MALKHAN Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal is directed by the appellant Malkhan against the judgment and order dated 15th of Sep ­tember, 1980 passed by Sri Y.R Singh, the then 1st Additional Sessions Judge, Budaun in Sessions Trial No. 135 of 1979. He has been convicted under Section 364, I.P.C. and 302, I.P.C.. Ten years rigorous imprisonment has been awarded under Section 364, I.P.C. and life imprisonment under Section 302, I.P.C. Both the senten ­ces have been ordered to run concurrently.

(2.) THE prosecution case was that Babu Ram (deceased) was a rickshaw puller and the accused -appellant was also doing the same job. On 9th February, 1979 the deceased went from his house as usual with his rickshaw. He did not return in the evening. Therefore, his father P.W. 1 Narain made a search for him. The rick ­shaw of the deceased was found parked in the verandah of Primary School in Mohalla No. 3 of Bilsi, but the whereabouts of the deceased were not known. His father continued his search the next day also and was told by Badri, Nausey and Nanhe that on the previous day they had seen Babu Ram with Malkhan accused - appellant; that Babu Ram was demanding his watch from the accused -appellant and some quarrel was going on between them; that they had even asked the two the cause of the quarrel but to no effect and the two had gone away quarreling. P.W. 1 Narain then went to the Police Station and lodged the report by oral narration at 8.20 p.m. A case under Section 364, I.P.C. was initially registered and P.W. 10 S.I. Gopal Das started the investigation. On llth February, 1979 the Investigating Officer was informed by an informer that the accused -appellant could be found at the Idgah between Bilsi and Agoli. He went there with the witnesses at about 6 or 6.30 a.m. and arrested him. At his instance, he recovered the wrist watch of the deceased from P.W 5 Chhuttan with whom he (accused -appellant) had pawned the same. The dead body of the deceased had also been received at his pointing in the jungle of Sirasaul. A muffler had been found tied around the neck of the deceased. After completion of necessary formalities, the dead body was sent for post -mortem which was conducted on 12th February, 1979 at 1.15 p.m. by P.W. 4 Dr. Hamidullah. The deceased was aged about 18 years and about 2 - 3/4 days had passed since he died. The following two ante -mortem injuries were found on his person:

(3.) THE accused pleaded not guilty. According to him, he did not know if the deceased plied rickshaw. He also denied the recovery of wrist watch of the deceased at his pointing as also the recovery of his dead body at his pointing. He took the defence that he had been falsely implicated as he was not allowing the witnesses to sit in his rickshaw free of cost.