L.N.CHHANGANI, J. - (1.) THIS case has come before me under Section 429 of the Code of Criminal P.C. as the learned Judges who heard the appeal, differed on the question as to what view should hi taken regarding the crime committed on the basis of the recovery of 'Madlia' belonging to the deceased at the instance of the accused -appellant.
(2.) FOR a proper appreciation of the case, the material facts may be stated as follow. On December 23, 1967, Ganpat of village Reengus, made a report Ex. P/1 at the Police Outpost, Reengus, at about 10 -30 A.M. stating merely that his sister Mst. Chawli had been missing for the last eight to ten days. It was also stated that a shoe and lotta were lying outside the house where the house was locked from outside. Subsequently Ganpat made another report Ex. P/2 on the same day at about 7 P.M. In that report, Ganpat referred to the earlier report and further stated that after the first report he met Mst. Bhanwari (PW 2) daughter of Mst. Chawli, who had told him that a month before she had arrived from her husband's house to see her mother at Reengus during illness and that during that visit she had seen Sagarmal sitting in the company of her mother. In her presence, Sagarmal had told that somebody had practiced black magic on her. He would, therefore, prepare a thread to get rid of the evil influence of witchcraft Ganpat further stated that on receipt 4 of this information from Mst. Bhanwari he entertained suspicion about the complicity of Sagarmal for the murder of Mst. Chawali. He therefore, made a search and found that Mst. Chawali, after being murdered, had been placed in a ditch and that on account of rains her hands and feet had become visible. On receipt of the second report the police registered a case under Section 308 Indian Penal Code, and commenced investigation. Mst. Chawali's dead body was taken out from the ditch on December 23, 1967. Inquest report Ex. P -3 was prepared. The postmortem examination was conducted by Dr. Mohan Prakash Bhatnagar, Medical Officer, Incharge, Primary Health Centre; Reengus on December 23, 1967 who prepared postmortem report Ex. 3. P/20. According to the Doctor, the cause of death of Mst. Chawali was 'asphyai due to throttling'. The Doctor further expressed the opinion that Mst. Chawali must have been murdered within six to ten days before the postmortem examination. During investigation, accused Sagarmal was arrested on December 25, 1967. In the information given by the accused a gold madalia was recovered from beneath two 'babul' trees, standing in his 'bagechi'. The 'madliya' was identified as the property of the deceased. After investigation the police submitted charge sheet against the accused in the court of Munsiff Magistrate, Neem ka Thana, who committed the accused for trial under Section 302, Indian Penal Cede, to the Court of Additional Sessions Judge, Sikar. The trial court convicted the accused under Section 302, Indian Penal Code. The accused filed an appeal from jail. The appeal was heard by a Bench but the learned Judges, however, differed as to the offence proved against the accused. Mehta J. expressed the c pinion that the accused committed an offence of murder and, therefore, proposed dismissal of the appeal. Kansingh J. was of the view that the accused could be safely convicted for an offence under Section 411, Indian Penal Code.
(3.) I have gone through the record and heard the Deputy Government Advocate.;