P (PLP)

On the morning of April 11th 1950, the body of the deceased was noticed lying at some distance from the house of the accused by Asaf Khan (P. W. 3) Girdawar Qanungo who informed the inmates of the house. At that time Mist. Anwar Begun (P. W. 2) wife of the deceased, her father Sian Khan (P. W. 1) and other relations were living with, the accused's family in the same house. It is alleged that the accused had brought Mst. Anwar Begum, her father and other relations to his house from another village where they were living tempora rily as refugees because of his illicit intimacy with Mst. Anwar Begum. The wife of the deceased, her father and others proceeded to the spot where the dead body was lying and began to weep over it. A report was written by Asaf Khan and sent to the police station. The Sub‑Inspector reached the place of occurrence the same day and despatched the dead body after noting the wounds found thereon for post‑mortem exa mination. An axe (P. 1) which was lying near the dead body was taken into possession. The burnt pieces of wood and other articles lying close to the dead body were also taken into possession. The investigation was taken in, hand and it was discovered that previous to the murder the deceased had gone with the accused to Jhelum. It was therefore, suspected that the crime had been committed by the accused. The police took the accused into their custody, when he reached the village some time on 11th April. On 12th April some blood stains were observed on the shirt of the, accused. The shirt was consequently removed from his person and taken into possession. An hatchet was also recovered from the house of the accused, at his instance. No stains of blood were found however, on it. The hatchet found lying near the dead body and the pieces of shirt removed from the body of the‑ accused were sent to the Chemical Examiner for analysis. The report of the Chemical Examiner and that of the Imperial Serologist was that both these articles were stained with human blood. On 20th April, 1950, the confession of the accused was recorded by a 1st class Magistrate and in it he admitted to have killed the deceased. Mst. Anwar Begum who stated that she also took some minor part in the crime and instigated the accused to murder the deceased on account of her illicit connection with him was made an approver. The post‑mortem examination of the dead body re -revealed that the injuries had been caused to the deceased with hatchet etc. The other evidence collected by the police to connect the accused with the crime consisted of the statement of wit nesses who saw the accused going in the company of the deceased shortly before the murder, barring the statement of zaildar who deposed as to the extra judicial confession of the accused. On the strength of the above evidence the accused was sent up for trial. In defence he denied that he had committed the crime and pleaded that the shirt alleged to be stained with human blood had not been removed from his person and did not belong to him. The accused however, did not produce any evidence in defence. The learned Sessions judge relying upon the evidence of the approver and other circumstantial evidence `connecting the accused with the crime coupled with the evidence regarding the illicit connection of the accused with Mst. Anwar Begum which provided the motive for the crime convicted and sentenced the accused as stated above. The confession was retracted by the accused at the trial and he stated that he had made it out of fear from the police. It is well‑settled principle of law that a retracted confession can only form the basis of conviction if it gives the true circumstances of the crime. The testimony of an approver stands on the same footing unless it corroborated by some independent evidence. We have examined the retracted confession of the accused and the statement of the approver in the light of criticism advanced by the learned counsel for the appellant and we are satisfied that neither the retracted confession of the accused nor the testimony of the approver is of any value, in judging the guilt of the accused. Both in the confession and the statement of the approver appear certain details which give them colouring of concocted story. These details briefly mentioned are:‑-- (a) that it was decided between the accused and Mst. Anwar Begum that the accused would return to his village on the night of the occurrence after finishing the deceased. (b) that Mst. Anwar Begum on hearing the outcry of the deceased after he had received a hatchet blow and fallen down at mid‑night went outside the house and gave one hatchet blow to the deceased. (c) that after the crime had been committed Mst. Anwar Begum admired the action of the accused and washed his shirt with sunlight soap which she had taken with her while going out of the house. (d) that after the crime was committed the accused desired sexual intercourse with Mst. Anwar Begum and she prevented him from doing so saying that she was menstruating. All these details are improvable and unnatural. These have been introduc ed in our opinion to make Mst. Anwar Begum accomplice in the crime. We, therefore, refuse to rely upon the retracted confession of the accused and testimony of the approver for deciding about the complicity of the accused in the crime. Coming now to the other evidence produced in the case we are of opinion that it does lead to the inference that it was the accused and none else who committed the crime. The strongest piece of evidence in this connection is the factum of the deceas ed going with the accused previous to the occurrence to Jhelum side and the crime having been committed in the vicinity of the house of accused. The accused no doubt stated that he parted company with the deceased while they were returning from Jhelum but he has not adduced any evidence in support of this fact. The other item of evidence against the accused is supplied by the presence of stain's of human blood on the shirt removed from his person. The accused no doubt denied that the shirt belonged to him but we are not prepared to believe it because of trustworthy evidence produced by the prosecution to the effect that the accused was wearing the shirt when it was taken into the possession. The blood stains on the shirt of the accused indicate that it was he who caused the injuries to the deceased. It has been argued that ordinarily in the case of villagers, no adverse inference can be drawn from the presence of stains of human blood on the clothes worn by them but in the present case this is not the only item of evidence leading to the guilt of the accused. The remaining evidence is indeed of a shaky and flimsy character. The evidence as to the extra judicial confession of the accused is particularly unreliable. The witness deposing to it is zaildar and he is in all proba bility making the statement under the influence of the police. The witnesses who state that the deceased and the accused were seen going together are chance witnesses and no reliance can be placed on their evidence. On the basis of the evidence con sidered reliable by us we are satisfied that the accused was rightly convicted by the learned Sessions judge of the murder of the deceased. The accused has been given the lesser penalty prescribed for the offence of murder. He could be given maximum penalty but the learned Sessions judge has not done so, on account of his young age. The youth by itself is not sufficient for treating the accused leniently. Any how we do not want t8 interfere with the discretion used by the learned Sessions judge in sentencing the accused. We therefore, dismiss the appeal. The prisoner to be informed of the result of the appeal through jail authorities. NIAZ AHMED, J.‑I agree. A.H Appeal dismissed.