 Cmt.

Incised wound on left submandibular area and 2 Cmt. Left to the injury No. 3 mentioned above of size 1.2 Cmt. x .5 Cm. skin to muscle deep.

Incised wound over front of neck over a thyroid cartilage on its upper part of size 8 Cmt. x5 Cmt. x thyroid cartilage out.

Incised wound on the left side part of neck below the left end of injury No. 5 of size 2 Cmt. x0. 5 Cmt.

One incised wound on left side part of neck in 3 Cmt. below the injury No. 5 of size 3 Cmt. x 1.2 Cmt.

Incised wound right side upper part of the neck of size 1.5 Cmt. x 0.5 Cmt. This injury was seen right angular of injury No. 5.

Incised wound on the right side of the neck and 4 Cmt. below the injury No. 8 placed obliquely of size 1.5 Cmt. x 0.5 Cmt.

One incised wound on the right side based on front of neck and 2 Cmt. right to the midline placed obliquely of size 1.5 Cmt. x 0.5 Cmt. wherefrom the medial end was seen trial for 3 Cmt.

Two small incised wounds were seen, one in the cleft between right thumb and index finger and another in palm at the base of right middle finger of size 1 Cmt. and 0.7 Cmt. respectively.

One bruise was seen along with the base right middle ring and finger.

PW 13 Dr. L.K. Barua opined that incised wounds were caused by sharp weapon. Injury No. 3, 5, 6, 7 and 9 individually are sufficient to cause death in the ordinary course of nature. PW 13 has also stated that after examining the weapon, he was of the opinion that incised wound on the body of the deceased could be possible by the knife, Ex P8.

PW 15 Subhash S.I. who is I.O. of this case has stated that he found blood stains on the cot, floor and the walls of the jhuggi. The fact had been corroborated by PW 1, Rohtash Singh also, who in his cross-examination stated that there were some splashes of blood on the wall of jhuggi.

So, this fact proves the version of prosecution, that the murder of deceased had been committed inside the jhuggi of appellant Bihari. Had murder of the deceased been committed at some other place and deceased had been removed to the jhuggi of the appellant, as pleaded by the appellant Bihari, then there was no question that blood stains could be splashed on the wall of the jhuggi of appellant Bihari.

According to PW 2 Satbir, both the appellants threw the deceased on the cot and appellant Nathi pinned down the deceased, while appellant Bihari lifted the knife from inside the jhuggi and stabbed the deceased on his neck. As per disclosure statement of appellant Bihari, he got recovered the blood stained knife Ex P8 and his blood stained pyjama Ex P7, from the bushes near Delhi Development Authority, Office.

This is also evidence on record, that human blood was detected on Ex P7 and Ex. P8, which is clear from CFSL reports, Ex PW 15/D and PW 15/E.

Though there are certain minor discrepancies in the statement of the prosecution witnesses but these shall not prove fatal to the prosecution case. It is well- settled that a witness who is otherwise wholly truthful is liable to be scared by the Court atmosphere and get nervous or may forget the sequence of events. When the statement of witnesses are recorded in the Court after a long time, their memory is bound to fall short and it is but natural, that they will omit certain things and add certain things. We have to see the testimony of the witness as a whole as to whether the witness has withstood the test of cross-examination or not and as to whether he has narrated the true facts of the incident.

In the present case, there is no reason to disbelieve the statement of PW 2 Satbir Singh who has corroborated the prosecution story on all the material points.

As far as the role of appellant Nathi is concerned, the case of the prosecution is that both the appellants had thrown the deceased on a cot and appellant Nathi kept him pinned down, while appellant Bihari lifted the knife lying in the jhuggi and stabbed in the neck of Nawab, causing him fatal injuries.

This fact has not been challenged in the cross- examination and presence of appellant Nathi and role attributed to him in committing the crime appellant, stands clearly established.

In view of the above discussion, we do not find any infirmity or ambiguity in the impugned judgment of the trial court and hold that prosecution has fully proved its case against both the appellants and both the appellants had been rightly convicted u/s 302 read with Section 34 of the IPC.

Appellant Nathi is already on bail. He is ordered to be taken into custody to undergo the sentence as awarded by the learned Additional Sessions Judge. Period of detention already undergone by appellant Nathi, shall be set off in terms of Section 428 of Code.

As far as the appellant Bihari is concerned, since he had already been declared as Proclaimed Offender on 15th February, 1999, so, under these circumstances, whenever he is arrested, he shall undergo the remaining sentence of imprisonment.