Judgment

BHAGWATI, J.: The accused was charged that he on or about 25-7-1951 that village Bhiharihar committed murder of Behra and committed an offence punishable under S. 302, Penal Code and that on the same day and the same place he committed robbery of the property of Behra and as such voluntarily caused hurt to the same Behra and committed an offence punishable under S. 394, Penal Code. The learned Sessions Judge tried the accuused with the aid of assessors for the offence under S. 302 and with the aid of jury of offence under S. 394. The jury returned a unanimous verdict of guilty in regard to the offence under S. 394 but the assessors by a majority opined that the accused was guilty of an offence under S. 323 and not under S. 302 with which he had been charged.

The learned Judge accepted the verdict of the jury and also agreed with the majority opinion of the assessors and convicted the accused of the offences under S. 394 and S. 323 but acquitted him of the offence under S. 302. The accused appealed against this conviction of his by the learned Sessions Judge and the Government appealed against his acquittal under S. 302. The High Court confirmed the conviction of the accused under S. 394 but set aside the conviction under S. 323, held that the accused was guilty of the offence under S. 302 and sentenced him to death. This appeal was thereupon filed by the accused as of right under the Constitution against that conviction of his by the High Court under S. 302 and the sentence of death passed upon him.

2. The case of the prosecution was that the accused was a friend of Behra who was of a licentious character and on 25-7-1951 the accused took Behra towards Bidhari under the inducement that there was a woman available at Bidhari. The accused then took the deceased towards Bidhari and from there they went towards the river. In the afternoon of 26-7-1951 the dead body of Behra was discovered lying in a lonely spot on the way to the river and information of the same was given to the police. The police then entered upon the investigation. The body of Behra was identified on 27-7-1951 and a postmortem was held on the body by Dr. Dube.

The accused was arrested the very same day and he took the police to a goldsmith by name Bhagwandas from whom a gold bar melted out of a half gold mohur sold by the accused to him was recovered. He also took the police to one Bishandas Tularam with whom two silver churas had been pledged by him and these silver churas were also recovered from Bishandas. This half gold mohur and the two silver churas were identified by certain witnesses as having been habitually worn by the deceased. A final postmortem report was made by Dr. Dube on 3-8-1951 and the accused was challenged before the Magistrate who committed him to the Sessions.

3. The evidence which was led by the prosecution consisted of two witnesses P. W. 1 Bhairon and P. W. 2 Latoo who saw the accused and the deceased together at about 2 P. M. on 25-7-1951, P. W. 13 Bhagwandas the goldsmith who produced the gold bar into which the half gold mohur had been melted having been sold by the accused to him the next morning after the alleged murder of Behra. P. W. 13 (sic) Bishandas Tularam who was approached by the accused on the evening of the day of the alleged murder at about sunset and who on being asked to purchase the half gold mohur declined to do so as he had no money at the time but accepted a pledge of the silver churas and P. W. 4 Iswariprasad, P. W. 6 Buddhu, P. W. 9 Mathuraprasad and P. W. 16 Chiddi who deposed that the half gold mohur and the silver churas were habitually worn by the deceased and three of whom P. W. 4, P. W. 9 and P. W. 16 actually identified the silver churas produced by Bishandas Tularam as those which used to be worn by the deceased.

Relying upon this evidence the learned Sessions Judge came to the conclusion that the accused and the deceased were seen together on 25-7-1951, that the accused was responsible for causing h