SHYAM SUNDER BYAS, J. - (1.) BY his judgment dated April 30, 1980, the learned Additional Sessions Judge, Bhilwara convicted and sentenced the accused appellant and his associate accused Fakir Mohammed as under: S. No. Name of accused Offence Under Section Sentence awarded (1) Fakir Mohammed 302, IPC Imprisonment for life; 364, IPC Ten years' rigorous imprisonment with a fine of Rs. 200/ -, in default, four months rigorous imprisonment; (2) Rahimatullah 302/34, IPC Imprisonment for life; 364, IPC Ten years' rigorous imrisonment with fine of Rs. 200/ -, in default, four months rigorous imprisonment. Accused Rahimatullah has come -up in appeal and challenged his conviction.
(2.) SUCCINCTLY stated, the prosecution case is set -up during trial, is that the appellant Rahimatullah and the co -accused Fakir Mohammed are first cousins. The deceased Surya Prakash, aged about 22 years, was the elder brother of PW 18 Chandra Prakash. All of them reside (d) in the town of Jahajpur (district Bhilwara). The deceased was a photographer by profession and operated ' Laxmi Photo Studio' for that purpose in the market of the town. At about 2.00 p.m. on March 6,1979, the two accused Fakir Mohammed and Rahimatullah went together to the deceased's studio and requested him to take their photographs. The deceased asked them to wait. After sometime, accused Fakir Mohammed asked the deceased to go with them to the fort and to take their photographs there. The deceased accepted the request and accompanied them with his camera (Article 1) and Flash -gun (Article 3). He was then wearing wrist watch (Article 4). Accused Fakir Mohammed had a bag containing one nylon cord along with a Chaddar (bed -sheet). In the way, the party met some persons, who also requested the deceased to take their photos. The deceased told them that he were take their photographs on return. The party reached the Sheetlamata temple situate on the fort. There the deceased took two photographs of the appellant and one photograph of the accused Fakir Mohammed. While the deceased was taking the third photo of the appellant, accused Fakir Mohammed suddenly spread his Chaddar on his (deceased) head. The appellant took out the nylon cord (here in after to be referred to as 'the cord) from the bag and tied the hands and feet of the deceased. Accused Fakir Mohammed felled the deceased down and sat on his chest. He thereafter pressed his threat and continued to press it till the deceased breathed his last. The two culprits collected the camera, flash -gun and the wrist watch of the deceased and then placed the in a corner. After sun -set, when it became dark, the two miscreants took the victim's dead body and placed it in a ditch near the fort. The cord with which the hands and feet of the deceased were tied, was removed and was taken away by the accused Fakir Mohammed. The camera, flash -gun and the wrist watch of the victim were also taken away by accused Fakir Mohammed. The two accused thereafter disappeared. At about 9.30 a.m. on March 7, 1978 Police constable Mohan Lal (PW 7) noticed the victim's dead body lying in the ditch. He presented written report Ex. P 10 in this connec ion before the Station House Officer, Police Station, Jahajpur. The police registered a case and proceeded with investigation. The S.H.O Shyam Sunder (PW 24) arrived on the spot where the victim's dead body was lying and prepared the inquest report Ex. P 11. He also prepared the site plan Ex.P II. He also found nylon cord (Article 9) near the Sheetlamata's temple. It was seized and sealed. The victim's clothes were also seized and sealed. The medico -legal autopsy of the victim dead body was conducted on March 7, 1979 by PW 21 Dr. Ram Gopal the then Medical Officer Incharge, Government Dispensary, Jahajpur. The doctor noticed the following ante -mortem injuries on the victim's dead body: External - - (1) One abrasion of irregular margin 4 x 1/2 c.m. on lateral side of left lower leg 4' above left lateral malleolous; (2) Six bruises of 1 to 1.5 c.m. long, thin, cresentric, irregularly placed on right side of neck and three such bruises on left side of neck; (3) Two linear bruises of 1.5 c.m. seen on both side of nose and two on the forehead and one on each cheek; (4) One ligature mark of 6 x 1/4 c.m. on dorsum of left wrist and two ligature marks of 5 x 1/4 c.m. around upper dorsum of right hand; (5) Two ligature marks of 7 x 1/4 c.m. around lateral side of right lower leg one inch apart and three inches above right lateral malleolous; (6) One ligature mark of 7.5 x 1/4 cm. around lateral side of left lower leg. In the opinion of Dr. Ram Gopal, the cause of death was asphyxia due to throttling. The post -mortem report prepared by him is Ex. P 23. Accused Fakir Mohammed was arrested on March 10, 1979 vide arrest memo Ex. P 21 while accused Rahimatullah was arrested on March 11,1979 vide arrest memo Ex. P 3. In consequence of the information furnished by accused Fakir Mohammed whilst under police custody, camera (Article 2), flash -gun (Article 3) and wrist watch (Article 4) were recovered from different places. In consequence of the information furnished by accused Rahimatullah, nylon cord (Article 4) was recovered. Both the accused were lodged in judicial custody. On March 17, 1979 accused Rahimatullah made a confession before the Judicial Magistrate Mr. C.L. Bajaj (PW 25). The confession was reduced into writing in Ex. P 32. On March 19, 1979, accused Fakir Mohammed made a confession before the Judicial Magistrate Mr. Parupal (PW 23). The confession was reduced into writing in Ex. P 28. In the test identification, the camera, flash -gun and the wrist watch were correctly identified to be of the victim by his younger brother Chandra Prakash (PW 18). When the camera was re -opened, it contained reel (Article 5) containing some negatives. The postive of the negatives are Ex.P 6, Ex. P 7 and Ex. P 8. These photos are of the two accused Fakir Mohammed and Rahimatullah. On the completion of investigation, the police submitted a challan against accused Rahimatullah and Fakir Mohammed in the Court of Munsif and Judicial Magistrate, Jahajpur, who, in his turn, committed the case for trial. The case came for trial before the learned Additional Sessions Judge, Bhilwara, who framed charges under Sections 302, 302/34 and 304, IPC against both the accused person, to which they pleaded not guilty and demanded the trial, In their statement recorded under Section 313, Cr.PC they retracted their judicial confession and stated that they were extracted from them by exercising physical torture. In support of its case, the prosecution examined 27 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of the trial, the learned Additional Sessions Judge found the charges duly proved against the accused persons. They were consequently convicted and sentenced as mentioned at the very out -set. Aggrieved against his conviction, accused Rahimutallah has taken this appeal. The other accused Fakir Mohammed filed no appeal and his conviction is, thus final for our purpose. We have heard Mr. M.C. Bhandari learned Counsel for the appellant and Mr. Niyazuddin Khan the learned Public Prosecutor. We have also gone through the case file carefully.
(3.) ADMITTEDLY , there is no ocular witness of the incident. The prosecution case depends entirely on the circumstantial evidence. The circumstantial evidence aduced by the prosecution against the appellant may, for ease and convenience, be classified as under: (1) Judicial confession Ex. P 32 of the appellant Rahimatullah; (2) Judicial confession Ex. P 28 of the co -accused Fakir Mohammed; (3) Recovery of nylon cord (Article 1) at the instance of the appellant; (4) Recovery of camera (Article 2), flash -gun (Article 3) and wrist watch (Article 4) at the instance of the co -accused Fakir Mohammed; (5) Recovery of nylon cord (Article 9) lying near about the site of occurrence. An attempt was made that the nylon cord (Article 1) and nylon cord (Article 9) are the pieces of one and the same cord; and (6) the deceased and the accused persons were seen going towards the fort. ;