JUDGMENT

Swatanter Kumar, J.

1. Fine distinctions of law, if discerning, should normally be recognized and permitted to operate in their respective fields. With the development of criminal jurisprudence, the law has recognized the concept of cognate charges besides alternative charges. The differentiation between the offences from the same family in contradistinction to the offences falling in different categories have persuaded the courts to apply the principle of 'cognate offences' and punish the offender of a less grave offence because the offence of greater gravity has not been proved beyond reasonable doubt. This principle is to be applied keeping in view the facts and circumstances of a given case and notwithstanding the fact that no charge for such less grave offence had been framed against the offender. In the case in hand, we are concerned with a similar question which arises from the following facts:

All the five accused, namely, Rafiq Ahmad, Ahsan, Imamuddin, Arun Kumar and Yashwant Singh, according to the prosecution, in the intervening night of 30th September, 1977 and 1st October, 1977 committed dacoity in Ambassador Car No. UPS 7293 belonging to Rafiq Ahmad. While the car was going on the pucca road from Nehtaur to Dhampur within the jurisdiction of thana Nehtaur, the accused had committed the murder of Jagdish Prasad @ Jagdish Chandra @ Jagdish Babu and thereafter thrown his body in a sugarcane field of one Ikrar Ahmad situated in Village Kashmiri, thana Nehtaur with the intention of screening themselves from punishment for committing any offence. Shri Krishna Garg, uncle of the deceased was carrying on the wholesale business of sugar, Khandsari, flour, food grains etc. under the name of M/s. Badri Prasad Sunder Lal in Mohalla Bari Mandi, Dhampur (Bijnor). This firm had branches in the name of 'Garg Brothers'. The firm used to sell the above products on credit to the customers at Dhampur, Nagina, Sherkot, Sheohara, Haldaur and Nehtaur and the deceased, Jagdish Prasad, used to go to Nehtaur every Friday to realize money from them. On Friday, 30th September, 1977, also he left for Nehtaur to collect money. Ordinarily, he used to return home between 9.00 p.m. and 10.00 p.m. with collections roughly up to ` 10,000/-. Though, Jagdish Prasad, on that day also had collected more than ` 8,000/- from the customers, but he did not return home that night. The next morning, Shri Krishna Garg sent his Munim, Ramesh Chandra to Nehtaur to enquire about Jagdish Prasad. The Munim returned and disclosed to Shri Krishna Garg the above facts. After arrival of the Munim, Shri Krishna Garg left Dhampur for Nehtaur along with Pyare Lal, Surendra Kumar, Har Kishan and Kamlesh to enquire about Jagdish Prasad. From the enquiries, it came to light that at about 8.00 p.m., the deceased Jagdish Prasad had occupied a taxi, in which some persons were already sitting, at the Agency Chauraha, Nehtaur. The matter was reported and after making an entry in the GD on 1st October, 1977 at 2.30 p.m., SI K.L. Verma started investigation and interrogated a number of persons including Shri Krishna Garg and Pyare Lal. Thereafter, a case was registered under Section 364 of the Indian Penal Code (IPC). On 2.10.1977, the investigation was taken up by Station Officer (S.O.) Raj Pal Yadav and both Mr. Verma and Mr. Yadav left the police station together for investigation and reached P.S. Dhampur. At about 9.00 pm, accused Rafiq Ahmad was arrested by the police along with his taxi No. UPS 7293. His arrest led to recovery of the taxi which was made in presence of Pyare Lal and Surendra Kumar. During the course of the investigation, the accused Rafiq Ahmad also made a confessional statement before the investigating officer in presence of Surendra Kumar and Pyare Lal that the dead body of the deceased was lying in the sugarcane fields near village Kashmiri. The body of the deceased was, thus, recovered and identified by Pyare Lal. SI K.L Verma (PW9) prepared the in