Judgment

RANGANATH MISRA, J. :- The appellant had been convicted under S. 302 I.P.C. and was sentenced to death by the learned Additional Sessions Judge, Chandigarh. The death sentence has been commuted to one of imprisonment for life by the High Court. The appellant was also convicted for offences under Ss. 364 and 201, I.P.C. but no separate sentences have been awarded either by the trial Court or by the High Court. This appeal is by special leave.

2. The appellant was tried along with three others and all of them were charged under Ss. 120B, as also 366, 368 and 376, I.P.C. Prosecution alleged that the appellant was having illicit relationship with PW 14, widow of Sardar Ali, the deceased and he intended to do away with Sardar Ali so that he could take PW 14 to his own house. On Oct. 15,1975, the appellant came to the house of Sardar Ali where PW 14 was present and suggested to the deceased that he may accompany him to Chandigarh for light refreshment. Appellant and Sardar Ali left for Chandigarh in the afternoon by cycle indicating to PW 14 that Sardar Ali would return by 8 or 9 P.M. They reached the general bus stand at Chandigarh and left the cycle at the stand. From there appellant took Sardar Ali on his motorcycle to Joginder Singhs shop (PW 13) at Khumano. They reached there around 8 P.M. by then both of them had taken liquor and PW 13 entertained them with more liquor. At this stage the appellant is said to have called PW 13 from his shop and told him that Sardar Ali was now under the influence of liquor and the opportunity of killing him may not be lost. It is alleged that PW 13 dissuaded him from doing so whereupon the appellant pointed out that his brother Rakha (who had been tried as an accused) would make all arrangements and there was nothing to be afraid of. From there all the three went on motorcycle to Bhakra Canal side. Around 10 P.M. after they had got down from the motorcycle, the appellant took out a plastic string from the basket of the motorcycle and put the same around the neck of the deceased and made him lie on the ground and sat upon his chest. PW 13 is said to have held his legs while the appellant throttled him to death. The pant and the shirt worn by the deceased were removed and the dead body was pushed into the canal. The pant and shirt of the deceased were concealed in a burrow pit near about the locality where the deceased was murdered. The following day Rakha went to the house of the deceased and informed PW 14, the widow, that her husband was having stomach pain and had sent words for her to come. She accompanied Rakha but could not find her husband. Later on the entire conspiracy was discovered. PW 13 turned approver and on the basis of the approvers evidence corroborated by circumstantial evidence like recovery of the pant and the shirt worn by the deceased and extrajudicial confession, the prosecution case was accepted by the trial Court. The trial Court, however, categorically found that there was no criminal conspiracy as alleged. He also found that the allegation of rape of PW 14 Was totally false. On these findings he acquitted the coaccused.

3. Both the trial Court as also the High Court did not give full effect to the finding that there was no conspiracy. If there was no conspiracy, association of PW 13 with the process of murdering the deceased is difficult to believe. It is clear that the appellant had not intended to murder the deceased when they left their village for Chandigarh. PW 13 on his own showing had never agreed, until he was prepared to hold the legs of the deceased at the time he was murdered, to do away with the life of the deceased. Even if the appellant had intended to kill the deceased he would not, have taken PW 13 along with him to evidence the act of killing.

4. PW 13 appears to have been brought before the Court in a hand-cuffed condition. There is enough material in his evidence to show that when he was examined police and jail officials were present. It is di