J214udgement

IMAM, J. - The appellant was sentenced to transportation for life by the Temporary Sessions Judge of Aligarh for the murder of Chimmanlal aged about six years. He appealed against his conviction to the Allahabad High Court and his appeal was heard by Desai J. and Mehrotra, J. There was a difference of opinion between them, Desai J. being of the opinion that the appellant was guilty of the offence of murder while Mehrotra J. was of the opinion that he was not guilty. The case was then placed before a third Judge of the High Court and it was heard by Agarwala J. who agreed with Desai J. Accordingly, the appellant s conviction for murder was upheld and his appeal was dismissed. The High Court certified the case as a fit one for appeal to this Court.

2. It is said that Chimmanlal was murdered on or about 2-12-1950. On that date Chimmanlal had left his father s shop at about 5 p.m. to go home which was a short distance away. He, however, never reached home. His father Shanker Lal came home at about 6 p.m. and did not find him. He searched for the boy. He sought information from the appellant but got a reply the significance of which will be considered later. Next day, at about 9 a.m., he lodged a report at the Police Station, Hathras about the disappearance of his son. He mentioned no one as a suspect responsible for the disappearance of his son. On 9-12-1950 one Gian Chand resident of village Jogia, which is adjacent to the village of the appel1ant, had gone to his well to fix a Persian wheel and he found that some foul smell was coming out of the well. Having looked into the well he found a corpse floating in it. Lohrey Chowkidar was informed by him and an information was sent to the Police Station. A Police Officer came and took out the dead body. On that body there was only one black pyjama. Shanker Lal s father Puran Mal was called there and he identified the body as that of Chimmanlal. The body was highly decomposed. No injuries were found on it and the doctor could not give any opinion on the cause, of death due to decomposition. On 11-12-1950, the appellant was arrested. When he was being taken to the Police Station he informed the police that he would produce the clothes of the dead Chimmanlal. The appellant took the police to the top of a brick-kiln, removed the earth from the hole and took out the clothes. These clothes have been identified, as belonging to the deceased Chimmanlal.

3. Several circumstances were relied on by Agarwala J. in coming to the conclusion that the appellant was guilty of murder. In the second place, the appellant had held out a threat against the deceased s father Shanker Lal to the effect that he would take revenge against him. In the third place, the appellant had access to the deceased and was in a position to induce him to go along with him and thus the appellant had the opportunity to kill him. In the fourth place, the clothes of the deceased were handed over by the appellant to the police and in the fifth place, the appellant falsely denied several relevant facts which had been conclusively established. Agarwala J, however, thought that none of them singly was sufficient to establish that the appellant was guilty of the murder of the deceased but the cumulative effect of all of them led to the irresistible conclusion that it was the appellant who had removed the clothes of the deceased, was privy to his murder and hid the clothes at the top of the brick- kiln.

4. Before we consider the submission made by Mr. Mathur, on behalf of the appellant, that the circumstances were not sufficient to establish that the appellant had murdered the deceased, it is necessary to point out that on behalf of the State a preliminary objection was made that the appeal was not maintainable as the High Court had granted a defective certificate. Reference was made to certain decisions of this Court, where it was held, in the circumstances of those cases that the certificates granted were defective. In