Amar Dutt, J.

1. Criminal Appeal No. 854-DB of 2004 has been filed by Pancho while Criminal Appeal No. 900-DB of 2004 has been filed by Pratham and Gajraj appellants to challenge their conviction and sentence recorded against them by the Additional Sessions Judge, Faridabad on 6/7.10.2004. In the case of Pancho, this Court has also received Murder Reference No. 6 of 2004.

2. Briefly stated, the facts of the prosecution case, as brought out in the testimony of its witnesses, are that on 8.2.1999 at 8.40 A.M., Jagat Singh son of Partap Singh, resident of Aurangabad lodged a report to the effect that his brother Kartar Singh, who had on 7.2.1999 gone to the Sugar Mill, Palwal on his own tractor, for which no registration number had, till then, been obtained for bringing back two unloaded trollies of Sugar Cane that were already parked outside the Sugar Mill. On the morning of 8th, at about 7 A.M. the family of Jagat Singh had been informed that the dead body of Kartar Singh was lying in a pool of blood at a distance of 10 feet near the road in the fields of Jagbir Singh resident of Gopalgarh. Both the trollies were parked on the road side but the tractor was not at the spot. Jagar Singh suspected that some unknown persons had opened fire, which hit his brother on his waist as a result of which injuries, Kartar Singh had died and these unknown persons had taken away the tractor. The FIR was recorded by PW12 ASI Keshav Ram, Incharge, Police Post, Aurangabad and the special report in relation to this case reached the Judicial Magistrate, Palwal at 12.35 P.M.

3. The investigation in this case apparently did not make any head way until 31.7.1999 when Nathi Singh PW-4 Ex-Member of Panchayat had met Inspector Raghbir Singh PW-7 and produced before him appellant Pratham. According to Nathi Singh PW-4, on 31.7.1999 Pratham appellant had approached him with the request that he should be produced before the police. He had also appraised him that on 5.2.1999 Pratham along with Shishu and Gajraj were sitting at the house of Pratham. Gajraj told them that they were in need of money. Pancho said that he had a country made pistol. During the discussion, it was further brought up that there was a Sugar Mill at Bamnikhera where some farmers came with new tractors and, therefore, four of them had planned the robbery. They had then gone on a truck to Bamnikhera at 7 P.M. where Gajraj and Shishu had a conversation with the Driver Kartar Singh and when the tractor was unloaded both of them accompanied Kartar Singh in his tractor. Shishu and Pratham were standing outside. When the tractor travelled at a distance of two killas then Gajraj gave a signal towards Pancho, who had fired a shot at Kartar Singh from his country made pistol. Gujraj stopped the tractor and left the tractor trolly on the spot, removed the dead body of Kartar Singh and threw the same in wheat fields and four of them had run away with the tractor to reach Paramendra via Barsana. They had taken tractor to Bhago and narrated the entire incident to him and asked him to sell the tractor. Thereafter, they had gone back to their house. They came back after a couple of days with the tractor and came to know that tractor could not be sold, whereupon they had removed some parts of the tractor and left the same on the road near Bharatpur. Pratham was produced before Inspector Raghbir Singh on 31.7.1999. The Inspector arrested Pratham and interrogated him. During interrogation, Pratham reiterated the statement, which was made by him before Nathi Singh PW-4. On the same day, Inspector Raghbir Singh tried to search Shishu, who had been named as co-accused by Pratham and eventually arrested him and brought him to the police station. On 1.8.1999 Pratham accused was produced in Court. On interrogation, he disclosed that he had left the tractor and concealed some parts, which had fallen to his share i.e. the seat cover etc., in his field and could get the same discovered and disclosure statement, which was reduced into writing as Ex. PJ/1, was attested by Samunder Singh and Hardev. In pursuance of the disclosure statement, Pratham led the police party and got discovered the articles mentioned therein, which were taken into possession through recovery memo Ex. PJ. On the same day, Sishu was interrogated and he made a disclosure statement regarding his having kept concealed one battery box along with one tool box, which had fallen to his share in the Kotha of fodder and could get the same discovered. The disclosure statement is Ex. PK, which was attested by Samunder Singh and Hardev. On 2.8.1999, Shishu led the police party and got discovered the aforesaid articles, which were taken into possession vide recovery memo Ex. PK/1. Samunder Singh had identified these articles to be those which had been taken out of their tractor. On 16.8.1999 when Inspector Raghbir Singh along with police party was present in connection with the investigation of this case near Dabchick, he arrested Pancho on the basis of suspicion and his personal search led to the recovery of a country made pistal of .315 bore, Ex. P12, which was taken into possession vide recovery memo Ex. PL, attested by Samunder Singh and Hardev. He had thereafter interrogated Pancho, who had kept concealed three pieces of ropes along with one iron pipe being the booty of his share in the hills of village Barsana. The same was reduced into writing and attested by Samunder Singh and Hardev and in pursuance of the disclosure statement, Pancho had got discovered iron pipe and three pieces of rope which again were identified by Samunder Singh to be that of the tractor. These were taken into possession through recovery memo Ex. PM/1.

4. On 25.9.1999 Gajraj was arrested and during his remand, he made a disclosure statement regarding his having kept concealed three pieces of rope which had fallen to his share in his house, which he could get discovered. The disclosure statement was reduced into writing as Ex. PN, which was attested by Samunder Singh had Chhatar Parsad. Thereafter, Gajraj got discovered three pieces of rope from the place pointed out by him which was taken into possession through recovery memo Ex. PN/1. During interrogation, the Investigating Officer had prepared site plans Ex. PK/2, Ex. PJ/2, Ex. PL/2 and Ex. PN/2 in relation to the place from where Shishu, Pratham, Pancho and Gajraj had got discovered the articles. During investigation, Shishu accused had died. The Investigating Officer recorded the statements of the witnesses and on completion of the investigation, the challan was put in the Court of Illaqa Magistrate, who in turn, had committed the case to the Court of Session for trial.

5. The Additional Sessions Judge, Faridabad, on going through the papers sent up with the challan, had framed change against the appellants under Section 396 Indian Penal Code, to which they pleaded not guilty and claimed trial.

6. To bring home the charge, the prosecution examined PW1 Jagat Singh; PW2 Dalbir Singh; PW3 Partap Singh; PW4 Nathi Singh; PW5 Shamsher Singh Constable; PW6 Nauran Singh Constable; Raghbir Singh SI PW7; Bhagat Singh SI PW8; Nawal Singh Patwari PW9; H.C. Nasir Ahmed PW10; Bhagat Singh SI PW11; Keshav Ram ASI PW12; Hardev Singh PW13; H.C. Jug Lal PW14; Samunder Singh PW15; Govardhan Constable PW16; Dr. Jagmohan Mittal PW17; ASI Abdul Subhan PW18; Jaswant Constable PW19; Vinod Kumar PW20; Hazari Lal HC PW21; Mahesh Chand PW22; Bangali Singh PW23 and Raghbir Singh PW24.

7. When examined under Section 313 Criminal Procedure Code, the appellants denied the allegations of the prosecution and asserted that this is a false case. Pratham and Pancho appellants examined one Rattan Singh as DW1 whereas Gajraj appellant examined Udey Singh as DW2.

8. The trial Court after hearing the arguments came to the conclusion that the case against the appellants was proved beyond reasonable doubt. Pancho appellant was sentenced to death for the offence under Section 302 Indian Penal Code whereas his co-accused Pratham and Gajraj were sentenced to undergo imprisonment for life for the offence under Section 302 read with Section 34 Indian Penal Code. These two appellants namely Pratham and Gajraj were further sentenced to pay a fine of Rs. 20,000/- each and in default of payment of fine, to undergo further RI for three years beyond the period of fourteen years contemplated in Sections 433/433(A) of the Code of Criminal Procedure. All the three appellants were sentenced to undergo R.I. for ten years each and to pay a fine of Rs. 10,00/- each and in default of payment of fine to undergo further RI for 2-1/2 years under Section 392 Indian Penal Code. Both the sentences were ordered to run concurrently. Hence, this Murder Reference and the two appeals.

9. We have heard learned counsel for the State, learned Amjicus Curiae appearing on behalf of Pancho, learned counsel for the appellants and learned counsel for the complainant.

10. In the present case, the death of Kartar Singh was reported for the first time before the police on 8.2.1999. The informant, who was brother of Kartar Singh deceased, had indicated that his brother Kartar Singh had left on 7.2.1999 on his own new tractor for going to Palwal. It was further stated that the failure of the deceased to return in the evening and till the time of the lodging of the FIR had occasioned the necessity of investigating machinery of the State to come into motion. No substantial progress was apparently made in the case until 31.7.1999, when Pratham accused was produced before Police Station, Palwal by Nathi Singh PW4, after he had made a confession before him to the effect that on 5.2.1999 he along with his co-accused Shishu and Gajraj had, to tide over monetary difficulties faced by them, accepted the proposal of Pancho that as some farmers used to come to Sugar Mill of Bamnikhera, they should plan a robbery and upon an agreement being reached between them, they had in a truck reached Bamnikhera at 7 P.M. There, Gajraj and Shishu had got a conversation with Kartar Singh deceased and when the tractor and trolley have been unloaded, accompanied him to the place where Shishu and Pratham were standing. They had travelled for a distance of two killas on the tractor and Gajraj had signalled Pancho to fire a shot from his country made pistol. Kartar Singh had been fatally injured and fallen from the tractor on account of the gun shot injuries and had thrown the dead body in the wheat field and driven the tractor away to Paramendra via Barsana. The version given by Pratham was verifiable in relation to the following factors :-

(i) Whether the pistol, if recovered during the investigation, can be proved to have been used by Pancho through independent investigation

(ii) Whether the participation of co-accused was proved by other independent circumstantial evidence

11. Nathi Singh PW4 had also described how he had been told by Pratham that his companions had asked one Bhago to help them to sell the tractor and this could not be done. They had removed some parts of the tractor for being sold separately by each one of the conspirators. Corroboration to this part of the story is available in the testimony of Hardev Singh PW13 and Samunder Singh PW15. These are the witnesses, before whom Pratham accused had made a disclosure statement Ex. PJ regarding his having taken a Bumper of the tractor and seat cover pursuant whereto, he had got discovered the same and these articles were taken into possession through recovery memo Ex. PJ. A similar disclosure statement Ex. PK was made by Shishu accused regarding tool box and battery, which had fallen to his share and this was got recovered by him through recovery memo Ex. PK/1. The articles recovered were produced in Court and marked as P1 to P6. On 16.8.1999 the police had arrested Pancho on suspicion and during his personal search, a country made pistol of .315 bore was recovered from his pocket, which was taken into possession through recovery memo Ex. PL. Pancho had also, during interrogation, made a disclosure statement about his having kept concealed three pieces of rope and one pipe, which were part of his booty in the hills of village Barsana and he had pursuant to the disclosure statement got discovered these articles. Similarly on 28.9.1999, Gajraj was interrogated and he too had made a disclosure statement regarding three pieces of rope, which had fallen to his share of the booty and had got the same recovered pursuant to his disclosure statement Ex. PN. The pieces of rope were taken into possession vide recovery memo Ex. PN/1. The assertion regarding parts of the tractor, which were recovered pursuant to the disclosure statements made by Pratham, Shishu and Gajraj accused have not been successfully assailed in cross-examination by the counsel for the appellants in the trial Court and, therefore, the trial Court had relied upon the factum of the booty having been discovered pursuant to the disclosure statement of Pratham and Gajraj appellants to come to the conclusion that they had in fact participated in the incident in which Kartar Singh had lost his life, subsequent whereto, these three had divided their shares of booty among themselves. With regard to the participation of Pancho as well as other accused, we have unassailable evidence of Forensic Science Laboratory to the effect that the gun discovered pursuant to the disclosure statement made by Pancho was the gun, which was used for firing shots that were responsible for killing Kartar Singh. The fact that the parts of the tractor that were discovered pursuant to the disclosure statements made by the co-accused too substantiate the prosecution stand that the three co-accused were involved in the occurrence in which Kartar Singh had lost his life. The doctor found following injury at the time of post-mortem conducted on the dead body of Kartar Singh :-

"There was a fire-arm wound of size 3 cm x 3/4 cm on left side of back on dorsal region at the level of 9th dorsal spine. The wound was vertical in direction. There was a collar of abrasion around the wound. There was burning and scratching around the wound in area 8 cm x 8 cm. The clothes opposite the wound were burnt and also the chaddar (outer cloth) was blackened due to gun powder. Some blackening on shirt and baniyan was present. Clotted blood was present around the wound and also the clothes were badly blood stained. The wound was going in the body forwards and upwards, piercing muscles, vessels and soft tissue. After it the wound was going further upwards piercing left lung and then right side of heart near right atrium. After piercing heart the bullet had (embedded) in the chest in the midline near forth rib. Plueral cavity and pericardial cavity were full with blood. The bullet was taken and sealed and handed over to the police. (There was no exit wound)."

12. There is no material on the record, which could enable us to conclude that Pancho was actually not responsible for the killing of Kartar Singh and, therefore, give the benefit of doubt to all the appellants.

Following judicial precedents were cited for canvassing proposition that an extra-judicial confession is a weak type of evidence:-

1. Balbir Singh v. State of Punjab, 1996(3) RCJ 515 (SC);

2. Kishan Lal v. State of Rajasthan, 1999(3) RCR(Criminal) 735 (SC);

3. State of Punjab v. Gurdeep Singh, 1999(4) RCR(Criminal) 75 (SC).

13. There is no dispute with the legal proposition but the Court is duty bound to see whether the law enunciated would apply to the facts of a particular case. The case in hand is not one where there is no corroboration of the extra-judicial confession. As already pointed out by us, there is sufficient evidence available on the record, which prove the participation of the appellants in the incident in which Kartar Singh lost his life and, therefore, to our mind the conviction recorded by the trial Court does not suffer from any infirmity and has to be upheld.

14. We may now examine the question of whether the death sentence awarded by the trial Court in the case of appellant Pancho can, in the facts and circumstances of this case, be upheld. The Court below had charged the appellants under Section 396 Indian Penal Code. This charge could not, in law, have been framed against them on account of the fact that only four persons were accused of participation in the crime and to bring home to charge under Section 396 Indian Penal Code. Sections 396 and 392 Indian Penal Code are reproduced as under :-

"396. Dacoity with murder. - If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

"392. Punishment for robbery - Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine, and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."

The Code required participation of atleast five persons in the incident. The trial Court has, therefore, come to the conclusion that the offence would be one which would fall under Section 392 Indian Penal Code and convicted the appellants under Section 302 read with Section 34 Indian Penal Code. It is not disputed before us that in view of Section 464 Criminal Procedure Code the only legal impediment which stood in the way of the trial Court adopting this procedure may have been an assertion that the same had occasioned the failure of justice. During arguments of the appeals and the Murder Reference, no such plea was advanced and, therefore, upon examining proceedings that were conducted before the trial Court, we find that no such infirmity appears to exist on the file. The appellants have been rightly convicted and sentenced. Consequently, Criminal appeal No. 900-DB of 2004, filed by appellants Pratham and Gajraj is dismissed being devoid of merit.

15. In the case of appeal filed by Pancho and Murder Reference, we are faced with the situation where the trial Court while trying the case under Section 302 read with Section 34 Indian Penal Code had come to the conclusion that the act of one, namely, Pancho warranted imposition of death sentence. In view of the fact that the State has not come up in appeal nor has it filed revision for enhancement of the sentence imposed upon the three appellants, we deem it appropriate in a case where the persons sharing common intention of appellant Pancho have been sentenced only to life imprisonment, that the sentence imposed upon Pancho should be reduced to imprisonment for life as there is no way in which this Court can suo motu vary the sentence imposed upon the three appellants. In this view of ours, we are supported by a judgment rendered by this Court on 23.12.2003 in State of Punjab v. Gurbax Singh, Murder Reference No. 7 of 2002, wherein it has been held as under :-

"Since no appeal has been filed by the State seeking enhancement of the sentence imposed upon other co-accused, it would not be appropriate for this Court to make any exception in the case of Gurbax Singh and treat him differently from his other co-accused in the matter of sentence that has to be imposed upon him. Even though, we may feel that but for the avarice of Gurbax Singh to take advantage of the absence of any other member of the family in the house not only to take away the ornaments that pawned at his behest but also take away the money, which he is alleged to have collected for redeeming them, this incident may not have taken place, yet in the absence of adequate material on the record to prove that his case would be one of those rarest of the rare cases, which would warrant the capital punishment for all, we would refrain from awarding the death sentence and feel that ends of justice would be sufficiently met by imposing penalty of life imprisonment on Gurbax Singh."

16. For the reasons recorded above, Murder Reference No. 6 of 2004 is declined and appellant Pancho is sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/-. In default of payment of fine he is ordered to undergo further rigorous imprisonment for six months.

17. Except for the above modification, Criminal Appeal No. 854-DB of 2004 filed by appellant Pancho is dismissed.

Appeal dismissed.