Mahesh Narain Shukla, J. - (1.)These three connected appeals are directed against the judgment of the Sessions Judge, Budaun dated 26 -9 -1970 convicting the appellants, Nathoo and Saddiq u/S. 302 read with S. 34 IPC and sentencing each of them to death and further convicting the appellant Smt. Batoolan u/S. 302 read with S. 109 IPC and sentencing her to imprisonment for life. There is also before us the usual reference made u/S. 374 CrPC by the learned Sessions Judge for the confirmation of the sentence of death passed against the appellants, Nathoo and Saddiq. The prosecution case is that Saddiq accused popularly known as Dr. Saddiq (for he sold medicines, though was not really a doctor in the literal sense) had a shop in village Khera Newada but two days before the incident he along with Nathoo opened a shop at the chaupal of the Pradhan in village Lakhanpur. On 8 -2 -1970 at about 8 a.m. Nathoo met Adesh Kumar (PW 3) and invited him to come to Lakhanpur for chewing sugarcane. He also asked him to bring the deceased Chhakkoo with him. Accordingly at about 11 a.m. Adesh Kumar went to the house of Chhakkoo and not finding him there he went to the private bus stand, near which was situate the shop of the father of the deceased, Chhakkoo. He found Chhakkoo at the stand. He asked him to accompany him to Lakhanpur to enjoy sugarcane and Chhakkoo acceded to the proposal. The both went to Lakhanpur on foot. When they were only about a furlong from the village Abadi, they met accused Saddiq near the tube well and then they all went to the chaupal of the Pradhan of village Lakhanpur. They were given sugarcane which they chewed and they stayed there till about 4:40 p.m. Before that there was some talk between the two accused Saddiq and Nathoo and then Saddiq asked Nathoo to bring the boys by the kachcha route at a particular place and himself promised to meet them there. Accordingly Nathoo and the two boys went by the kachcha route. At the railway crossing which is about a mile from the city, they met Saddiq who was already there. Saddiq told Nathoo that the boys might be hungry so they may be given something to eat. Hence, they were taken to the new house of the accused Nathoo in mohalla Nai Sarai and were made to sit inside the room. In the house appellant Smt. Batoolan, wife of Nathoo and her four children were also present. Nathoo tried to induce Chhakkoo by telling him that he would take him to big cities but the latter did not agree and insisted that he should be sent back to his house. Adesh Kumar also made the same demand. At this they were reprimanded by the accused and asked to accompany them. Thereupon Chhakkoo started weeping and uttered a threat that he would make a complaint about it to his father. Saddiq then said that the boy should not be allowed to go, otherwise they would be implicated in some case. So both the accused Saddiq and Nathoo pounced upon Chhakkoo and closed his mouth. On demand by her husband Smt. Batoolan gave a rope. They made a ring of the rope and fastened round the neck of Chhakkoo. Both Nathoo and Saddiq pulled the rope to their sides in opposite directions and Chhakkoo died as a result of strangulation. The door of the room had been closed by the accused Smt. Batoolan and she was standing there as a guard. Afterwards the dead body of the deceased was kept on the paitana side of the cot and was covered with clothes. Adesh Kumar was trembling all this time on account of fear. After the murder of Chhakkoo, Saddiq asked Nathoo to kill Adesh Kumar also lest they might be implicated. However, on persistent entreaties and assurance that he would not disclose the offence to anyone Adesh Kumar was spared. At about 12 in the night he was released and asked to go home at once without saying anything to his parents. His house was about two or three furlongs from the house of accused Nathoo. Meanwhile when Chhakkoo did not return by evening a search was made by his mother. Unfortunately his father was out on that day. Hence, his mother called one Raghubir Prasad (PW 1) a neighbour of the deceased and at her instance he wrote out a report (Ex Ka 1) at 10 p.m. and lodged the same at police station Kotwali at 10:55 p.m. wherein only the disappearance of Chhakkoo was mentioned.
(2.)S.I. Gajraj Singh (PW 10) accompanied by Hira Lal, Raghubir Prasad and Hari Shanker proceeded towards mohalla Nai Sarai and had reached only upto the crossing known as Razi Ghowk when they suddenly met Adesh Kumar coming from the other side. It was 12 -30 in the night. On interrogation the details of the incident leading to the murder of Chhakkoo and placing of the dead body inside the house of Nathoo were disclosed by Adesh Kumar. The party, therefore, proceeded at once to the house of Nathoo, in mohalla Nai Sarai. On the pointing out of Adesh Kumar the dead body of Chhakkoo was found on the cot, covered with clothes. All the accused were taken into custody. All the three accused and the children of Nathoo accused were brought to the police station at 7 -55 a.m. and an entry was made in the general diary to that effect vide Ex. Ka 4. In this entry the details of the incident as well as the motive for the commission of the crime were noted. The Investigating Officer interrogated the accused in detail at about 11 a.m. Thereafter they were sent to Jail. He also happened to meet Nathoo Pradhan of village Lakhanpur in the court compound. He interrogated him and showed him the photo of the deceased Chhakkoo. He also applied to the SDM of Budaun to record the statement of the accused u/S. 164 CrPC. The statements of Nathoo and Saddiq accused were recorded on 11 -2 -1970 while that of Smt. Batoolan was recorded on 18 -2 -1970. The statement of Adesh Kumar (PW 3) was recorded u/S. 164 CrPC on 19 -2 -1970. After completing the investigation he submitted a charge sheet against the accused on 27 -2 -1970.
(3.)The post mortem examination on the dead body of Chhakkoo was performed by Dr. A.S. Gupta (PW 5), Addl. Civil Surgeon Budaun, on 9 -2 -1970 at 9 -30 in the morning. He found three parallel ligature marks surrounding the neck and six contusions on other parts of the body. In the opinion of the doctor the death of the victim was due to asphyxia as a result of strangulation.