JAIN, J - (1.) THIS appeal has been preferred against the judgment of the Sessions Judge, Partabgarh dated September 13, 1972, by which appellant Jujhar Singh has been convicted under sec. 201 I. P. C. for which he has been sentenced to rigorous imprisonment for five years and to a fine of Rs. 500/ -. In default of payment of fine, he was further directed to undergo rigorous imprisonment for six months.
(2.) I have heard arguments and examined the record. The story of the prosecution is that Akram Khan, who was resident of village Nanana of District Pratabgarh, appeared on 11. 10. 71 in the court of the Munsif Magistrate, Partabgarh where he was one of the accused alongwith a few others in case No. 21/70, which was instituted by Baldeo Singh. It appears that in another criminal case No. 11/70 Baldeo and the present accused Nawal Singh, Jujhar Singh and Madan Singh were also the accused persons. It is alleged that from Pratabgarh deceased Akram Khan reached at 7. 30 p. m. the bus stand of Kuni where he met Nawal Singh PW/4 and Govind Singh PW/3. From there Akram Khan started for his village but never reached the village. At last on 14. 10. 71 his brother Karam Khan Presented a written report Ex. P. 113 to the police station, Partabgarh that when his full and elder brother Shri Akram Khan left Kuni for Nanana then three gun fires were heard in the field of Shri Bhanwar Singhji which were heard by Bheruji Gayari of Kuni and he also heard the cries 'oh, I am killed'. Upon this, they made a search in the nearby field and wells but he was no where to be found. Hakmi Chand Bambji and Bhawani Singhji Bapu etc. also went in search and last evening they saw some blood lying in the jawar field of Bhanwar Singhji of Kuni on the boundary of Kuni. He believed that his brother Akram Khan has been murdered by some body. The police registered a case under sec. 302 I. P. C. and launched investigation. The informer Karam Khan brother of the deceased and three other accused persons were arrested. On 1. 11. 71 the accused Jujhar Singh gave information Ex. P. 50 which was recorded thus - "to me the Additional S. P. Pratabgarh Shri Jujh3r Singh S/o Man Singh Rajput resident of Kanthar at present in the custody of the police voluntarily gave the information that he along with his co-participants accused Madan Singh, Nawal Singh and Karam Khan murdered Akram Khan resident of village Nanana in the jowar field of Bhanwar Singh Rajput resident of Kuni and lifted the dead-body of Akram Khan from the spot. They carried deceased Akram Khan Pathan resident of Nanana through the fields of Shri Lakshman Singh Rajput resident of Kuni Shri Kishan Hajuri resident of Nanana, Shri Mehtab Singh Rajput resident of Nanana and brought it to the river Sevana where they tied a stone with a rope to the dead body and concealed it therein. Before going, on the way, I took with me the bag of deceased Akram Khan which contained green lemons, a frame for preparing drops and white turben of 'malamal'. I tied a stone at a corner of the turban and concealed it in the mud in the water near the Jamun tree on the northern bank of the river Sevana. I know all those places, can come and point to them. " This information was given at 8-15 a. m. on 1-11-71 similar information in respect of the dead body was given by accused Nawal Singh also. It is Ex. P. 51 in which it was further disclosed that "on the way 'buldog BIDIES' were smoked and extinguished and thrown in the field of Mehtab Singh Rajput. I know all that place, can come and point to the same. " The time of this information is 9. 10 a. m. Accused Karam Khan also gave similar information which is Ex. P. 53. In this information he further disclosed : "the stick which was tied to the dead body was concealed in the mud of the northern bank of river of Sevana. One small knife with a brass handle was also found in the pocket of the waistcoat of Akram Khan, with which the abdomen of the dead body was incised and which was thrown some where in the water. I know all that place, can come and point to the same. " This information was written at 9. 20 a. m. Accused Karam Khan gave one more information Ex. P. 54 which was written at 5. 30 p. m. and relates to a gun. The Investigation Officer then formed four parties : (1) Accused Madan Singh ; In charge party - Sangram Singh S. I. Constable - Durga Shanker. Motbirs - Narain Singh and Amrit Ram. (2) Accused Jujhar Singh : In charge party - Laxmi Shanker A. S. I. Constable - Sohan Lal. Motbirs - Bheru Singh and Radha Kishan. (3) Accused Nawal Singh : In charge party - Murad Khan Head Constable. Constable - Ghisa Lal. Motbirs - Rama, Nawal Singh S/o Nahar Singh Rajput. (4) Accused Karam Khan : In charge party - Surendra Singh Head Constable. Constable - Nanugiri. Motbirs - Mangu and Abdul Hamid. The parties left Kuni; first party at 10. 25, second party at 10. 45; third party at 11. 15 and fourth party at J 1. 50 a. m. respectively.
(3.) FROM Ex. P. 14 it further transpires that accused Jujhar Singh pointed the place of occurrence and from there the entire way through which the dead body was taken to river Sevna and he disclosed that they went through the fields of Lakshman Singh, Mehtab Singh and Akram Khan and reached the bank of river Sevna where he pointed by his hand the place where the dead body of Akram Khan was lying concealed tied with a stone. Similar memos of pointing are, Ex. P. 22 of Karam Khan, Ex. P. 33 of Nawal Singh and Ex. P. 39 of Madan Singh, which show that all the four accused persons had pointed to the place of occurrence, the way and that part of the river where the dead body was concealed. But the investigation officer Virendra Bhartaria PW 36 his deposed that he started at 10. 30 a. m. , and reached river Sevna and at 10 35 a. m. Before he reached, the party of accused Madan Singh had already reached river Sevna and accused Madan Singh had pointed to that place where the dead body was concealed. The remaining parties reached the river thereafter. From the report under section 174 Cr. P. C. (Ex. P. 3) it appears that in consequence of the pointing made by accused Karam Khan, Jujhar Singh, Nawal Singh and Madan Singh and in the presence of motbirs, Virendra Bhartaria reached the middle of river Sevna where there is an anicut in the boundary of Kanthar in the middle of the river near the big black boulders towards the East, in front of a palm-tree and than the accused pointed that the dead body of Akram Khan was thrown in the water with a stone tied to it with a rope and a stone was also placed thereupon. Diver Chand Khan took out a rib bone from the middle of the river and shouted that the dead body was lying under the stone. Thereafter, the other divers went near Chand Khan and with the help of each other took out a human skeleton. On the dead body there was wrapped round its neck a shirt of white colour which had a knot in a long rope. The rope was tied in the right hand then in the right thigh. The rope was of the root of Khakra with several knots. There was a loop in that rope in its middle meant for tying something. On the left and right arms, there was the waistcoat of sky blue colour with a white lining. The dead body was also wearing a white 'salwar' on the private parts and on the feet. The pieces of bones which were found near the place where the dead body was discovered, were also collected. Amir Khan son of Akram Khan saw the 'salwar' waistcoat, and the skeleton and identified the dead body to be that of his father Akram Khan. Amir Khan was also shown a pair of spectacles wrapped in a black cloth placed in a black iron case, having white glass and brass frame, which was taken out of the water from near the dead body. Amir Khan said that the spectacles and the case belonged to his father. The discovery of the dead body took place at about 1 p. m. on 1-11-71. Dr. G. N. Ray examined the dead body and stated that the dead body was a skeleton which had no skin on the left leg. The entire skin had saponified. There was a circular tear 3/4" passting into chest cavity between the left scapula and the spine. Similarly there was found another circular tear of 1" in the chest over the 8th right rib. There was another torn performation of 1/2"x 1" in the left calf. All these wounds were ante-mortem. The skull was found fractured. 8th rib was also found fractured. The distal ends of the fingers of hinds and feet were missing. All the teeth except eight were missing. All the joints were broken. Right arm and hand were attached to the spine. A rope was tied round the dead body. At the end of the rope, a big stone was tied. The opinion of the medical officer was that death occurred due to the injuries of the chest and the head with gun shots or with some blunt weapon. ;