S. K. Phaujdar, J. - (1.) THESE two appeals were heard together as they are directed against the same judgment recorded on 28.8.79 by the IIlrd Additional District and Sessions Judge, Jaunpur, in S.T. No. 299 of 1977. The appellants were found guilty under Section 302/34, I.P.C. and were convicted therefor and sentenced to imprisonment for life. Both of them were further convicted under Section 201, I.P.C. and each was sentenced to R.I. for a period for five years. The appellant. Ram Pher, has further found guilty and convicted for the offence under Section 366, I.P.C. and was sentenced to R.I. for seven years. All the sentences were to run concurrently. Upon appeal, the appellants were granted bail.
(2.) AT the trial, the appellants were tried along with two other persons, namely, Kashi Ram and Ram Yash, who were acquitted by the trial court. The charges framed at the trial court indicated the appellant Ram Pher had in the night intervening 23rd and 24th July, 1977 at about 11 p.m. kidnapped one Usha Devi from the lawful guardianship of her father in village Banbeerpur, P.S. Badshahpur, District Jaunpur in order that she may be seduced to illicit intercourse. The further charge implicated all the four accused persons at the trial on an allegation that in the night intervening 25th and 26th July, 1977, they in furtherance of their common intention committed murder of Usha Devi and had caused the evidence of offence of murder to disappear by throwing the dead- body into a ditch. As per the prosecution story, Usha Devi was a girl aged about 16 and was married, her gauna (second marriage) was yet to be performed. On the night between 23rd and 24th July, 1977, the inmates of her house in the village Banbeerpur found her absent at about 11 p.m. At first they thought that she had gone out to attend the call of nature but when she did not return, they made a search for her. In the morning of 24th July, 1977, Ayodhya Prasad Pandey of that village informed the uncle of Usha Devi (Prasidha Narain) that he had seen Ram Pher and Ram Yash of Khomaipur taking away Usha on a cycle. Ayodhya Prasad had also disclosed that he had asked Ram Pher as to where were they going and he had answered that he was going for treatment to Badshahpur. The search was on for several days and only in the morning of 28th July, 1977, the dead-body of Usha was found floating in a ditch. Prasidh Narain Misra, thereafter, lodged a report at the police station on 28.7.1977. The police took up investigation, and took out the dead-body from the ditch filled with water and sent it for postmortem examination. The accused persons were arrested. It is the further case of the prosecution that accused Munshi, after his arrest, made some statement to the police leading to the recovery of certain ornaments belonging to Usha and at his pointing out the police had also recovered from beneath the water in the aforesaid ditch wearing apparels and the other belongings of the deceased, Usha. It is also alleged that Munshi had made a judicial confession. The prosecution had examined 12 witnesses to prove its case. The defence did not examine any witness, but from the trend of the cross- examination and from the answers given by the two appellants in their statements under Section 313, Cr.P.C., it appears that they asserted that it was a case of false implication. Munshi also asserted that the alleged confession was coerced from him.
(3.) THE learned trial court had acquitted the co-accused Kashi Ram and Ram Yash on the ground that they were of the family of the accused, Ram Pher; no specific part had been alleged against them. Kashi Ram was elder brother of Ram Pher and an old man. Ram Yash was a young lad and a nephew of Ram Pher and the trial court was of the view that in the circumstances of the case. Ram Pher would not have taken assistance in this crime from his own family members and he gave benefit of doubt to Kashi Ram and Ram Yash. The evidence against the appellants may be grouped in three categories. Firstly, there is allegation of 'last seen,' the girl having been seen in the company of the accused persons. Secondly, there is the recovery at the instance of Munshi and, thirdly, there is the judicial confession made by Munshi. The learned defence counsel submitted that neither of these circumstances have been proved by cogent and reliable evidence and the circumstances, sought to be proved by the prosecution did not form chain of evidence of such nature so as to point only to the guilt of the accused, incompatible with the theory of their innocence. It was further argued that when in a case some evidence was adduced against all and two were given benefit of doubt, the same benefit should have been available to the other accused persons as well. The learned defence counsel pointed out to the unexplained delay in lodging the F.I.R., to the material omissions in the vital documents like panchnama, as also to the material irregularities in recording the judicial confession. He also doubted the acceptability of the theory of recovery at the instance of Munshi.;