Judgment

KHANNA, J. :- Rahim Beg (22) and Mahadeo (30) were convicted by Additional Sessions Judge, Rai Bareli under Sections 302, 376 and 404 Indian Penal Code and each of them was sentenced to death on the first count rigorous imprisonment for a period of 10 years on the second count and rigorous imprisonment for a period of one year on the third count. The conviction and sentence of the two accused were affirmed by the Allahabad High Court. The two accused have now come up to this Court in appeal by special leave.

2. Rahim Beg accused is a bachelor. At the relevant time he was a village chowkidar and had a cycle repair shop. Mahadeo accused has got wife and children and at the relevant time ran a betel shop. The two accused resided at the time of the present occurrence in Muraika Purwa, a small hamlet at a distance of 21/2 furlongs from village Amawan in district Rai Bareli. There are about 27 houses in that hamlet. Kesh Kali deceased who was aged about 12 or 13 years at the time of the present occurrence also resided in that hamlet with her father Ramjas (P.W. 1). Kesh Kali was married about six years before the present occurrence but her Gauna ceremoney had not so far been performed. She used to put on a silver Sutya Ex. 1, a pair of silver Tarya Ex. 2 and a pair of silver bangles Ex. 3. Sometime before the present occurrence Ramjas agreed to supply milk to Ramesh Chand of Amawan Hospital. Kesh Kali in his connection used to take one seer of milk every morning in a Handia (earthern pot) Ex. 4 to the quarter of Ramesh Chand. On the morning of August 3, 1969, as usual, Kesh Kali took milk in Handia Ex. 4 to the quarter of Ramesh Chand and delivered the milk to Smt. Om Sri (P. W. 17) wife of Ramesh Chand at 7 a.m. Kesh Kali thereafter left the quarter of Ramesh Chand with the Handia to go back to her house. At about 8 or 9 a.m. on that day Parmeshwar Dayal (P. W. 6), liquor shop contractor, saw Kesh Kali pass in front of the cycle repair shop of Rahim Beg accused. Rahim Beg was at that time talking to Mahadeo, accused. Rahim Beg then told Kesh Kali to stop. He also purchased 100 grams of Andarsa (a kind of sweet) from the shop of Parmeshwar Dayal and offered it to Kesh Kali, but she declined to take the Andarsa. Kesh Kali thereafter proceeded to her house. About two or four minutes thereafter, Rahim Beg and Mahadeo went in that direction in which Kesh Kali had gone. Ghazi (P. W. 2), whose field is at a distance of about 11/2 furlongs from the village Abadi, saw Kesh Kali with Handia Ex. 4 at about 9 a.m. on that day going at a short distance from his field towards the village abadi. Ghazi also saw the two accused following Kesh Kali.

3. As Kesh Kali did not arrive at her house, her mother went at about 11 a.m. to Ramjas who was working in the field and told him that Kesh Kali had not returned after giving milk. Ramjas then stopped ploughing the field and went to Amawan Hospital. Ramjas was told that Kesh Kali had gone away after giving milk. Ramjas then started making search for Kesh Kali, Ghazi P. W. then told Ramjas that he had seen Kesh Kali going towards the village abadi and that the two accused were following her. Ramjas thereupon informed the other villagers and both he and the other villagers searched for Kesh Kali in the bushes. At about 4 p.m. during the course of search, Birpal came and informed Ramjas that the dead body of Kesh Kali was lying under a bush in a Bhinta. The said Bhinta is at a distance of about one furlong from the village abadi. On arrival at the Bhinta, Ramjas and his companions saw the dead body of Kesh Kali lying there. All the three silver ornaments which were on the person of Kesh Kali were found to be missing. There were black spots on her neck and blood was coming out of her vagina. A portion of Kesh Kali s dhoti was stuffed into her mouth. All the buttons of the front side of her blouse were open. Ramjas then went on a cycle to police station Maharajganj at a distance of seven miles from the