The judgment establishes the importance of scrutinizing extra-judicial confessions, specific questioning of the accused, and evidence of common intention to murder in criminal cases.

MEHTA, J.

This is a Special Appeal under S.25, cl.2, Madhya Bharat High Court Act. The accused appellants Hemraj and Fakirchand are convicted under S.385, Gwalior Penal Code, corresponding to S.390, Indian Penal Code, and sentenced to rigorous imprisonment for ten years each and fine of Re.1 each by the Sessions Judge, Ujjain. As the learned Sessions Judge found both the accused also guilty under S.292, Gwalior Penal Code, corresponding to S.302, Indian Penal Code, but could not inflict adequate sentence, he referred the case to the High Court to pass a sentence of more than 14 years or life imprisonment or death sentence.

2. The accused appellants also preferred appeal against the order of conviction and sentence under S.385, for 10 years, passed by the Sessions Judge, Ujjain.

3. A Division Bench of this Court dismissed the appeal of both the accused and maintained the conviction and sentence under S.385, Gwalior Penal Code. With regard to conviction under S.292, Gwalior Penal Code the accused was sentenced to be hanged

4. I may here mention that the sentence of hanging passed by the learned Judges of the Division Bench is not in proper legal form. Section 302, Penal Code, and the corresponding S.292, Gwalior Penal Code, prescribes a sentence of death or rigorous imprisonment for life. The manner and method by which the sentence of death is to be carried is not mentioned in S.302, Penal Code. It appears to me surprising that the learned Judges have subsequently justified the use of word hanging.

5. Shortly stated the facts leading to this appeal are as follows. The deceased Baldeo s/o Jagannath aged 60 was residing alone at his house in Bad nager. His wife Mulibai had gone to her brother Jainarayan's house at Indore. On 14-10-1947, P. W. Kanhaiya who is a neighbour of deceased Baldeo noticed that the idol in the 'mandir', installed in the house of Baldeo was decked with jewels but the door of the 'mandir' was not properly closed. The house of Baldeo was locked. There was a mysterious silence. P.W. Kanhaiya got inquisitive and suspicious so he enquired from Murli Manohar whether Baldeo Pujari had gone out of his house Inquiry was made from one Kumbhar who used to look after the 'mandir' in the absence of Baldeo but no satisfactory clue could be found about the whereabouts of Baldeo.

Next day, that is, on 15-10-1947, Murli Manohar sent a wire to Jainarayan, brother-in-law of deceased Baldeo at Indore. Mulibai w/o Baldeo and Jai narayan returned to Badnagar from Indore and saw that the doors of Baldeo's house were locked from outside. The locks were forced open by 'luhar' Motilal. On entering inside the house Mulibai, Jainarayan and others found the dead body of Baldeo lying in a room where fuel was stored. They found injuries on the corpse and the safe was rifled. There was an incised wound in front of the neck 1" x 1/2". Trachea was cut. There was injury below the nipple left side. There was punctured wound 2" x 2" x 1/3" puncturing the spleen.

6. On 15-10-1947 at 10 p.m. Jainarayan lodged a report at the Police Station, Badnagar. Mulibai gave a list Ex. P/12 of stolen ornaments on 16-10-1947. Another list Ex. P/12 of ornaments, pledged with Baldeo, was also given. On 19-10-1947, at about 8-30 a.m. accused Hemraj called P.W.4 Ramgopal to his house and the prosecution alleged that he told him that himself and accused Fakirchand had murdered Baldeo and that they had divided the properties half and half. Accused Hemraj suggested to Ramgopal to give away his share of stolen property to Sub-Inspector Dhande and save him from the consequences of the crime.

On hearing this sensational news from accused Hemarj, Ramgopal became intensly nervous and spoiled his clothes. He went away to change his clothes and in the meantime informed P.W.8 Rameshwar of everything that had transpired between him and accused Hemraj. P.W.8 Rameshwar went to the Police Station Badnagar and lodged the first information report on 19-10-1947.

7. The accused H