Judgement

RAGHUBAR DAYAL, J. : Faddi appeals, by special leave, against the order of the High Court of Madhya Pradesh confirming his conviction and sentence of death under S. 302 I.P.C. by the Additional Sessions Judge, Morena.

2. Jaibai, widow of Budhu, began to live with Faddi a few years after the death of her husband Budhu. Faddi and Jaibai at first lived at Agra, but later on shifted to Morena. Jaibai had a son named Gulab, by Budhu, Gulab was aged 11 years and lived in village Torkheda at the house of his phupa Ramle. He was living there from Sawan, 1961.

3. Gulab s corpse was recovered from a well of village Jarah on January 21, 1963. It reached the mortuary at Morena at 15 p.m. that day. It is noted on the post-mortem report that it had been despatched from the place of occurrence at 1 p.m. Dr. Nigam, on examination, found an injury on the skull and has expressed the opinion that the boy died on account of that injury within two or three days of the post-mortem examination. He stated in Court that no water was found inside either the lungs or the abdomen or the larynx or in the middle ear. This rules out the possibility of Gulab. s dying due to drowning.

4. As a result of the investigation, the appellant and one Banwari were sent up for trail for the murder of Gulab. It is interesting to observe the course of the investigation. The police knew nothing of the offence till 9 p.m. on January 20, 1963, when the appellant himself went to the police station, Saroichhola, and lodged a first information report stating therein that on peeping into the well near the peepul tree of Hadpai on the morning of January 20, 1962, he found his son lying dead in the well. Earlier he had narrated the events leading to his observing the corpse and that narration of facts accused Ramle, Bhanta and one cyclist of the offence of murdering the boy Gulab. It was this information which took the police to the well and to the recovery of the corpse.

5. The police arrested the persons indicated to be the culprits, viz., Ramle, Bhanta and the cyclist, who was found to be Shyama, by January 26. These persons remained in the lock-up for 8 to 11 days. In the meantime, on January 26, the investigation was taken over, under the orders of the Superintendent of Police, by the Circle Inspector, Nazaf Mohd. Khan from Rajender Singh, who was the Station Officer of Police Station Saraichhola. The circle Inspector arrested Faddi on January 27. The other arrested person were got released in due course. Faddi took the Circle Inspector to the house and, after taking out a pair of shorts of Gulab, delivered it to the Circle Inspector. Ramle, Bhanta alias Dhanta and Shyamlal have been examined as prosecution witnesses Nos. 15, 4 and 5 respectively.

6. The conviction of the appellant is based on circumstantial evidence, there being no direct evidence about his actually murdering Gulab by throwing him into the well or by murdering him first and then throwing the dead body into the well. The circumstances which were accepted by the trail Court were these:

1. Faddi went to the house of Ramle at about noon on 19th January 1962 and asked Ramle to send the boy with him. Gulab was at the time in the fields. After meals, Faddi left suddenly when Shyama arrived and gave a message to Ramle from Gulab s mother that the boy be not sent with any one. Faddi caught hold of Gulab from the fields forcibly and took him away. It may be mentioned here that one Banwari who has been acquitted is also said to have been with Faddi at this time.

2. Gulab had not been seen alive subsequent to Faddi s taking him away on the afternoon of January 19. His corpse was recovered on the forenoon of January 21. Faddi had not been able to give any satisfactory explanation as to how he and Gulab parted company.

3. Faddi knew the place where Gulab s corpse lay. It was his information to the Police which led it to recover the corpse. His statement that he had noted the corpse floating on morning of January 20 was