Saudagar Singh alias Sagu vs The State of Punjab

Muni Lal Verama, J.—Harnam Singh (since deceased) and Dhan Singh resided in village-Ugoke and Nsthuke respectively. Thaman Singh, who is son of Harnam Singh, and Dhian Singh and Mohinder Singh, who is Harnam Singh''s grandson, too resided is that village Ugoke. Saudagar Singh appellant is the son of the sister of Dhan Singh.

On 1st August, 1936, Harnam Singh, Mohinder Singh and Dhian Singh had escorted some carts which were laden with grain, up to the kutcha path leading to Mogs, and they (Harnam Singh, Mohinder Singh and Dhian Singh) returned towards village-Ugoke. When they reached near a well located within the limits of village-Nathoke, Dhan Singh and the appellant appeared there all of a sudden and took Harnam Singh by surprise. Dhan Singh had a gandasa while the appellant was armed with a dang. Dhan Singh hit gandasa on the back of Harnam Singh, and repeated another blow with it, which landed on his bead, and he (Harnam Singh) dropped under the said blow. The appellant then delivered numerous blows with his dang to his (Harnam Singh). Dhan Singh had also given two further blows with his gandasa to Harnam Singh. Dhian Singh and Mohinder Singh raised alarm, which attracted Mewa Singh and some other persons, but before the arrival of Mewa Singh, the appellant and Dhan Singh had decamped, carrying their weapons with them. Leaving Mewa Singh and Sunder Singh, who had arrived there, near Harnam Singh, Mohinder Singh and Dhian Singh went to their village and informed Thaman Singh about the incident. Thaman Singh collected some men and he carried a cot along with them to the scene of incident, from where they removed Harnam Singh to the house, and then Thaman Singh, along with some other persons, carried him (Harnam Singh) on a cart to Police Station, Bagha Parana. Reaching there at about 1 A.M. Harnam Singh reported the incident at the Police Station He was sent to the Civil Dispensary, where Dr. Nand Lal examined his injuries.

Since the condition of Harnam Singh was serious, the Police moved the Ilaqa Magistrate for recording his statement, and the Ilaqa Magistrate deputed Shri Paras Ram, who was then posted as Honorary Magistrate as Moga, for recording the statement of Harnam Singh. Therefore, Shri Paras Ram went to Civil Dispensary, Bagha Purana, where he recorded the statement of Harnam Singh. Despite the medical aid, Harnam Singh could not survive and he succumbed to his injuries at 11 P.M. on 5th August, 1936, Sh. Inayat Ullah, who was then posted as Head Constable in Police Station, Bagha Purana, held inquest on the dead body of Harnam Singh and despatched it for post mortem examination to Civil Hospital, Moga, where Dr. Tulsi Ram conducted autopsy on it. Dhan Singh was arrested, but the appellant went into ascendance. Dhan Singh was prosecuted, and since the appellant was then absconding, the evidence was recorded u/s 512, Criminal Procedure Code, as against him. Proceedings under sections 87 and 88 of the Code of Criminal Procedure were also taken against the appellant. On trial, Dhan Singh was convicted u/s 302, Indian Penal Cods, for causing the murder of Harnam Singh, and he was sentenced to death. The said death sentence was confirmed by the High Court and was also executed.

The motive for the assault committed by Dhan Singh and the appellant on Harnam Singh was, that in or about the year 1932, Shihan Singh, who was brother of Dhan Singh, was prosecuted in a murder case, and Harnam Singh had then extended an assurance to him (Shihan Singh) that he would help him, but he did not render any help to him in that case. In or about the year 1935, Mohinder Singh was riding a mare while returning from Bagha Purana towards his village. The said mare was frightened and strayed, and Mohinder Singh lost contact with it Harnam Singh had suspected that Dhan Singh had taken the said mere and he (Dhan Singh) had passed it over to some person. Therefore, for the aforesaid two reasons, Dhan Singh was offended against Harnam Singh.

Head Constable Gurbachan Singh succeeded in arresting the appellant on 25th October, 1969, from village Bukanwala. After necessary investigation, the Police, Bagha Purnna, prosecuted the appellant u/s 302, Indian Penal Code, and the learned Magistrate committed him to the Court of Session to stand trial for the said offence. Thus is the prosecution case.

In suppression of the charge framed by the Committing Magistrate, the learned Sessions Judge, Ferozepore, who tried the appellant, charged him u/s 302 read with section 34, Indian Penal Code. The appellant denied the prosecution story and pleaded that he had been falsely implicated. The learned Sessions Judge, however, accepted the prosecution case and convicted him (the appellant) u/s 302 read with section 34, Indian Penal Code, and sentenced him to imprisonment for life. Aggrieved by his conviction and sentence, the appellant has preferred this appeal. The evidence was read out to us and we beard the arguments and examined the record.

Due to the abscondence of the appellant, his trial could not be held for more than 33 years after the incident, and during the said long period, the eyewitnesses, viz., Mohinder Singh and Dhian Singh as well as Mewa Singh, who had appeared at the scene of occurrence immediately after the incident, had died, and the record of the commitment proceedings pertaining to Dhan Singh was also destroyed. Therefore, the prosecution had no alternative but to tender in evidence the certified copies of the statements of Mohinder Singh, Dhian Singh and Mewa Singh, recorded u/s 512, Criminal Procedure Code, as against the appellant daring the commitment proceedings held against Dhan Singh in the year 1936, the same being available to it, and also relied on First Information Report (Exhibit PM), which was made by Harnam Singh, and the statement (Exhibit PL) which was made by him to Shri Paras Ram, Honorary Magistrate, both having attained the status of dying-declarations after his (Harnam Singh''s) death, medical evidence and the abseondence of the appellant, in proof of his guilt.

Dying-declaration is admitted in evidence on the principle of necessity, because the victim of the assault was admittedly the principal eye-witness of the crime and exclusion of the statement of the deceased would certainly defeat the ends of justice. Trua, an accused handicapped in testing the correctness of dying-declaration for want of cross-examination of its maker, but it cannot be said that dying declaration is weak evidence, simply because the accused cannot cross-examine its maker. Truth sits on the tongue of a dying man, and the sense of impending death produces in his mind the same feeling as that of a conscious and virtuous man under oath. Therefore, when there is no doubt that the deceased had good opportunity of knowing who the assailant or assailants were, and he could not have been mistaken about their identity, and there was no reason for him to falsely accuse them of the assault, a dying declaration can be regarded as good evidence. There can be no rule of law that a dying-declaration cannot form the sole basis of conviction until it is corroborated. The necessity of corroboration does not arise from any inherent weakness of dying-declaration as a piece of evidence, though in a given case the Court may, when it comes to the conclusion that a particular dying-declaration is not free from infirmities, demand its corroboration. So, the authenticity of dying-declaration has to be judged in accordance with the circumstances of each case depending upon many factors which would vary with each case. Once it is fraud that dying-declaration is true end voluntary, a conviction can be safely recorded on its basis even without corroboration.

The first dying-declaration was made by Harnam Singh to Mewa Singh, who had arrived at the scene of occurrence immediately after the incident. Mewa Singh, as indicated above, had died before the arrest of the appellant. He had given statement in the commitment proceedings, which were held against Dhan Singh in the year 1936, and clearly stated therein that Harnam Singh, who was lying wounded at the scene of incident, denounced the appellant and Dhan Singh as the assailants, who had caused injuries to him The copy of his statement is Exhibit PD, and the question respecting its admissibility would be dealt presently Harnam Singh was carried to Police Station, Bagha Purana where be made the report, which was recorded in First Information Report (Exhibit PM). His son, Thaman Singh (P.W. 5) had accompanied him. Thaman Singh has deposed unequivocally that Harnam Singh made the statement recorded in First Information Report (Exhibit PM) in his presence and he also thumb marked it after admitting its correctness. In the proceedings recorded by the Police under Exhibit PM it is clearly recorded that Thaman Singh had come to the Police Station along with Harnam Singh. So, his (Thaman Singh''s) presence at the time when Harnam Singh made the second dying-declaration recorded in Exhibit PM at the Police Station cannot be doubted. Surjit Singh (P.W. 7), who was posted as A.S.I. in Police Station, Bagha Purana, in the month of August. 1936, maintained that First Information Report (Exhibit PM) was in the hand of Inayat Ullah, who was then posted as Moharrir Head Constable in the said Police Station. He added that the said Inayat Ullah had migrated lo Pakistan during the partition of the country in the year 1947, and he had seen Inayat Ullah executing writings. So, he was acquainted with his handwriting As such, his competency to state that First Information Report (Exhibit PM) was in the hand of Inayat Ullah, cannot be disputed. It is, thus, obvious that Harnam Singh made the statement recorded in Exhibit PM. He related the incident, as summarised above, in Exhibit P.M., end stated there specifically that Saggu, who was son of the sister of Dhan Singh, had caused injuries to him with blows of dang, while Dhan Singh had dealt gandasa blows to him.

Exhibit P.L. is the third dying-declaration, which was made by Harnam Singh to Shri Paras Ram, Honorary Magistrate, at 6 40 P.M. on 2nd August, 1936, in Civil Dispensary, Bagha purana. Saran Mal (P.W. 6), who had learnt Hikmat from Shri Paras Ram and had worked with him for some time, maintained that he (Shri Paras Ram) died in or about the year 1949, and that he (Suran Mal) was acquainted with his writing and signatures, since be had been seeing him (Shri Paras Ram) writing and signing, and that Exhibit PL was in his (Shri Paras Ram''s) hand. Dr. Nand Lal (P.W. 4), who was posted as Medical Officer in Civil Dispensary, Bagha Purana, at the relevant time, and had examined the injuries of Harnam Singh, testified that he (Harnam Singh) made statement (Exhibit P.L.) to Shri Paras Ram, who recorded it in his presence, and that Harnam Singh remained in his full senses throughout the period he made that statement. Exhibit PK. is the Statement, which was made by Dr. Nand Lal to Shri Paras Ram, certifying that Harnam Singh was in fit state to make the statement, before dying-declaration (Exhibit PL) was recorded. Therefore, his presence at the time when dying-declaration (Exhibit PL) was recorded cannot be doubted. Dr. Nand Lal is an independent and respectable witness. Therefore, he proves unmistakably that dying-declaration (Exhibit PL) was made by Harnam Singh in his full senses to Shri Paras Ram. Surjit Singh (P.W. 7) too maintained that he was acquainted with the handwriting and signatures of Shri Paras Ram and Exhibit PL was in his hand and bore his signature. There is absolutely nothing on record to snow, that Harnam Singh boro any ill will against toe appellant or had any cause or reason to implicate him falsely. Since the appellant is the son of the sister of Dhan Singh, he must have been visiting him and, as such, Harnam Singh could have known him. The record bears no indication that the appellant could not be, or was not, known to him (Harnam Singh). The incident had taken place at about 5 P.M. So, it was day time and it cannot be maintained that the visibility was poor, so as to handicap Harnam Singh in recognising the appellant. There is no suggestion, much less any evidence, to show that any person had any occasion or opportunity to tutor Hernam Singh to name the appellant as one of the assailants. Therefore, having given our careful consideration to the entire evidence and circumstances of the case, we are satisfied that Harnam Singh made dying-declaration to Mewa Singh soon after the incident, and then made the second dying-declaration (Exhibit PM) within about 8 hours of the incident at Police Station, Bagha Purana, and the third dying-declaration (Exhibit PL) within about 25 hours after the incident to Shri Paras Ram, Honorary Magistrate, and that all these three dying-declarations had been made by him voluntarily and are true.

Faced with the situation that the evidence present on record was sufficient to prove the factum of making of the said declarations, and there is nothing to doubt she truthfulness or the voluntary nature of these dying-declarations, the learned counsel for the appellant contended that since neither the name of the appellant as Saudagar Singh or his parentage, nor the village Bukanwala, to which the belongs, had been mentioned in dying declaration (Exhibits PM) or dying-declaration (Exhibit PL), it could not be said that the appellant was the person, who was named as Saggu by Harnam Singh in the said two dying-declaration. We have been unable to accept the said contention. Thaman Singh is positive in his assertion that Saudagar Singh appellant is also known as Saggu, that he is the son of the sister of Dhan Singh, who was prosecuted for the murder of Harnam Singh in the year 1936, and that the appellant had absconded after the incident. The aforesaid statement of Thaman Singh was allowed to go unchallenged and no suggestion whatsoever was nude to him during cross examination that the appellant did not carry the nickname of Saggu, or that Dhan Singh had any other sister, who too had a son named Saggu. It is important to note that the appellant admits in his statement u/s 342 Criminal Procedure Code, that he is the son of the sister of Dhan Singh. There is sufficient evidence, which would be referred to presently, that the appellant had absconded during the trial of Dhan Singh. Therefore, when dying declarations (Exhibits PM and PL) are read in the light of the statement of Thaman Singh and the other evidence and circumstances of the case, there cam be no room for doubt that the appellant is the vary person who was named as Saggu and referred to as son of the sister of Dhan Singh in the said two dying-declarations. Mewa Singh, in his statement (Exhibit PD) stated that Harnam Singh told him that Saudagar Singh absconder and Dhan Singh had caused injuries to him it, thus, follows that the contention of the learned counsel that the identity of the person, who has been referred to as Saggu and son of the sister of Dhan Singh, as Saudagar Singh appellant is not proved, is misplaced and the same is overruled.

All these three dying declarations read consistent and contain specifically that the appellant was with his maternal uncle-Dhan Singh, and he (the appellant) caused injuries to Harnam Singh with dang, while Dhan Singh caused him injuries with gandasa. Therefore, the aforesaid dying-declarations, which, as held above, are true and voluntary, constitute good evidence and can sustain the conviction of the appellant even without corroboration.

Though, as indicated above, the throe dying-declarations, in the circumstances of the case, do not need any corroboration, yet sufficient corroboration of the same is available from the medical evidence and the abscondence of the appellant. Dr. Nand Lal (P.W. 4), who examined the injuries of Harnam Singh on 2nd August, 1936, and Dr. Tulsi Dass (P.W. 1), who conducted autopsy on the dead-body of Harnam Singh on 6th August, 1936, found four incised wounds, out of which two were on the head, three contused wounds and numerous contusions and abrasions on the dead-body. Dr. Tulsi Dass added that he found both the parietal bones completely cut under two of the incised wounds inflicted on the head, and that Harnam Singh had died due to extensive cuts and fracture of the skull bones, which had caused extra-dural haemorrhage suppressing the brain. The medical evidence, therefore, points out clearly that at least two types of weapons were used in causing injuries to Harnam Singh, and this gives rise to a reasonable inference that two persons had participated in inflicting injuries to Harnam Singh. The aforesaid dying-declarations are to the effect that the appellant and Dhan Singh had caused injuries to Harnam Singh. The ocular testimony available from the statements of Mohinder Singh and Dhian Singh, which were recorded in the commitment proceedings held against Dhan Singh, as well as dying declarations (Exhibits PM and PL) points out that Dhan Singh had wielded blows with gandasa, while the appellant had dealt blow with dang to Harnam Singh. Therefore, the medical evidence reads consistent with the aforesaid dying-declarations and the ocular testimony, which would be discussed hereunder, and leads necessary assurance to the prosecution case

Thaman Singh (P.W. 5) maintained that the appellant had absconded after the incident. A.S.I. Surjit Singh (P.W. 7), who partly investigated the case in the year 1936, stated that ha arrested Dhan Singh, but the appellant could not be found despite the beat efforts and search, and that he was ultimately declared a proclaimed offender. A.S.I. Avtar Singh too stated that the proceedings under sections 87 and 88, Criminal Procedure Code, had been instituted against the appellant in the year 1935. Copy of the commitment order (Exhibit PA), recorded by the Magistrate on 8th September, 1936, in the proceedings instituted against Dhan Singh too contains that the appellant had absconded. The appellant too admitted in his statement u/s 342, Criminal Procedure Code, that his uncle-Balwant Singh had taken him to Malaya after the day of incident. No evidence has, however, been brought on record that he had, in fact, been taken to Malaya by his uncle-Balwant Singh. It is, thus, obvious that the material referred to above, present on the record, is enough to prove that the appellant had absconded after the incident. Since the said abscondeoce extended to more than 33 years, the same cannot be said to be the result of any scare on the part of the appellant from the Police. On the other hand, it appears to be a deliberate abscondence with a view to evade the process of law. The said abscondence, therefore, reads consistent with the prosecution case and affords support to the dying-declarations and the ocular testimony.

Exhibit PC is a certified copy of the statement of Dhlan Singh, Exhibit PE is the certified copy of the statement of Mohinder Singh, and Exhibit PD is the certified copy of the statement of Mewa Singh, made by them u/s 512, Criminal Procedure Code, against the appellant during the commitment proceedings held against Dhan Singh in the year 1936. The statements made by these witnesses in the said commitment proceedings admittedly come within the scope of public document as defined in section 74, Evidence Act. Certified copies thereof could be granted u/s 76 and the said certified copies could be produced and used in proof of the contents of the same, vide section 77, Evidence Act. Presumption of genuineness would also be available in respect of the said certified copies of their depositions, u/s 80, Evidence Act. In view of the said provisions of law, it cannot fee gain said that the depositions made by the said three witnesses u/s 512, Criminal Procedure Code, against the appellant during the commitment proceedings held against Dhan Singh in the year 1936, can be proved by carried copies (Exhibits P.C., P.E. and P.D.)

The learned counsel for the appellant argued that since the order recorded by the learned Magistrate, holding commitment proceedings In the year 1936 against Dhan Singh, that the appellant had absconded and there was no immediate prospect of his being arrested and, there-fore, the evidence be recorded to be used against him (the appellant) under the circumstances stated in section 512, Criminal Procedure Code, was not produced, the aforesaid certified copies of the depositions could not be considered as evidence. The said argument has not prevailed with us we fee that it is sufficient if at the commencement of hearing in same proceedings, the Prosecutor brings to the notice of the Court the fact that the co-accused is absconding and he examines some witness or produces some evidence to prove that fact, and obtains a direction from the Court that the evidence be taken for purpose of being used, if necessary, against the absconder u/s 512, Criminal Procedure Code. The sufficiency of the evidence satisfying the Court taking proceedings u/s 512, Criminal Procedure Code, on that matter cannot, in our opinion, be agitated or questioned at the time of the trial of the absconding accused. In the instant case, it was unfortunate that the record of the commitment proceedings, prepared by the Magistrate while committing Dhan Singh for trial, had been destroyed under the orders of the competent authority. Therefore, the prosecution cannot be censured for not producing the order, which was recorded by the Magistrate in the said commitment proceedings, directing that the evidence be taken in absence of the appellant to be used under the circumstances mentioned in section 512, Criminal Procedure Code, after his arrest. However, certified copy (Exhibit PA) of the commitment order recorded by the Magistrate in the said commitment proceedings relating to Dhan Singh was available and was produced in the instant case. It is clearly recorded in paragraph 2 of the said commitment order that Saudagar Singh alias Saggu (now the appellant) had absconded and, therefore, proceedings against him were recorded u/s 512, Criminal Procedure Code. In view of the maxim omnia praesumuniut rite esse acta and illustration (e) to section 114 Evidence Act, the presumption is that all judicial and official acts had been rightly and properly performed. Therefore, it would be legitimate to assume, especially in view of the remark made la the aforesaid commitment order (Exhibit PA), that the teamed Magistrate had satisfied himself that the appellant had absconded and there was no immediate prospect of his being arrested, and he had, therefore, directed that evidence be recorded in his absence and that the same would be used under the circumstances mentioned in section 512, Criminal Procedure Code, The facts of the case reported as State of Madras v. Sanjeiva AIR 1956 Mys 1 , relied upon by the learned counsel for the appellant, were different. In that case, the prosecution had demanded adjournment to trace out the absconding accused, but the Magistrate proceeded to record the evidence against him, with the direction that the evidence so recorded would be used u/s 512, Criminal Procedure Code, if and when the absconding accused would be traced. Then, when the absconding accused was arrested and set up for commitment proceedings, the learned Magistrate did not summon the witnesses, although there was material to show that the witnesses were alive and were capable of giving evidence, and their attendance could be procured without any delay, expense or inconvenience, and he used the depositions recorded in the previous commitment proceedings by way or convenience and with a view to avoid the delay. It was under those circumstances that the order of commitment recorded by him (the Magistrate) on the depositions, which were recorded in the previous commitment proceedings, had been quashed. But, in the case in hand there is overwhelming evidence, and it is not disputed, that Dhian Singh, Mohinder Singh and Mewa Singh had died before the arrest of the appellant. Therefore, the aforesaid statements (Exhibits PC, PE and PD) are admissible in evidence and have the status of substantive evidence. It is pointless to urge that much weight should not be attached to the aforesaid statements, because the appellant did not have the opportunity to cross-examine the deponents viz., Dhian Singh, Mohinder Singh and Mewa Singh, because the appellant was himself responsible for creating the situation of recording the said statements u/s 512, Criminal Procedure Code, by absconding and thereby losing the chance to cross-examine them (Dhian Singh, Mohinder Singh end Mewa Singh). It may be noted that section 512, Criminal Procedure Code, has enacted an exception to the general rule that all evidence in criminal trial should be taken and recorded in presence of the accused.

Dhian Singh and Mohinder Singh supported the prosecution story in its entirety and stated categorically in their aforesaid statements (Exhibits PC and PE) that Saudagar Singh absconder and Dhan Singh had caused injuries with ding and gandasa, respectively, to Harnam Singh when he was standing and also when he had fallen on the ground. Dhian Singh further added that Saudagar Singh absconder was the son of the sister of Dhan Singh. As indicated in paragraph 5 above, the appellant was shown absconder in the case instituted against Dhan Singh, in which Dhian Singh and Mohinder Singh had made statements. It is in evidence, and it is admitted by the appellant, that he (the appellant) is the son of the sister of Dhan Singh. It is, thus, obvious that Saudagar Singh absconder, referred to in the statements of Dhian Singh and Mohinder Singh, is nobody else than the appellant in the instant case. So, his identity being one of the assailants, who inflicted injures to Harnam Singh, has been proved beyond any manner of doubt. Since Dhian Singh is co-villager and Mohinder Singh is grand-son of Harnam Singh, it sounds probable that they had accompanied him (Harnam Singh) when he had escorted the carts, laden with grain, mast probably belonging to him, and they returned with him. Mewa Singh, who had arrived at the scene of occurrence soon after the incident, found Dhian Singh there Thaman Singh (P.W. 5) confirmed the statements of Dhian Singh and Mohinder Singh, by stating that they (Dhian Singh and Mohinder Singh) had approached him immediately after the occurrence and informed him about the incident. The names of Dhian Singh and Mohinder Singh as eye-witnesses were mentioned by Harnam Singh in First Information Report (Exhibit PM) and his dying-declaration (Exhibit PL). Therefore, the presence of Dhian Singh and Mohinder Singh at the time and scene of occurrence and that they witnessed the incident, cannot be doubted. Their statements (Exhibits PC and PE) read consistent on the main particulars of the prosecution story, including the criminal act committed by the appellant along with Dhan Singh, and do not suffer from any defect, which could induce us to doubt the correctness of the same. So the ocular testimony available from the aforesaid statements (Exhibits PC and PE) is reliable and sound true. It finds support from medical evidence as well as from the abscondence of the accused. We are, therefore, satisfied that the same is sufficient to prove the guilt of the appellant. The said ocular testimony and dying declarations, referred to above, are mutually corroborative of each other. It is needless to say that apart from the ocular testimony, the dying declarations, as discussed above, are themselves sufficient to sustain the conviction of the appellant.

The appellant being the nephew of Dhan Singh could be prevailed upon by him (Dhan Singh) in assaulting Harnam Singh. He (Dhan Singh) could have motive to commit the crime, because, as stated by Thaman Singh (P.W. 5), Harnam Singh had been suspecting him (Dhan Singh) of removing his mare, and that Harnam Singh too had not rendered help to his (Dhan Singh''s) brother-Shihan Singh despite making a promise, in the murder case in which he (Shihan Singh) had vita prosecuted.

We have judged the evidence with great care and have given it searching scrutiny. We find that the evidence is in perfect harmony with the probabilities of the case. Dying-declarations and the oral testimony individually, as well as collectively, when read with the medical evidence and the abscondence of the appellant, prove it unmistakably that the appellant, along with his maternal uncle-Dhan Singh, attacked Harnam Singh jointly and caused injuries to him with dang and gandasa respectively. He (Harnam Singh) was not spared even after his fall and the appellant dealt numerous blows with dang to him when he was lying helpless on the ground. Head is vital part of human body and ding when used against it, and gandasa, are deadly weapons. Blows hid been given to Harnam Singh with dang and gandasa on his (Harnam Singh''s) head and other parts of the body Therefore, it is reasonable and legitimate to infer that the appellant had shared common intention with Dhan Singh to cause the murder of Harnam Singh, and in furtherance of that common intention, they caused Injuries to Harnam Singh, as a result of which he had died Therefore, the prosecution evidences conclusively proves the charge u/s 302 read with section 34, Indian Penal Code, against the appellant and he was rightly held guilty by the trial Court for that offence. He has already been awarded the lesser penalty. So, there is no merit in this appeal and it fails.

Consequently, we maintain the conviction and sentence of the appellant and dismiss this appeal.