Mehrotra, J.

[1] Appellant Pershadi has been convicted under Section. 302, Penal Code by the Sessions Judge of Aligarh for having committed the murder of Chimman Lal aged about six years and sentenced to transportation for life.

[2] Chimrnan Lal was the son of Shanker Lal Halwai of village Ramanpur, which is at a distance of eight furlongs from the town of Hathras. The accused is the appellant Pershadi, who was employed as a servant at the house of Shankar Lal. The prosecution case is that about a month before the murder of Chimman Lal a small iron safe containing cash kept in the Halwai shop of' Shanker Lal was stolen in the night. A report was lodged by Shanker Lal of this theft in the police station on 1-11-1950 under Section 457, I.P.C. against the appellant and one Charna. Charna was sent to jail but the appellant Pershadi was arrested, put up in the lock-up and released subsequently on furnishing security. After his release the appellant pointed out the place where the safe had been kept and Shanker Lal got back the stolen property. Finally, however, both Pershadi and Charna were convicted under Section 381, I.P.C. but they were ordered to be released on executing bonds and producing sureties to appear before a Magistrate whenever called within a period of three years.

It is alleged by the prosecution that while Pershadi was in the lock-up he told Ram Nath (P.W. 6) and Jwala Pershad (P.W. 10) that when he would come out of the jail he would take revenge on Shanker Lal. After his release from the lock-up he is alleged to have made a similar statement to Zahar Mal (P.W. 4). On 2-12-1950, after about a month of this incident, Chimman Lal, as usual, left the shop of his father at about 5 p.m. for the house which is at a distance of about one furlong from the shop. Shanker Lal on reaching his house at 6 p.m. did not find Chimman Lal there. He made a search of the boy whole night. He also went to the house of the accused but no satisfactory - answer was given by the appellant to Shanker Lal on that date. Shanker Lal, therefore, lodged a report at the police station Hathras at 9 a.m. the next day, i.e. 3-12-1950. In this report he stated that his child had disappeared and mentioned the clothes which he had been wearing at the time of leaving the shop.

Nobody is suspected in this report. On 9-12-1950, when Gian Chand, who is a resident of village Jogia adjacent to the village of the accused, went to his well where he had fixed his Persian wheel and felt some foul smell coming out of the well. He saw a corpse floating in the water. He sent for Lohrey chowkidar and showed him the corpse. Then both of them went to the police station where a report was lodged by the chowkidar. Kishan Singh, Second Officer, Police Station, Hathras, went to the well and the dead body was recovered from the well. At that time there was only one black pyjama on the person of the dead body. Pooran Mal, father of Shanker Lal, was then called at the well and he identified the body to be of Chimman Lal. Inquest report was prepared by Kishan Singh and the dead body was removed to the police station, Hathras. At the police station Shanker Lal also identified the dead body to be that of his son Chimman Lal. The post mortem examination of the dead body was conducted by Sri J. L. Jagota, Medical Officer in-charge Hathras Hospital. The post mortem report shows that the fingers of the hands and toes of the feet were shrunk and there was mud present.

The sutures of the skull bones were separated, the body was highly decomposed and swollen and foul colour was coming and skin peeling off. No injuries were found on the person of Chimman Lal. In the report the doctor stated that no opinion could be given for the cause of death as the body had been highly decomposed. From the evidence of Shanker Lal, who identified the dead body, and that of the doctor it is clear that Chimman Lal died because either he was thrown into the well by somebody or he accidentally fell i