RAGHUBAR DAYAL, J.

( 1 ) BACHCHAN alias Doctor appeals against his conviction under Sections 147 and 302, read with section 149, I. P. C. He was sentenced to death for the latter offence and the learned Sessions judge has referred the case for the confirmation of the death sentence.

( 2 ) THE appellant, who was an agent for selling medicines, began to reside at the house of nainsukh in village Bakhrauli, P. S. Tathia, district Farrukhabad, from some time in the second week of June 1955. On the night between the 19th and 20th of June he, Nainsukh and Nainsukhs sons, Shiam Behari and Prem Baboo, slept on different cots outside the house and in front of it, nainsukh and the accused were found missing from their cots by Shrimati Raghbansi, wife of nainsukh, when she woke up and went out after midnight to look after the cattle. She did not suspect anything as her husband used to go away for days without informing her and as the accused too used to go away for days. When Nainsukh did not return in the morning search was made for him on the 20th and 21st of June. He was not found. On the morning of the 22nd of June Raghubansi learnt from certain children about the presence of a dead body lying in Gularia Har that is the tract of land known as Gularia. She went there and recognised the dead body to be that of her husband. The Chaukidars son Shyam Lal reached and was asked by her to go to the thana and lodge the report.

( 3 ) SHYAM Lal lodged the report Ext. 1 at 3. 15 p. m. at the thana, which is four miles from the place of incident. The significant statements in this report are:-" i found that there was no cloth on the dead body. One piece of cloth having stripes of catechu colour, and of check design was pressed in between the thighs. On the right scapulae there was a mark of penetrated injury. The right ear and face were cut and the front of the head appeared to be scratched. The corpse was decomposed. I asked Nainsukhs wife to go to the police station to lodge a report. Nainsukhs wife said that four days ago on the midnight of Sunday her husband woke up and went to some place, that bachchan Kahar alias Doctor, who lives in the adjoining village, and who is a stranger, was sleeping at the same place at the door, that her husband often used to go without informing Her and that she therefore did not suspect anything and that wlten she saw the corpse she learnt that he had been killed by somebody. She asked me to go to the police station and, lodge a report, and said that when the sub-inspector of police would go there, she would tell her everything. I have entrusted the corpse to the wife of nainsukh and Narain Ahir of Munna Purwa and have come to lodge a report. " it would appear from this report that Raghubansi, the wife of Nainsukh, did not desire to tell all what she probably knew about the incident to Shyam Lal and that she did not specifically mention to him that Bachchan was also not on his cot, when she had gone out during the night.

( 4 ) SUB-INSPECTOR Triloki Nath Singh investigated the case upto the 18th of October, 1955. He proceeded to the spot, prepared the inquest report and a site plan. The site plan was lost. He recorded the statement of Raghubansi on the 23rd of June and of Narain Prasad on the 3rd of july. He could not find any trace of Bachchan accused.

( 5 ) BHAGWATI Prasad Chaube took over the investigation on the 18th of October. On the 23rd of october Bachchan was brought to him under arrest by private persons. None of them has been examined in the case to establish the circumstances in which the accused was arrested. He also prepared a site plan after inspecting the spot. It is Ex. 9. He recorded the statement of Bhagwati on the 11th of December, 1955, and submitted the charge-sheet on the 16th of January against the accused and one Harnam Singh who was acquitted by the learned Sessions Judge.

( 6 ) THE accuseds confession was recorded on the 9th of February by Sri Sinpal Misra, Judicial officer, in complian

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