Shinghal, J. - (1.) - The two appeals in this case are directed against the judgment of the learned Additional Sessions Judge, Jaipur dated April 29,1961, convicting appellants Kanhaiya Lal and Swami Saran of offences under secs. 302 and 302/109 I. P. C. respectively. While Kanhaiyalal has been sentenced to imprisonment for life, Swami Saran has been sentenced to rigorous imprisonment for 10 years. Kanhaiya Lal and Swami Saran have filed jail appeals. A notice was issued to Swami Saran by an order of this court dated July 25,1961 to show cause why his sentence should not be enhanced so as to make it in accordance with the law. A separate case has been registered in that connection as criminal revision No. 242 of 1961. The two appeals and the revision will, in these circumstances, be disposed of together by this judgment.
(2.) MOHANLAL P. W. 1 married his son Sohanlal with Smt. Beena Devi P. W. 2 daughter of Gopi Nath P. W. 16 on December 13,1958. Accused Kanhaiyalal is the son of MOHANLAL's elder brother and he used to reside separately with his mother in Mohalla Telipara, Jaipur City, and MOHANLAL also used to reside in the same locality. The allegations of the prosecution are like this : Before marrying Smt. Beena Devi with Sohanlal, her father Gopi Nath obtained the horoscope of the accused Kanhaiyalal also, but as his horoscope did not tally, the matter did not proceed any further and Beena Devi was married to Kanhaiya Lal's first cousin Sohanlal. Kanhaiyalal, however, nursed a grievance on that account as he suspected foul play on the part of MOHANLAL in getting the proposal of his marriage with Smt. Beena Devi rejected by Gopi Nath His grievance continued even after Smt. Beena Devi's marriage with Sohan Lal and he used to make indecent overtures to her. Apart from his passion for Smt. Beena Devi, Kanhaiyalal also had an eye on the property of his uncle MOHANLAL. Sohanlal was studying in those days in the Maheswari High School, Jaipur, in the 7th class. He used to live with his father MOHANLAL. On the morning of February 14,1959 (Suraj Saptami day) Sohan Lal went to his school as usual wearing a black coat, a blue pant, a 'kathai' sweter, a pink silken shirt, a banian, shoes and 'longs'. There were morning hours for the school. His friend Swami Saran accused also went with him to the school and they persuaded Sohanlal to accompany them. They went to the shop of Nathumal P. W. 5 where they took betels cigarettes and match box. Latter, Nazir Khan P. W. 36 saw them going towards the hillock of Bichoon the same day while Sawai Singh P. W. 26 saw them near a well in village Mokhampura at about 3 p. m. Matadeen P. W. 16 saw them in Mahalla village thereafter. The same afternoon, Kanhaiya Lal took his food at the house of Smt. Keshar P. W. 7 in that village along with accused Swami Saran and Shohanlal. He borrowed Rs. 2/- from his aunt Smt. Durga P. W. 6. The accused returned with Sohanlal to Jaipur the same evening and they were taken from "panch Batti" road crossing to Bagroowalon ka rasta where Swami Saran used to reside, by Heera Lal. P. W. 39, in his ricksha. Swami Saran called his land-lord Bhonri Lal P. W. 29 on reaching his house and the latter came and opened the door. He gave the explanation to Bhonri Lal that all three of them were coming from Ajmer and were late because of the late arrival of the train. They then went to Swami Saran's room. Phool Chand P. W. 40 who was another tenant of Bhonri Lal, also saw the two accused and Sohan Lal at that time. It is alleged that the two accused committed the murder of Sohanlal that night by strangulating his throat with handkerchief Ex. , J. and piece of stick Ex. 1 and that they wrapped the dead body thereafter in the cover of Swami Saran's quilt Ex. K and placed it in the 'tibara' of Mahadevji's temple nearby. In the morning, Swami Saran's room was found locked and he was not seen at his house thereafter untill the police arrested him on February 18,1959. The dead body of Sohan Lal was recovered on the next day at the instance of Kanhaiyalal from the 'tibara'. Swami Saran was also arrested the same day. Coming back to the developments which took place since Sohanlal's departure in the company of the accused it has been stated that the normal time for Sohan Lal to return from the school was by 12-30 p. m. When he did not return until the afternoon his father Mohan Lal went to the house of Babu Lal P. W. 4, who used to study in the same school with Sohan Lal, to make an enquiry. Babulal informed Mohan Lal that the accused Kanhaiya Lal had taken away Sohan Lal from the School. Mohan Lal went to Kanhaiya Lal's house to make further enquiries but he did not find him there although he went twice the same evening. Then from 10 p. m. to 1-30 a. m. Mohan Lal kept sitting at Kanhaiya Lal's house, but Kanhaiya Lal did not return till then. At about 5-30 a. m. , Mohan Lal's wife Smt. Manohar P. W. 3 informed him about the return of Kanhaiya Lal to his house and so Mohan Lal went there and was informed by Kanhaiya Lal that he did not know anything about Sohan Lal and had not seen him. Kanhaiya Lal was then taken by Mohan Lal and others to the house of Babu Lal and was confronted with Babu Lal's statement that he (Kanhaiya Lal) had taken away Sohan Lal from the school, but Kanhaiya Lal continued to deny that allegation. Thereafter all of them went to the house of Kishan Gopal P. W. 25, who was another class-fellow of Sohan Lal, and he also confirmed Babu Lal's version that Kanhaiya Lal had taken away Sohan Lal. In the meantime, Mohan Lal lodged report Ex. P. 1 in P. S. Manak Chowk. As the case related to P. S. Kotwali, it was transferred there and a case under sec. 363 and 365 I. P. C. was registered by the police. Mohan Lal however continued to make his personal efforts to trace out his son. He further interrogated Kanhaiya Lal and learned from him that he was at Maniawas with his uncle Dhanna on February 14, 1959. As Kanhaiya Lal refused to accompany Mohan Lal to Maniawas for the verification of his statement, Mohan Lal went there with some other persons and learnt that Kanhaiya Lal had not visited Maniawas on February 14, 1959. On return. , Mohan Lal told Kanhaiya Lal of what he learnt from his uncle Dhanna Lal, but Kanhaiya Lal persisted in saying that he had been to Maniawas and offered to have the statement personally verified on the next day. However, when Mohanlal went to his house the next morning, he learnt from Kanhaiyalal's mother that Kanhaiyalal had gone to Mahalla and not to Maniawas. Mohanlal again went to Maniawas with Kanhaiyalal and learnt from Kanhaiyalal's uncle Dhanna Lal that Kanhaiyalal had visited him in the meantime and had requested him to say that he (Kanhaiyalal) was at Maniawas, but that he had turned down the request. Thereafter Mohanlal went to Mahalla with Kanhaiyalal where the latter's cousin (aunt's son) Mohanlal P. W. 8 used to reside and he learnt that Kanhaiyalal had tried to persuade this Mohanlal also to say that he alone had visited his house on February 14, 1959 but that he had refused the request. Mohanlal learnt there that his son Sohanlal had visited the house of Mohanlal P. W. 8 on February 14, 1959 in the company of the accused and all three of them had taken their food there at the house of Mohanlal P. W. 8. The police arrested Kanhaiyalal on February 18, 1959 and Swami Saran was also arrested the same day, in the night. Kanhaiyalal gave information Ex. P. 18 to the police on February 19, 1959 that he and Swami Saran accused had placed the dead body of Sohanlal in a 'tibara' of the Bagichi of Mahadevji near the southwestern wall, after covering it up in the white cover of Swami Saran's quilt, and had placed the blue pant, pink shirt, black woollen coat and the shoes of the deceased there, which he could recover. The police accordingly was led to the 'tibara' in question by Kanhiyalal which was at a distance of 50 paces from the house of Swami Saran accused, and the dead body, as well as the other articles, were recovered at his instance the same day from the same place, vide memo Ex. P. 6, in the presence of Vinendra Prasad P. W. 13. Thereafter Kanhaiyalal accused gave information Ex. P. 17 to the Police on February, 24, 1959 that he had placed a pair of gold 'jongs', studded with white stones, under a mattress, on a shelf of the room above the main entrance of his house, which also he could recover. The police accordingly recovered the 'longs' vide memo Ex. P. 5 from the same place at the instance of Kanhaiyalal, in the presence of Hanuman Bux P. W. 32. Finally, Kanhiyalal accused gave information (Ex. P. 8) to the police on March 5, 1959 that the handkerchief and the piece of wood had been hidden by him under a stone slab in a dirty lane behind the house of Bhonrilal, and that he could get them recovered. Accordingly the police was taken to that place by the accused the same day and handket chief Ex. J and stick Ex. P. were recovered in the presence of Ram Ballabh P. W. 19 vide memo Ex. 9. It is also alleged that accused Swami Saran gave information Ex. P. 19 to the police on February 19, 1959 that the cotton of his quilt and the sweater had been locked by him in his room and that he could get them recovered. He led the police to his room for the recovery the same day and sweater Ex. B and the cotton of the quilt were recovered vide memo Ex. P. 2 in the presence of Bhopa P. W. 17 and Shyam Sunder P. W. 10. It may be mentioned that accused Swami Saran was sent to the judicial lock up on March 6, 1959. He was produced before Shri Shambhu Singh P. W. 39, Municipal Magistrate, Jaipur City, on March 21, 1959, for recording his confessions. That confession (Ex. P. 13) was recorded by the learned Magistrate the same day. Swami Saran narrated the entire incident in detail in that statement. According to it, accused Kanhaiyalal persuaded Sohanlal to accompany him to Bichoon by assuring him that he had obtained his mother's permission to take him there. They took a bus going towards Kishangarh and got down at Mokhampura. Bichoon was at a distance of about 4 'kos' from there. Kanhaiyalal took them to a hillock outside Bichoon village, informing them that Bichoon was on the other side of it and saying that they would go to his uncle's house after easing themselves there. While they were resting on the hillock, Kanhaiyalal pressed the throat of Sohanlal as a result of which Sohanlal fell down. At that time Swami Saran was at some distance from them and he found that Sohanlal's throat had become red on account of the injury and there were marks of nails on it. Sohanlal then began to run down the hillock and Kanhaiyalal followed him. He persuaded Sohan Lal to believe that he only wanted to test him and had cut a joke with him. They went to a tank where they took water and then started back for Jaipur. They took a bus for Mahalla village and after taking their food there they all started for Jaipur on foot. Kanhaiyalal borrowed Rs. 2/- from an old woman in Mahalla before leaving for Jaipur. Kanhaiyalal sat on a well after covering a distance of a mile or so and he called the other two to that place, but they stayed away at a distance of 50 or 60 paces. Sohanlal and Swami Saran then started further and Kanhaiyalal joined them. They reached Bagroo at about 8-30 p. m. and from there they came by bus to Makhrota. They started their journey on foot thereafter. Kanhaiyalal again sat near a well and although Sohanlal and Swami Saran tried to persuade him to go farther, he said that his mind was not in order and that he would commit suicide by falling in the well. Sohanlal and Swami Saran then started from that place and Kanhaiyalal joined them soon after. They reached Amani-Shah-Ka-Nullah and found a truck passing by. They stopped it and reached Jaipur in it sometime between 10 and 11 p. m. The truck driver left them at "panch Batti". Kanhaiyalal suggested that they should all go to Swami Saran's house for rest and they went in a rickshaw to Bagroowalon ka-Rasta where Swami Saran used to live in Bhonrilal's house. They reached the house at about 11-30 p. m. and Swami Saran asked Bhonrilal to open the door. They were admitted to the house by Bhonri Lal and all three slept in Swami Saran's room after arranging the beddings. Kanhaiyalal had tied a handkerchief to conceal the injury on the throat of Sohanlal before going to Mahalla and that handkerchief remained there all through. Kanhaiyalal woke up later in the night and asked for water. Sohanlal also woke up and complained of pain in his throat. Kanhaiyalal then began to rub the hair oil of Swami Saran on the neck of Sohanlal and also gave him a white powder to stop the pain. He continued to rub the oil on the throat of Sohanlal and tied the handkerchief after 5 or 7 minutes, round his neck. A little later, Swami Saran woke up on hearing the gurgling sound from the throat of Sohanlal and sound that Sohanlal was in the lap of Kanhaiyalal at that time, the handkerchief was round the neck and a piece of wood was twisted round it. Kanhaiyalal twisted the throat of Sohanlal as a result of which the handkerchief got torn. Swami Saran asked Kanhaiyalal what he had done and Kanhaiyalal told him that Sohanlal had died and that if he (Swami Saran) told anybody about the incident, he would get him murdered by paying Rs. 15/- or 20/- to some one. Then Swami Saran removed the cover of his quilt as desired by Kanhaiyalal. They took off the clothes from the dead body of Sohanlal and placed it in that cover after Kanhaiyalal had removed the gold 'longs' from Sohanlal's ears and had pocketed them. Kanhaiyalal asked Swami Saran to go ahead and see if the way was clear. As there was no one around, both the accused took the dead body, along with the clothes and other articles of the deceased, and deposited them in a dilapidated 'tibara' in the temple of Shivji which was nearby. They then returned to Swami Saran's house where Kanhaiyalal said that "the wall" had been removed from his way, and asked Swami Saran not to tell any one about the incident. They did not sleep thereafter and Swami Saran went away with Kanhaiya Lal a little before dawn, after locking his room. They went to Kanhaiyalal's house. Kanhaiyalal stayed away at some distance and sent Swami Saran to call his brother Jagdish who came out. Both Kanhaiyalal and Jagdish then went inside their house and Kanhaiyalal asked Swami Saran to meet him at 12 in the noon but he did not turn up. Two days later, the accused were arrested as mentioned earlier. This is the gist of the confession which is said to have been recorded by Swami Saran. After completing the investigation, the accused were challaned to the court of Magistrate First Class No. 2, Jaipur City, who committed them to the court of Session and the learned Additional Sessions Judge convicted and sentenced them as aforesaid. The prosecution examined 42 witnesses. Broadly speaking, the evidence relates to (i) the {alleged motive for the murder, (ii) the taking away of Sohanlal by the accused from the school on February 14, 1959, (iii) the presence of the deceased in their company when he was last seen by the witnesses, (iv) the confessional statement of Swami Saran, (v) Kanhaiyalal's false statement about his movements on Feb. 14, 1959 and his attempts to persuade his relations to support him in that connection and (vi) the recoveries made at the instance of the accused. We shall have occasion to refer to the evidence while considering it in details. It would be sufficient to refer here to the statement of Dr. B. P. Bhatnagar P. W. 23 who examined the dead body of Sohanlal on February 19, 1959 and whose report in that connection is Ex. P. 11. According to the witness, the body was in an advanced stage of decomposition, the skin had peeled off, blisters were present at various places, the eye balls were protruding out of the sockets and the mouth was open. Maggots were creeping on the back of the body and rigor mortis had passed off. No mark of external injury could be seen due to decomposition. There was fracture and dislocation of the first cervical and the cause of death was "sudden compression of the spinal cord due to the fracture and dislocation of the first and second cervical vertebrae". The death had occurred in about 4 or 5 days and the witness further expressed the view that "strangulation" resulting in dislocation could cause death in this case and also that the injuries were sufficient in the ordinary course of nature to cause the death. Both the accused completely denied the allegations of the prosecution. Kanhaiyalal stated that he returned from the second show of the cinema on February 14, 1959, and that he told Mohanlal at 5 a. m. when he came to his house that he had no knowledge about Sohanlal except that he had seen him at 7 a. m. He admitted that he told Mohanlal that he was at Maniawas on February 14, 1959, but he denied that he had refused to get it verified. He also stated that he had gone to Maniawas but he denied that he had gone to Mahalla. He denied having made indecent overtures to Smt. Beenadevi. He also denied that he borrowed any money from Smt. Durga at Mahalla or took food at the house of Smt. Keshar there. He further stated that he did not give any information about the dead body and that the police recovered it itself by simply taking him to the temple. The accused denied the allegations about his trying to set up a false plea of alibi. He also denied that any article was recovered at his instance by the police. He stated that he had strained relations with Mohanlal P. W. 8 and that he did not know why the other witnesses had deposed against him. Accused Swami Saran denied all the allegations of the prosecution and retracted from his confession Ex. P. 14 alleging that it was given under police pressure. He also denied that any recovery was made at his instance, but he could not give any reason why the prosecution witnesses had deposed against him. He pleaded that he was presented before the Magistrate at 11 a. m. for recording his confession but the matter was put off for 2 or 3 days and he was kept injudicial lock-up and that S. I. Sawai Singh took him to City Kotwali from the judicial lock up, beat him, and asked him to give a statement according to his wishes threatening that he would be buried alive if he did not do so. The accused also stated that Sawai Singh thrust a stick in his anus and that it was in these circumstances that hi confessional statement was recorded by Magistrate. The accused examined Dr. Suraj Babu D. W. 1 and Lekh Raj D. W. 2 as witnesses to show that the alleged confession of Swami Saran was not voluntary. It is not in dispute before us that Sohanlal died of violence and his dead body, along with his pant Ex. E, coat Ex. F, shoes Ex. G and shirt Ex. H, was found in the ''tibara' of the temple, at a distance of about 50 paces from Swami Saran' house. The statement of Dr. B. P. Bhatnagar P. W. 23 clearly proves that he performed a post mortem examination on the dead body of Sohanlal on February 19, 1959 and found that there was fracture and dislocation of the first cervical and that the cause of Sohanlal's death was sudden compression of the spinal cord due to fracture and dislocation of the first and the second cervical vertebrae. The witness has also clearly stated that the death could be caused with the help of stick Ex. I and handkerchief Ex. , J. by strangulation, and that the injuries were sufficient to cause the death in the ordinary course of nature. Dr. Bhatnagar has also stated that the death had taken place about 4 or 5 days earlier. The dead body was shown by the police to Mohanlal P. W. 1, who was the father of the deceased Sohanlal, and there can be no doubt about its identity. It has therefore been clearly established that Sohanlal died of strangulation 4 or 5 days before February 19,1959. The next and the main point for decision is how Sohanlal was killed,and by whom. The learned counsel appearing for the appellants have addressed their arguments separately for the two accused in this respect and they have taken us through the entire evidence. There is no direct evidence of the murder except for the confessional statement of Swami Saran, and the case of the prosecution depends on circumstantial evidence. A part of that evidence, i. e. , the evidence relating to the motive for the murder and the denial of certain well established facts by Kanhaiyalal accused, as well as his efforts to create a false plea of alibi, has no direct concern with the case of Swami Saran accused. We therefore think it would be desirable to deal with the two cases separately.
(3.) WE shall first take up the case of accused Kanhaiyalal. It may be mentioned at the outset that learned Dy. Government Advocate has frankly stated that he does not rely on the confessional statement (Ex. P. 14) of accused Swami Saran to prove the guilt of Kanhaiyalal. The evidence against him, therefore, is that relating to the motive for the murder, the taking away of Sohanlal from the school on February 14, 1959, the presence of Sohanlal in the company of the accused thereafter, their having been last seen together until the midnight of that day in the house of Swami Saran accused, the denial by Kanhaiyalal of certain well established facts, his efforts to set up a false plea of alibi and the recovery of the dead body and the other articles at his instance. The prosecution has examined Mohanlal P. W. 1, Smt. Beena Devi P. W. 2, Smt. Manohar P. W. 3, Gopinath P. W. 15, Basu Deo P. W. 22 and Satya Narain P. W. 33 to prove that accused Kanhaiyalal nursed a grievance because the proposal for his marriage with Smt. Beena Devi was turned down and she was married to the deceased Sohanlal instead, and also to show that even after her marriage Kanhaiyalal had a passion for Beena Devi. Mohanlal P. W. 1 has stated that Kanhaiyalal had "a bad eye" on Sohanlal's wife Smt. Beena Devi and that he wanted to make her his wife. The witness has further stated that Kanhaiyalal once called Smt. Beena Devi and Sohanlal for a photograph and that he saw Kanhaiyalal's watch on Smt. Beena Devi's wrist on February 13, 1959 and so he became suspicious about Kanhaiyalal's intentions towards her. The witness has stated that Kanhaiyalal was his elder brother's son and that he wanted to kill Sohanlal to become the owner of his property. Mohan Lal's wife Smt. Manohar P. W. 3 has stated that there was talk about Kanhaiyalal's marriage with Smt. Beena Devi and that she was married to Sohanlal as Kanhaiya Lal's horoscope did not tally with her horoscope. The witness has also stated about Kanhaiyalal's showing currency notes to Smt. Beena Devi in her presence. Further, Gopinath P. W. 15, father of Smt. Beena Devi, has stated that among the horoscopes which were compared for Beena Devi's marriage, was the horoscope of Kanhaiyalal accused, but it did not tally. Basu Deo P. W. 22 has been examined to prove that Gopinath took the horoscope of his daughter and of one other boy to him for examination but they did not tally. The witness could not, however, state the name of the boy whose horoscope was brought by Gopinath to him ; his statement is therefore not of any importance. Smt. Beena Devi P. W. 2 has stated that the accused Kanhaiyalal had a bad eye on her, that he used to come to her father-in-law's house and display currency notes looking at her, and that Kanhaiyalal used to "fall on a boy" and look towards her from the shop of Mangal Sindhi which was in front of that house. She has also stated that Kanhaiyalal had given a watch to Sohanlal and that she had put it on while going to a dinner, but when she came to know that it belonged to Kanhaiyalal, she took it off and gave it to Sohanlal. Further, she has stated that 3 days before Suraj Saptami, Kanhaiyalal asked her husband to bring her to him for 2 hours for taking photographs but she did not go. Satya Narain P. W. 33 has stated that (about 16 or 17 months before the date of his examination in the court of Session) Kanhaiyalal told him that his uncle had, by unfair means, got Smt. Beena Devi engaged to hid own son and did not allow him (Kanhaiyalal) to marry her, and that he would "see his uncle" for that reason. There is nothing in the cross-examination of these witnesses to shake their testimony except that we are not persuaded to hold that there is satisfactory evidence to prove that Kanhaiyalal wanted to murder Sohanlal for the additional reason that he wanted to inherit Mohanlal's property. No such allegation was made in the first information report and Mohanlal's statement in this connection appears to be an after-thought. Otherwise, the learned trial Judge was justified in holding that the prosecution has succeeded in proving that Kanhaiya Lal nursed a grievance against Mohanlal P. W. 1 because he himself was not married to Smt. Beena Devi, and that Kanhaiyalal had a passion for her although she had been married to Sohanlal almost 2 months before the present incident. The motive for the murder has therefore been established so far as Kanhaiyalal is concerned. There is also satisfactory evidence to prove that accused Kanhaiyalal went to Maheshwari High School on the morning of February 14, 1959, where Sohanlal was studying in the 7th class, and that he persuaded Sohanlal to leave the school and go with him. Babulal P. W. 4 also studied in the same school with Sohanlal and he has stated that this was so and that Sohanlal was not seen by him thereafter. It seems that in portion A to B of his statement Ex. D. 5 in the court of the committing magistrate, Babulal stated that he did not know the name and did not recognise the person who took away Sohanlal from the school and he was allowed to be cross-examined by the prosecution because he resiled from his police statement on that point. However the witness, it seems, once again made a statement in conformity with his police statement when he was examined in the court of Session. Although learned counsel for the appellant has argued that we should altogether reject the testimony of Babulal on account of the discrepancy in his statement in the two courts below, we do not think we would be justified in doing so when the other evidence on the record also goes to show that Babulal definitely knew from the outset that. Sohan Lal had been taken away from the school by Kanhaiyalal. Mohanlal P. W. 1 has stated that it was Babulal who gave him the information that Sohanlal had been taken away from the school by Kanhaiyalal and he made a mention of that fact in his first report to the police, Ex. P. 1, on February 14, 1959. The statement of Sohanlal's mother Smt. Manohar P. W. 3 also shows that it was Babulal who informed her that Sohanlal had gone away from the school with Kanhaiyalal. We have therefore no doubt that the statement of Babulal P. W. 4 recorded in the court of Session is correct in this respect. Dhanpatrai P. W. 12 was the Headmaster of the Maheshwari High School at that time and he has also stated that Sohanlal was a student of the 7th class in that school, that he was present in the school on the morning of February 14, 1959 and that he left the school at about 9 a. m. before the second meeting and remained absent thereafter. The witness has further stated that Sohanlal went away without permission, leaving his books in the class room. Although the prosecution examined Kishan Gopal P. W. 25 also to prove that the accused Kanhaiyalal took away Sohan Lal from the school, the witness simply stated in the trial court that he saw Sohan Lal and Babulal talking with another boy but that he did not see Sohanlal going away with Kanhaiyalal, the witness further stated that he did not know Kanhaiyalal. He was allowed to be cross-examined by the prosecution as it appeared that he had been won over by the defence. However, even if Kishan Gopal's testimony is left out of account, there can be little doubt, on the other evidence on record, that the accused Kanhaiyalal took away Sohanlal from the school on the morning of February, 14, 1959 and that his denial of that fact is false. This conclusion is strengthened by the further evidence led by the prosecution to show that Sohanlal was seen in the company of the accused at several places thereafter on February 14, 1959. Nathumal P. W. 5 has stated that. 3 or 4 days before he came to know about the murder of Sohanlal and 2 days after Basant Panchami, Sohanlal came to his shop at about 10 a. m. along with accused Kanhaiya Lal and one other person, that they took betels, cigarettes and match-box and went away thereafter. The witness has further stated that Sohan Lal was wearing a black coat and blue pant at that time. Nazir Khan P. W. 36 is a resident of Bichoon and he has stated that he saw the two accused and Sohan Lal going towards the hillock of Bichoon and that he knew Kanhaiya Lal and Sohan Lal because they also belonged to that village. It is argued by Mr. Garg that the testimony of this witness is not reliable as he could not disclose the names of the other relations of Kanhaiya Lal living in the village. This is not a sufficient reason for discarding the testimony of the witness because it appears from the statement of Mohan Lal P. W. 1 that he originally belonged to Bichoon and Nazir Khan could well have recognised Kanhaiya Lal and Sohan Lal for that reason. The next witness who claims to have seen Sohan Lal in the company of the accused on Suraj Saptmi day is Sawai Singh P. W. 26. He has stated that he saw all three of them at a well in village Mokampura at about 3 p. m. and that they had come from Bichoon side. He has further stated that they went away from there towards the main road and that Sohan Lal was wearing black coat Ex. F at that time. Mata-deen P. W. 16 has stated that he was posted as a teacher in village Mahalla from November 13,1958 to May 16, 1959 and that he saw three new faces and was informed by Sita Ram that one of them was his aunts son, the other was Kanhaiyalal while the name of the third person was not known to him (Sita Ram ). Some arguments have been addressed before us to assail the testimony of Nazir Khan P. W. 36, Sawai Singh P. W. 26 and Matadeen P. W. 16 and although those arguments are not of much substance, we do not think it necessary to take the statement of these three witnesses into account against the accused because there is other clear evidence to prove that the deceased Sohan Lal was seen in the company of the two accused on February 14, 1959, up to mid-night. We may refer in this connection to the statement of Smt. Keshar P. W. 7 that accused Kanhaiya Lal, who was the son of her aunt-in-law, came to her house at village Mahalla on Suraj Saptmi, at about 3 or 4 p. m. , and that he asked her for food which she prepared and which was eaten by Kanhaiya Lal, his uncle's son and his friend. The witness identified accused Swami Saran to be the friend of Kanhaiya Lal who had taken his food at her house that day, and she also offered to give a description of Kanhaiya Lal's cousin. The husband of Smt. Keshar was not present at the time as he had gone to another village. We find no reason to disbelieve the witness. She is relation of Kanhaiya Lal and there is no reason why she should implicate him falsely in such a serious case. Smt. Durga P. W. 6 is another relation of accused Kanhaiya Lal and she also stated that Kanhaiya Lal visited her at Mahalla on Suraj Saptmi day and borrowed Rs. 2/- from her for his fare. We have no doubt that the deceased and the two accused visited Mahalla on February 14, 1959, in the afternoon, and were thus at a distance of about 22 miles from Jaipur at that time. It was only natural that they should have taken some time to cover that distance on their return to Jaipur. The prosecution has examined Heera Lal P. W. 35 to prove that the accused and the deceased hired his ricksha the same day at about 10 p. m. after getting down from a truck at the "panch-batti" crossing and that he left them in a lane in Bagroo-walon-ka-rasta. The witness being a man of discreditable antecedents having been a history-sheeter, we are not inclined to place reliance on his testimony, but there are the statements of Bhonrilal P. W. 29 and Phool Chand P. W. 40 to prove that the accused and the deceased arrived at Bhonri Lal's house at about 11 P. M. on Suraj Saptmi, where accused Swami Saran had taken a room on rent about a week before the incident. Bhonri Lal was the landlord of the house while Phool Chand was a co-tenant and there is no reason to disbelieve their testimony that the accused Swami Saran called Bhonri Lal to open the door of the house when he came there that night along with Kanhaiyalal and Sohanlal. Bhonrilal has further stated that Sohanlal was wearing coat Ex. F and pant Ex. E at that time and all three of them went inside Swami Saran's room in the house. He did not see Swami Saran thereafter as he found his room locked in the morning and saw him only after the recovery of the dead body. Phool Chand saw the dead body when it was recovered by the Police and has stated that it was of the same boy who had come with the two accused that night. It has therefore been clearly proved that the deceased was last seen in the company of the two accused until about the mid-night, within a few hours of his murder. The portion of the statement of Smt. Manohar P. W. 3 that she saw the accused Kanhaiya Lal in the lane when he was coming from the side of Chaura Rasta at about 5 a. m. the same night, is a fur-ther link in the chain of the evidence. She asked him where Sohan Lal was, but he denied all knowledge about him. The witness then took her husband Mohan Lal to Khanhaiya Lal's house to find out the whereabouts of Sohan Lal and we have already referred to the efforts of Sohan Lal's parents to trace him out by confronting Kanhaiya Lal with the information supplied by Babu Lal. All this evidence leaves us in no doubt that the deceased was last seen in the company of the accused shortly before his murder and since the accused have contended themselves with a bare denial that this was so, this circumstance strongly incriminates them. ;