JUDGMENT

Dalip Singh, J. - Karam Din appellant has been convicted by the learned Additional Sessions Judge under Section 302, I.P.C., and has been sentenced to death. He has also been sentenced to tea years' rigorous imprisonment under Section 302, I.P.C. He has appealed and the reference is also before us.

2. The evidence for the prosecution shows that on the night between the 4th and 5th March 1928, a dacoity was committed in the house of one Karam Chand at Bahadur Khera and Karam Chand was murdered during the commission of that dacoity by means of a gun and a chhavi. Five men were alleged by the prosecution to have taken part in this dacoity, one of whom Sadra is since reported to have died. Pour men were accordingly challaned by the police, namely, Umar Din, Rahmat, Karam Din and Kalu. Kalu was acquitted by the learned Additional Sessions Judge and therefore he held that there was no dacoity and Section 396, I.P.C. did not apply. He held, however, that an offence was committed under Section 392, and that by virtue of Section 34, I.P.C. all the accused concerned were guilty of murdering Karam Chand under Section 302, I.P.C. The evidence against Karam Din, accused is firstly, that of eyewitnesses P. Ws. 15, 16, 17 and 18. It has been contended by the counsel for the appellant that the statements of these witnesses themselves show that the story related by them is utterly improbable and, therefore, they should not be believed. It has also been contended that the identification parade was held under the superintendence of the investigating Sub-Inspector alone so far as the accused Karam Din was concerned and, therefore, the identifications made in that parade are not reliable. After giving due weight to the contentions urged, I am of opinion that there is no sufficient reason for disbelieving these eyewitnesses who clearly prove that Karam Din was one of the persons concerned in the robbery at the house of Karam Chand, deceased. These witnesses are further corroborated by the fact that certain property, which has been duly identified as belonging to the complainant Mehr Chand, brother of Karam Chand, was discovered on information given by Karam Din from the person of his mother, Bholi. As regards this evidence which has been let in under the provisions of Section 27, Evidence Act, counsel for the appellant has contended that the exact words used by the accused in giving this information have not been proved on the record and that therefore, on the authority of A.I.R. 1928 Lah. 308, a Division Bench ruling of this Court, the evidence is not admissible against the appellant. This point raises a matter of considerable interest and importance and I shall deal with it at length in a subsequent portion of this judgment.

3. There is also the confession of Umar Din, accused, which inculpates Karam Din, appellant, directly in the murder of Karam Chand. As regards this, it is sufficient for me to say that, while it may be taken into consideration against Karam Din, appellant, under the provisions of Section 30, Evidence Act, it would be unsafe, if not illegal, to rely on it without further corroboration in material particulars. No such corroboration is forthcoming in the present case, and counsel for the Crown has frankly admitted that as this is the sole material for holding that Karam Din, appellant, was directly concerned in the murder of Karam Chand, it is not sufficient to prove him guilty, under Section 302, I.P.C. Counsel for the Grown relied on Section 34, I.P.C. but it seems to me that the circumstances of this case preclude the application of Section 34. The story as given by Umar Din is that the deceased, Karam Chand, was brought to the shop from his house and that he escaped from Sadra and others who were holding him. Thereupon Sadra and Karam Din followed him and shortly afterwards the report of gun shots was heard. Karam Din at the time was armed with a chhavi. Soon after, Sadra and Karam Din returned and stated that the dece