Judgement

SHELAT, J.:- Appellant Rahman and his wife Zaibun were tried by the Sessions Judge, Gorakhpur, on charges among others of murdering by strangulation Jasoda the three year old daughter of P. W. 1, Bhagwati, and of stealing twelve silver chharhas from her person. The Sessions Judge convicted both of them under Sections 302/34, 369, 379 and 201 of the Penal Code and sentenced the appellant to death and his wife to life imprisonment in addition to various other terms of imprisonment. On an appeal filed by them, the High Court of Allahabad acquitted Zaibun, but confirmed the conviction and sentence passed against the appellant. This appeal, founded upon special leave obtained by the appellant, is against that judgment and order of the High Court.

2. Bhagwati and the appellant lived in the village Semra Khurd with their respective families not far from each other. The prosecution case was that on November 26, 1967 Bhagwati started for Madanpur, a village nearby at about 3 p.m. to purchase medicine for his ailing wife. At that time he noticed his daughter Jasoda playing outside the appellant s house with Sugheri, the daughter of Zaibun by her previous husband. On his return, Bhagwati found Jasoda missing and the members of his family searching for her. He joined them in that search. P. W. 7, Dhansiria, a neighbour, came to him in the meantime and informed him that she had seen the appellant and Zaibun lifting the girl and carrying her into their house that afternoon. On that information, Bhagwati sought out the appellant and his wife, but both of whom replied that they did not know the girl s whereabouts. Such a reply aroused suspicion in Bhagwati s mind against the appellant and his wife. He, therefore, met some of the villagers at the house of the Sarpanch Ram Bali where they decided to search the houses of every body starting, however, with the house of the appellant. By that time it had become dark and the sarpanch, accompanied by Bhagwati and some of the other witnesses, came with torches to the appellant s house for the search. The appellant was said to be at that time just outside his door and upon Bhagwati and his companions saying that they wanted to search his house he called out to Zaibun, who was inside, that those persons had come to search their house and that she should permit them to do so. This was according to the prosecution, a warning to the wife to put her on guard. Bhagwati, the sarpanch and four or five others went inside the house, while others stood outside where the appellant was.

3. By this time a crowd numbering about 100 or so had collected outside the appellant s house. Zaibun at that time was taking her meals, but on the sarpanch and the others going inside, she got up but stood so close to the wall behind her that the sarpanch and his companions suspected that she was trying to hide something. They, therefore, moved her away and on their doing so found basket hanging on an iron peg. On removing the basket they found the dead body of Jasoda tied in a bundle, which was hung with a string on that peg. The silver chharhas which the girl had on her person that afternoon were missing. The sarpanch and his companions brought the dead body of the girl and Zaibun outside. In the meantime, the appellant had slipped away and could not be found in spite of a search made for him. They all then went to the house of Ram Swarup, the Sabhapati of the village, where on being interrogated, Zaibun made a statement which the Sessions Judge treated as an extra judicial confession. In that statement Zaibun was said to have admitted that while Jasoda was playing with her daughter outside her house, she and the appellant carried her inside. The appellant then strangulated the child and when he was so doing, she i.e., Zaibun, helped him by holding the girl s legs. She further stated that after killing the girl, the appellant took off the silver chharhas and handed them over to her, but a little later he took them away fr