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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: SHER SINGH & ORS.

DATE OF JUDGMENT24/02/1981

BENCH: ISLAM, BAHARUL (J) BENCH: ISLAM, BAHARUL (J) REDDY, O. CHINNAPPA (J)

CITATION:  1981 AIR 1021            1981 SCR  (3)   1  1981 SCC  (2) 300        1981 SCALE  (1)761

ACT:      Code of  Criminal Procedure  1973, S. 154, Indian Penal Code 1860, S. 302 and Indian Evidence Act 1872, S. 103-Trial for murder-Accused  convicted for  murder by Sessions Court- Acquittal  by  High  Court-Interference  by  Supreme  Court- Whether  F.I.R.   to  contain  details  of  the  occurrence- Prosecution whether bound to prove motive-Burden of proof of alibi whether on the accused.

HEADNOTE:      The two  deceased were the two younger half brothers of the first  respondent. A day before the day of the murder of the two  deceased,  the  brothers  had  divided  the  family properties and  started living  separately. P.W. 3, the wife of one  of the  deceased, in the F.I.R. given to the police, stated that  on the  day of  the  occurrence  when  the  two deceased and she went to the bagichi for milking the cattle, the  first  respondent  and  his  sons  surrounded  the  two deceased in  the court-yard,  the first  respondent dealt  a blow on  the head  of her  husband with  a gandasi while the others gave  lathi blow on the second deceased. Both of them succumbed to  the injuries. It was also stated in the F.I.R. that P.W. 4, the sister of the deceased, was with her at the time of  the occurrence  and that  when they  screamed,  the assailants asked  them to  keep quiet  on pain  of death  to them. The assailants, it was alleged, thereafter dragged the two dead  bodies and  burnt them  in the nearby heap of cow- dung cakes  after pouring  kerosene on the heap. The defence of the two accused was alibi.      All the  accused, who  were charged  of offences  under section 302  read with  section 34  of the  Penal Code  were sentenced; the  first respondent  to death and the others to imprisonment for life.      On appeal,  the High Court set aside the conviction and sentences and acquitted all of them.      Allowing the State’s appeal, ^      HELD :  1. When  an accused pleads alibi, the burden of proof under  section 103  of the  Evidence  Act  is  on  the accused.  The  plea  of  all  the  accused  that  they  were elsewhere at the time of the offence is not true. [4-G, 5-C]      2.  The   guilt  of   the  two   respondents  had  been

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established beyond  all reasonable  doubt.  The  High  Court rejected the  evidence of  P.W. 10 on the ground that he had not stated  in the  statement before  the police that in the partition of the family properties among the brothers, there was a hitch. The prosecution is not bound to prove motive of any offence  in a criminal case, for motive is known only to the perpetrators  of the  crime and  may  not  be  known  to others. If  the motive  is proved  by the  prosecution,  the Court has  to consider  it and  see whether  it is adequate. [11E, 6 B-C] 2      In the  instant case  the motive  proved is  apparently inadequate, although it might be possible. [6 C]      3. The  High Court  had taken a wrong view in rejecting the evidence  of P.Ws.  3 and 4 on the ground that they were close  relations   of  the  deceased;  that  it  was  highly improbable that P.W. 3 who was in advance stage of pregnancy would go to the place of occurrence. [8F; 9F-G]      4. Although both the witnesses P.Ws. 3 and 4 were close relations of  the deceased,  their  evidence  could  not  be rejected solely  on that  ground. They  were also related to the respondents  and there is nothing on record to show that they were  inimically disposed  towards the  respondents  to falsely implicate  them in  the murder.  Secondly, it  was a pure conjecture  of the High Court when it said that panchas and sarpanchas and other respectables of the village took an opportunity to  implicate the  respondents. It  was  also  a conjecture on  the part  of the  High Court  to say that the deceased were  murdered by  unknown culprits  and  that  the respondents  were   falsely  implicated   by   the   village respectables. The  High Court  found  as  a  fact  that  the respondents and  the deceased  slept in  the bagichi  during nights to  keep watch  over the  cattle. Had the murder been perpetrated by  unknown persons,  the respondents would have intervened and informed the neighbours. [8F-9B]      5. The  fact that  P.W. 3 did not mention in the F.I.R. that she had informed some persons of the village before the lodging of the F.I.R. and that for this reason her statement could not  be relied  on is not correct. The F.I.R. need not contain all  details of the occurrence nor does the omission to mention  the name  of persons  whom she  informed in  the village detract  from the  credibility of  the  report.  The omission  is   a  mere   omission  of   details  and  not  a contradiction. [9 C]      6. The  High Court  was not  right in  disbelieving the evidence of  P.W. 4  on the ground that had she been present at the  scene of  occurrence, she would have out of love for her real  brothers, intervened and tried to save them. There is nothing  unnatural if  she had  out of  a sense  of  self preservation at  the threat  of the assailant refrained from attempting to  save the two deceased from the murder. P.W. 3 must have been dazed at the brutal murder of her husband and brother-in-law.  In  such  a  situation  she  could  not  be expected to  mention all  the details,  in  the  F.I.R.  and therefore, the  High Court  was not  right in  rejecting the evidence of  P.W. 10 solely on the ground that no mention of the extra-judicial  confession of  Respondent No. 1 had been made in the F.I.R. [9H-10B; 10D-E]      7. In view of the fact that the conviction and sentence were passed  by the Session Judge in July, 1974 and the High Court passed  the order  of acquittal  in 1975,  the extreme penalty of death given to the first respondent is not called for now;  ends of justice will be met if all the respondents are sentenced to imprisonment for life. [11 G]

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 320/75.      Appeal by  special leave  from the  Judgment and  Order dated 2.4.1975  of the  Punjab and  Haryana  High  Court  in Criminal Appeal No. 1044/74 and Murder Reference No. 50/74. 3      K.G. Bhagat and R.N. Poddar for the Appellant.      Mrs. Urmila Sirur for the Respondents.      The Judgment of the Court was delivered by      BAHARUL ISLAM,  J. This  appeal by special leave by the State of  Haryana is directed against the judgment and order of the  Punjab and  Haryana High  Court  setting  aside  the conviction and  and sentence  passed by  the Session  Judge, Karnal. Respondents  Balkar Singh  and Dalel  Singh are  the sons of  respondent Sher  Singh. The Session Judge convicted all the  three under  Section 302/34  of the Penal Code, and sentenced  Sher   Singh  to  death  and  the  other  two  to imprisonment for  life. On a reference by the Sessions Judge for the  confirmation of  the sentence of death inflicted on Sher Singh  and appeal  filed by  the respondents  the  High Court set  aside the  order of  conviction and  sentence and acquitted the respondents.      2. The  material facts  may be  stated thus: On 17th of October, 1973  at about  12 A.M. Mst. Narman, widow of Danna (deceased) submitted  the first information report to A.S.I. Ram Sarup (P.W. 12) at village Pai. Her material allegations in the  first information report were that the previous day, respondent Sher  Singh and  his two  younger half  brothers, namely, Danna, her husband, and Hukmi, had effected a family partition  amongst   themselves  and   they  started  living separately. That  day, namely 17th of October, at about 6.00 A.M. her  husband, Danna,  along with his brothers Hukmi and respondents Sher Singh came to their bagichi nearby from the house in order to milk cattle. She followed them in order to fetch milk.  Respondent Sher Singh, then along with his sons Dalel, Balkar, Keni, Prem and Parwana surrounded her husband and her  husband’s younger brother, Hukmi, in the courtyard. Sher Singh  had a  Gandasi in his hand, Dalel a lathi shoded with iron  blade, the other three had lathis in their hands. Sher Singh  dealt a  Gandasa blow on the head of her husband Danna, who  immediately fell  down on the ground. Dalel then dealt a blow with iron shoded lathi on the head of Hukmi who also fell  down  on  the  ground.  The  other  accused  then inflicted blows  with lathis  on the  persons after they had already fallen  down. Respondent  Sher Singh  dealt  another Gandasi blow  on her  husband. She has further stated in the first  information   report  that   Mst.  Danni,  sister  of respondent Sher  Singh, was  also with her and witnessed the occurrence. They  screamed seeing  the  assaults,  whereupon they were  directed on pain of death to sit in the corner of the court-yard. 4 Out of  fear they  obliged. Thereafter,  it has further been alleged, the  accused persons  dragged the  dead  bodies  to their nearby  heap of  cow-dung  cakes.  Sher  Singh  spread kerosene on  the heap  of the cakes and Dalel set fire to it lighting a  match stick.  As a  result, the  two bodies were charred.      3. P.W.  12 sent the F.I.R. to the police station where the  case   was  registered.  Police,  after  investigation, submitted charge-sheet  and arrested  the  accused  persons. Eventually, the  accused persons  were charged under Section

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302/34 of  the  Penal  Code,  and  tried  in  the  court  of Sessions. The  accused persons  pleaded not  guilty  to  the charges. According  to them the three brothers were joint in residence,  mess  and  cultivation  till  the  date  of  the occurrence. The  defence of respondent, Sher Singh, was that his two  sons, Dalel  and Balkar,  and the deceased brothers Danna and  Hukmi, used  to sleep  in the  Bagichi during the night to  keep watch  over their  cattle tethered  there. On October 16,  1973 he  and his  two deceased brothers were in their fields  during the  day and  in the evening he went to their field  where cotton  was ripe and he remained there to keep watch over the cotton till next morning. That field was at a distance of about 1 1/2 miles from their Bagichi. About 1 1/2  hours after sun rise on October 17, 1973, he returned to the  Bagichi where he found the heap of cow-dung cakes in the enclosure  of Bagichi burning. Police then arrested him. The defence of respondent Dalel was that two days before the date of  occurrence he went to his maternal uncle, Lalji, at Narwara to borrow a tractor. He returned home on the 17th of October, 1973  at about  sun-set. He  found the heap of cow- dung burning  and police  inside the  Bagichi where  he  was arrested by the police. The defence of respondent Balkar was that he  was a  student of 9th class and on 16th of October, 1973 he had been to school to witness some sports. He passed the following night in village, Diwali, where his sister was married. He  returned home  on October  17, 1973 and when he reached the  Bagichi he  found the  heap of cow-dung burning and, he  was arrested  by the police there. Thus the defence of all the respondents was alibi.      4. When  an accused  pleads alibi, the burden is on him to prove  it under  Section 103  of the  Evidence Act  which provides:      "103. The  burden of  proof as  to any  particular fact      lies on  that person who wishes the Court to believe in      its existence,  unless it  is provided  by any law that      the proof  of that  fact shall  lie on  any  particular      person. 5      Illustrations: (a) A prosecutes B for theft, and wishes      the court  to believe that B admitted the theft to C. A      must prove the admission.      B wishes  the court  to believe  that, at  the time  in      question, he was elsewhere. He must prove it."      In this  case defence  did not  adduce any  evidence to prove the  alibi. On  the contrary  the evidence of P.W. 11, Lila, is  that on  21st October,  1973, all the accused were produced by  Lalji, the  brother of  the wife of respondent, Sher Singh  in village  Nand Karan Majra around 8 a.m., when they were  arrested. This  was in  presence of  P.W. 11  and several others. Police had been there the witness says, from October 17  to 20,  1973. This  evidence of  P.W. 11 remains unrebutted. The  plea of  the respondents that they had been elsewhere at  the time of the occurrence and returned to the place of  occurrence by  themselves on October 17, when they were arrested by police, is untrue.      5. Let  us now turn to and examine the prosecution case and see  whether the prosecution has proved the guilt of the accused beyond reasonable doubt.      6. The death of Danna and Hukmi is not in dispute. That the dead  bodies were burnt on the cow dung heap by the side of the Bagichi is also not in dispute.      The only  question for  decision is  whether Danna  and Hukmi were  murdered and their dead bodies were burnt by the respondents as  alleged by  the prosecution. The prosecution relies on the following piece of evidence:

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    (i)  Motive of the murder;      (ii) Direct evidence of the alleged eye witnesses, P.W.           3 and 4;       (iii) Extra  Judicial Confession  alleged to have been           made by respondent Sher Singh before P.W. 10; and      (iv) Recoveries of incriminating articles on disclosure           statements  alleged  to  have  been  made  by  the           respondents.      (i) Motive:-P.W.  3 Mst.  Narman has  deposed that  two days before the day of occurrence, deceased Danna, Hukmi and respondent Sher  Singh made  an amicable  partition of their property. They  divided their  land (except  Shamlat  land), house, cattle,  utensils and  grains. Respondent Sher Singh, however, refused to part with joint 6 cash and  jewellery. Danna refused to part with any share of the Shamlat land unless the cash and jewellery were divided. P.W. 4  Mst. Danni  and Jhanda (P.W. 10) support, P.W. 3, It therefore, appears,  that  there  was  some  sort  of  hitch between respondent  Sher Singh  on the one hand and his half brothers Danna,  and Hukmi  on the  other.  The  High  Court declined to  accept the evidence of P.W. 10 in as much as he had not  mentioned the  fact of  partition in  his statement before the police.      The prosecution  is not  bound to  prove motive  of any offence in  a criminal  case, in  as much as motive is known only to the perpetrator of the crime and may not be known to others. If  the motive  is proved  by prosecution, the Court has to  consider it  and see  whether it is adequate. In the instant case  the motive  proved was  apparently inadequate, although it might be possible.      (ii) Direct  Evidence:-P.W. 3  Mst. Narman  has deposed that 15 days before the date of occurrence, P.W. 4 Danni who was at  her husband’s house to help her as she was expecting a child  one of these days. In fact she delivered a child 12 days after the occurrence. She has supported the prosecution case in its entirety. She says that in the morning about the time of  sun-rise on  the date of occurrence, deceased Danna and Hukmi  went to the Panchayat land where their cattle had been tethered  in order  to milk  them. She followed them to bring milk home. Danna also accompanied her to make cow dung cakes. At  that time she found that the respondents had been standing in the Panchayat land armed with dangerous weapons. Respondent Sher Singh gave Gandasi blow on the head of Danna who immediately  fell down  on the ground. Dalel also gave a blow on  the head  Hukmi who  also fell  down. All  of  them thereafter  indiscriminately   assaulted  the   two  injured persons. Both  of them died as a result. She and Danna began to scream whereupon the culprits asked her and Danna to keep quiet on  pain of  death and  they asked  them to sit on one side of the place. Both of them out of fear did as directed. She has  further deposed  that the respondents including the other miscreants  dragged the  two dead bodies to the nearby heap of  cow dung  cakes and  placed the  dead bodies on it. Respondent Sher Singh then brought a tin of kerosene oil and sprinkled it  on the  heap of the cow dung cakes. Respondent Dalel put  fire to  the cow dung cakes. When the heap of the cow dung  cakes was burning they set weeping there while the respondents were scrapping the blood stains on the earth and throwing them to the burning cow dung cakes. After some time P.W. 10 Jhanda and 7 one Bhagtu  came to  the place  of occurrence after the dead bodies were  put to  fire. They inquired of Sher Singh as to why they were burning the cow dung cakes. Sher Singh replied

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that he  had murdered his two brothers and was burning their dead bodies.  He, however  threatened them to mind their own business and  said that if they raised any alarm, they would be similarly  murdered and  put to  fire. P.W. 10 Jhandu and Bhagtu then  left the   place.  The process  of burning took about three  hours. All  this time  the culprits were at the place of  occurrence scraping  the blood stained spots. They then changed  their blood stained clothes, threw them to the fire and  put on new clothes and left the place with weapons in hands  towards village  Bhana. After the departure of the culprits the  witness along  with P.W. 4 left for the nearby village. They  narrated the  occurrence to the villagers and told them  as to how her husband and brother-in-law had been murdered and their dead bodies burnt. But they remarked that that was  a dispute  between brothers  and they could not do anything. The  witness then  left  the  village  for  police station at  Pundri to  lodge an  offence report.  On the way falls village  Pai, at  the distance of about 4-5 miles from the place  of occurrence,  she met  at village  Pai a police officer  and   two  constables  to  whom  she  narrated  the occurrence. Her  statement was  recorded  by  P.W.  12,  Ram Sarup, an  Assistant Sub-inspector of Pundri Police Station, who was  at Pai.  She  was  then  accompanied  home  by  two constables. While  P.W. 12  sent the  F.I.R. to  the  police station for  registering a  case. They  reached the place of occurrence, after some time. A short while after the arrival of the  witness and  the two  constables  at  the  place  of occurrence, a  senior police officer arrived at the place of occurrence. They with the help of some other persons who had gathered there  in the  mean time  started to extinguish the fire by putting buckets of water on it.      P.W. 4  Danni corroborates  P.W. 3 on the commission of murder of  the two  deceased by  the respondents  and a  few others. P.W.10 who came to the place of occurrence on seeing smoke from  the heap  of cow-dung  cakes, inquired  of  Sher Singh as  to what  was happening. He has deposed that he was told by  Sher Singh  that he had killed his two brothers and was burning  their dead bodies and that he was asked on pain of murder  to mind his own business, and not to raise alarm. He and Bhagtu then left the place.      P.Ws. 3  and 4  were cross-examined  at great length by the defence counsel but nothing significant could be brought out  in  order  to  demolish  their  basic  and  substantial evidence given in examination- 8 in-chief. Only  some  minor  discrepancies  with  regard  to omissions of  details in their statements to the police were brought  out.  These  omissions  in  our  opinion  were  not contradictions and insignificant.      The High Court has rejected the evidence of P.Ws. 3 and 4 on  the ground  (a) that  they were close relations of the two deceased;  (b) that P.W. 3 had omitted to mention in the F.I.R. that  she had  informed any  person  of  the  village before leaving  for the  police station;  (c)  that  it  was ’highly improbable  and unnatural’  that P.W.  3 would go to the place  of occurrence  from her  home  when  she  was  in advance pregnancy;  (d) that  she was not accompanied to the police station  by anybody;  (e) that  none of the villagers came to the place of occurrence; and (f) that she and P.W. 4 did not physically attempt to save the two deceased who were respectively their  husband and brother. Ultimately the High Court found  that "most probably both Smt. Nariman and Danni were not  present on  the spot  and had  not  witnessed  the occurrence."      In our opinion the conclusion arrived at by the learned

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High Court  is untenable. The learned High Court has taken a very unrealistic  view of the situation and of the facts and circumstances of  the case. There is no evidence that P.Ws 3 and 4  could or did raise any alarm. When they were about to scream they were threatened on pain of murder, to keep quiet and sit. There is evidence that both the deceased as well as P.Ws 3  and 4  were unarmed,  whereas the  respondents  were armed with dangerous weapons. In such a situation it will be too much  to expect  of P.Ws  3 and  4 to  try to physically intervene and  save the  two deceased.  Although it  is true that P.Ws  3 and 4 were close relations of the two deceased, their evidence  could not  be rejected  on that ground. They were also related to the respondents and there is nothing on record to  show that  they were  inimically disposed  to the respondents to  falsely implicate the respondent in a murder case like  this.  They  were  the  most  natural  witnesses. Although it  was not  the case  of defence  that some of the people of  the Panchayat  conspired with  P.Ws 3  and  4  to implicate the respondents in this murder case the High Court made out its own theory to that effect. There is no evidence or circumstances  from which  that inference could be drawn. It was  a pure  conjecture that "it was best opportunity for the Panchas  and Sarpanch  and  other  respectables  of  the village to take special interest in bringing the culprits to book by  contacting  the  police  at  the  earliest  if  the culprits were  not other  persons than  the appellants." The High Court has also based its finding on conjecture that the two deceased were murdered by unknown culprits and they were falsely implicated by the village 9 respectables" on  suspicion. This  hypothesis does not stand any scrutiny.  Respondent Sher  Singh in  his statement says "It was  routine for  me and  my two elder sons and two step brothers to  sleep in the Bagichi during night where we used to tie  our cattle."  Even the  High Court  has found "..... that they  (deceased) like  Sher Singh  or Sher Singh’s sons used to sleep in the Bagichi in the night to keep watch over them  (cattle)."   If  that  be  so,  had  the  murder  been perpetrated by  unknown culprits,  there was no reason as to why the  the respondents did not intervene and inform any of the neighbours. The learned High Court, as stated above, has rejected the  evidence of  P.W. 3 on the ground that she did not mention  in the  F.I.R. that she had informed any person of the  village before she lodged the F.I.R. The F.I.R. need not contain  the details  of the  occurrence.  The  omission referred to  by the High Court is an omission of details and not really  a contradiction.  The High  Court also  was  not right in observing that it was surprising ’that as stated by Mst. Narman  nobody in the village listened to her story nor did anybody  go to  her help  when she went to Abadi land of the village  after the  departure of the appellants from the place of  occurrence." In fact P.W. 10 had come to the place of occurrence  before  P.Ws  3  and  4  left  the  place  of occurrence for  the village.  The way P.W. 10 was treated by respondent, Sher  Singh, was  sufficient to  deter any other villager to  come to the place of occurrence. The High Court has also  found it  a ’mystery’  that none  of the villagers came to  the place  of  occurrence  and  intervened  in  the matter. There is no evidence on record to show that when the assaults on the deceased were in progress or the dead bodies were being  burnt, any  of the  villagers in fact knew about the occurrence.  In fact  P.W. 10  and Bhagtu  had seen  the smokes from  the cow  dung cakes,  and came  to the place of occurrence.      The High  Court has  also observed that it was unlikely

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that P.W. 3 would go to the Bagichi in such an advance stage of pregnancy  in order  to bring milk from there at sun rise in as  much as  P.W. 4 had already come there to help her in domestic work.  It is  common experience  that  in  villages women who  regularly attend to their domestic chore and work in the  field, work some time till the very moment of actual child birth.  P.W. 4  was brought  to help  her  as  in  her advance stage  of pregnancy she could not work as briskly as before. The  learned  High  Court  has  also  observed  that presence of P.W. 4 Danni at the place of occurrence was "not natural because  had she  been present  there she would have out of  love for her real brothers physically intervened and tried to  save them  from the  clutches of assaults." It has been observed before that they were asked to keep 10 quiet and sit on pain of murder. It cannot be forgotten that Danni was  also an  unarmed  village  women  and  the  first instinct of a being is the instinct of self-preservation. In our opinion,  therefore, it  was not,  "unnatural" that  she would not,  as she  could  not,  attempt  to  save  the  two deceased from  murder. The High Court has also observed that in any  case P.W. 4 would have raised hue and cry. She could not raise  an outcry  as she was told by Sher Singh that she would be murdered and burnt, if she did so. It was therefore but natural that she did not raise any hue and cry.      (iii) Extra  Judicial Confession:- The evidence of P.W. 10 has also been referred to above. He has deposed that when seeing the  smoke he  went to  the place  of occurrence  and inquired of  Sher Singh as to why they were burning the heap of cow  dung cakes,  he replied that he had murdered his two brothers and  was burning  their dead  bodies.  This  is  an extrajudicial confession  so far as Sher Singh is concerned. The High  Court has  not accepted the evidence of P.W. 10 on the ground  that this  was not  mentioned by  P.W. 3  in the first information  report. This was an omission. That apart, it must  be remembered that P.W. 4 who saw with her own eyes such a  brutal murder of her husband and brother-in-law must have been dazed and at her wits end. In such a situation, it could not  be expected of her to give all the details in the first information  report. And  on account  of the omission, P.W. 10 could not be disbelieved.      (iv) Recoveries  of incriminating  articles :- The last piece of  evidence on  which reliance  has been taken by the prosecution is  the recoveries of incriminating weapons. The evidence of  P.W. 13,  the Investigating  Officer,  is  that respondent Sher  Singh on  23rd  of  October,  1973  made  a disclosure statement which is Exhibit PL. The disclosure was that Sher  Singh had  kept concealed a Gandasi in the bundle of sugar  cane in  his field  and  he  could  get  the  same recovered. In pursuance of his disclosure the Gandasi Ex. P. 26 was  recovered from  that place.  The Gandasi was stained with blood  and was  seized under  seizure memo Ex. PL/1. On the same  day  respondent  Dalel  Singh  made  a  disclosure statement Ex.  PM and disclosed that he had kept concealed a lathi to which an iron piece was attached in his Gowar field and he  could get  the same  recovered. In  pursuance of his disclosure, lathi Ex. P. 27 which was stained with blood was recovered. It was seized under seizure memo Ex. PM/1. On the same  day   respondent,  Balkar   Singh  made  a  disclosure statement, Ex.  PN that he had kept concealed a lathi in his kikar branches fence and he could get the same recovered. In pursuance of his disclosure 11 statement, lathi  Ex. P. 28 which was stained with blood was recovered. It  was seized under seizure memo Ex. PN/1. These

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discoveries were  made in  presence of P.W. 11 Lila, who was Sarpanch of  the local panchayat. The High Court declined to put any importance to the recoveries as the respondents were not interrogated  by Police  from October  20 to  24. In our opinion that  cannot be  a sufficient  justification to hold that the  recoveries were ’fake’. The weapons were recovered at the pointing of the respondents.      In addition  the Investigating  Officer seized an empty kerosenetin lying  at the  place of  occurrence, The tin was emitting smell  of kerosene  oil and  it  was  seized  under seizure memo  Ex. PJ  which was  attested  by  P.W.  11.  In addition  another   circumstance  tends   to   support   the complicity of  the respondents  in the  offence. It  is  the conduct of  the respondents.  The two  deceased who had been murdered,  by  whomsoever  it  might  be,  were  near  blood relations  of  the  respondents.  If  the  murder  had  been committed by  some others,  as supposed  by the  High Court, they would  not have kept quiet. Of course, they have stated in their defence that they were away from home in some other places and  returned to  the place  of  occurrence  on  17th October, 1973  which has been found by us to be untrue. This conduct of the respondents is incriminating.      7. As  a result  of  the  above  discussions  we,  hold agreeing with  the learned Sessions Judge, that the guilt of the respondents  has been  established  by  the  prosecution beyond all  reasonable doubt.  In the  result we  allow, the appeal, set aside the judgment and order of acquittal of the High Court  and convict the respondents under Section 302/34 of the Penal Code.      8. Now  comes the  question of  sentence. The murder is ghastly and  brutal.  Respondent  Sher  Singh  deserved  the extreme penalty  provided by law, The learned Sessions Judge was right  in imposing death sentence on him. But in view of the fact that the learned Sessions Judge passed the order of conviction and  sentence as early as 27th July, 1974 and the High Court  passed the order of acquittal as early as 2nd of April, 1975,  we refrain from visiting respondent Sher Singh with the  extreme penalty  provided by  law for  murder.  We sentence all  the respondents  to imprisonment  for life. We are told  that respondents  Balkar Singh and Dalel Singh are on  bail.   Their  bail  bonds  are  cancelled.  They  shall surrender forthwith to serve out their sentences. N.V.K.                                       Appeal allowed. 12