G.K.SHARMA, J. - (1.) THIS appeal has been preferred by the appellants against the judgment dated 7 -8 -1984 passed by Addl. Sessions Judge, No. 1, Ajmer where by both the appellants have been found guilty 'of the offence under Section 302 and 302/34 IPC. They have been sentenced to life imprisonment and a fine of Rs. 2,000/ -, in default of payment of fine, to undergo 4 months' imprisonment. Both the apellants were also found guilty under Section 380 IPC and each has been sentenced to 5 years' rigorous imprisonment and a fine of Rs. 1,000/ -, in default of payment of fine, to further 4 months' S.I. All the sentences were ordered to run concurrently.
(2.) WE would like to mention here that the learned Additional Sessions Judge could not distinguish between the offence under Section 302 and 302 read with 34 IPC. It is very unfortunate that the learned Sessions Judge found the appellants guilty of the offence under Section 302 and under Section 302 read with 34 IPC. If there is no direct evidence and both the appellants had common intention, in that case they can be found guilty of the offence under Section 302 read with 34 IPC. In the present case the learned Addl. Sessions Judge found both the appllants guilty of the offence under Section 302 simplicitor and also under Section 302 read with 34 IPC This is very sad affair that the Addl - Session Judge could not understand the difference between these two offences. He could not make up his mind whether the appellants had committed offence under Section 302 simplicitor or whether they have committed offence under Section 302 read with 34, IPC. Shrimati Maina daughter of Gyarsi lodged a written report Ex. P 5 at P.S., Kishangarh on 30 -12 -1983. In this report it has been alleged that on 29 -12 -1983 at 5 p.m. when she was at village Diggi she was informed that some body had murdered her mother and after murdering her had taken away the goods. On hearing this she came to Kishangarh and on enquiry from the Mohalla people she was informed that they had cremated her mother. She reached the house and found that after murdering her mother, the ornaments like gold and silver were taken away from the house. She has given a details of the ornaments alleged to have been taken. This report was submitted by Mst. Maina on 30 -12 -1983 at 4 p.m. On this report a case under Section 302/ 201 IPC and 380 IPC was registered. A regular FIR was prepared and investigation started. The SHO inspected the site and prepared the site -map. He recovered blood stained clothes of deceased. He arrested the accused Kailash on 12 -1 -1984 vide memo Ex. P 4. Kailash gave information under Section 27, Evidence Act for the recovery of certain articles. On the information and at the instance of accused Kailash, the SHO recovered certain articles. On the information of accused Kailash, the SHO arrested the accused Alladin. Alladin also gave information for the recovery of certain articles and on his information and at his instance certain articles were recovered form the field of Kailash. After completing usual investigation the Police submitted challan in this case.
(3.) THE Sessions Judge, Ajmer framed charge against both the accused -persons under Section 302 IPC or in the alternative under Section 302 read with 34 IPC He also framed charge under Section 380 and 380/34 IPC or in the alternative under Section 411 IPC. The accused persons did not plead guilty and claimed trial.;