JUDGMENT 1. - Three accused persons namely, Rampal Das, Sheoji and Dashrath were tried for offences under sections 302, 302/34, 201 and 379 IPC. The learned Sessions Judge, Tonk, by his judgment dated October 16, 1980, acquitted Rampal Das and Dashrath of all the charges but convicted Sheoji under section 302 and awarded a sentence of imprisonment for life and also under section 379 IPC and sentenced to six months rigorous imprisonment. 2. Sheoji has filed this appeal challenging his conviction and sentence under the aforesaid offences. 3. Shortly stated the prosecution case was that Lali a girl of about 6 years of age was living with her father Kalyan PW 1 at village Kurad. On April 5, 1980, Lali was playing outside her house in the night when some 'Jagran' was going on in the village. The accused Sheoji gave a temptation of giving some sweets to Lali and took her to his house which was situated in the neighbourhood. Thereafter, the accused Sheoji and his brother Dashrath took out khungali (a silver ornament) from the neck of Lali and when Dashrath told that Lali would tell this fact to her parents, as such she should be killed, both Sheoji and Dashrath killed Lali and as they did not find any opportunity to throw the dead body of Lali, as such they burned the dead body of Lali in their own house. On the next day when Lali did not return back to her house till evening then a frantic search was made for Lali in the village but when she could not be traced then all the residents of the village decided to take search of every house as they apprehended that Lali might have been burried under some bags kept in the houses. When the house of Rampal Das and his two sons Sheoji and Dashrath was searched then a wet portion was seen by the villagers inside a corner of the house. When that portion was dug then the dead body of lali was found burried, Rampal and Dashrath, who were in the village, were arrested but Sheoji could not be traced as he had absconded. When that portion was dug then the dead body of lali was found burried, Rampal and Dashrath, who were in the village, were arrested but Sheoji could not be traced as he had absconded. In the night when the villagers were sitting on a platform then two persons Baney Singh and Madan Singh of village Sah brought Sheoji, who on interrogation confessed that he alongwith Dashrath had taken out khungali from the neck of Lali and when Dashrath told that Lab would go and narrate the incident to her house as such they both killed lali and thereafter both of them along with their father burried the dead body of Lali in their house. Thereafter, Sheoji was produced at the Police Station. Prior to this when dead body of Lali had been found a first information report vide Ex. P1 was lodged at the Police Station Lamba Harising by Kalyan PW 1 father of Lali. The police prepared an inquest memo vide Ex. P 3 at the residence of Rampal Das and got the post-mortem conducted by Dr. Ramesh Chandra Bakiwal Medical Officer Incharge Primary Health Centre, Malpura. On examination the Doctor found the following external and internal injuries : 1. Ligature marks three in number, each 1/4" wide and ⅛" away (distant) for each other encircling the neck horizontally and completely margine of mark-reddish, hard. There are abrasions on skin adjacent to upper most mark. All the marks situated below the thyroid cartilage. 2. Condition of pupils- Eyes closed, conjunctive congested, pupils dilated. 3. Blood present in subscutaneous tissue under the ligature marks and in adjacent muscles of neck. Laceration of both cartoid arteries. Fracture of cornug of hyoid and cornum of thyroid cartilage. Laryings, and trachea are conjested containing flothy mucus. In the opinion of the doctor the cause of death of Lali was strangulation leading to asphyxia and death. The accused Sheoji gave an information under section 27 of the Evidence Act vide Ex P13 on April 7, 1980 for the recovery of Hansli of silver from inside the 'SAL' of his residential house. On this information 'Hansli' was recovered vide recovery memo Ex. P9 in the presence of Motbirs Ram Chandra PW 19 and Sumar Singh PW 15. 4. On this information 'Hansli' was recovered vide recovery memo Ex. P9 in the presence of Motbirs Ram Chandra PW 19 and Sumar Singh PW 15. 4. The police after usual investigation filed a challan in the Court of Chief Judicial Magistrate, Tonk, who subsequently committed the case for trial to the court of Sessions. 5. The prosecution in support of the case examined 19 witnesses in all and the accused persons in their explanation under Section 313 Cr. P. C. totally denied the prosecution case. No evidence was led by the accused. 6. So far as the accused persons Rampal Das and Dashrath are concerned the learned Sessions Judge acquitted mainly on the ground that the extra judicial confession made by accused Sheoji cannot be read against these two accused persons and so far as Rampal Das is concerned, it was further observed that the prosecution had led no evidence against him for committing the murder of Lali. The learned Sessions Judge as such acquitted the two accused persons mentioned above but so far as accused Sheoji is concerned he relied upon the extra judicial confession supported by other circumstantial evidence against him. 7. It was contended by learned counsel for the accused-appellant that when the principal accused Dashrath had been acquitted then no conviction can be maintained against Shcoji on the basis of the same evidence. It was also argued that there were material contradictions in the statements of PW 2 Roop Singh, PW 7 Ramdhan, PW 9 Nemi Chand, PW 10 Ram Karan and PW 19 Ram Chandra so far as the extra-judicial confession is concerned and thus, such extra judicial confession alleged to have been made by Sheoji cannot be relied. It was also argued that there was inducement and promises given by PW 19 Ram Chandra at the time of confession made by Sheoji and as such there was no value of such extra judicial confession made by Sheoji in their presence. 8. We have gone through the entire prosecution evidence and have thoroughly perused the record of the case. There remains no doubt that Lali was killed by strangulation as proved by Dr. Ramesh Chandra Bakliwala and this fact is not even disputed by the learned counsel for the defence. 9. 8. We have gone through the entire prosecution evidence and have thoroughly perused the record of the case. There remains no doubt that Lali was killed by strangulation as proved by Dr. Ramesh Chandra Bakliwala and this fact is not even disputed by the learned counsel for the defence. 9. So far as Khangali' or 'Hansli', which was recovered on the information given by Sheoji, it has been proved by evidence of PW 1 Kalyan, PW 13 Ratni and PW 14 Kishna. PW 16 Ram Niwas, PW 15 Sumer Singh and PW 19 Ram Chandra, who are witnesses of the recovery memo. From the aforesaid evidence it is proved beyond any manner of doubt that 'Khangali' belonged to Lali and the same was given to her at the time of her betrothal and was recovered at the instance of the accused. The accused was arrested on April 6, 1980 and he had given the information on April 7, 1980, itself which was recorded vide Ex. P/12. A recovery of Khuagali was also made on the same day i.e. April 7, 1980, vide recovery memo Ex. P9. Nothing has been brought out to disbelieve the aforesaid evidence of recovery of Khungali made at the instance of the accused Sheoji. 10. The other evidence led by the prosecution is that when Lali did not return back to her house till evening then a frantic search was made and m hen Lali could not be found then it was decided by the villagers to make a search of every house in the village. The house of Rampal Das was locked and the same was opened by Sheoji. Suja PW 6, Roop Singh PW 2, Ram Lal PW 8, and Gopal went inside the house and found the dead body of Lali burried inside the house. All the aforesaid witnesses have stated that Sheoji gave the key of the house and then went away by saying that his father was present and search may be made as desired by the villagers. It has also come in evidence of the aforesaid witnesses that when the place was dug in the house of Rampal, a red piece of cloth was found after digging some portion and for which Rampal told that he had put that cloth for closing the rat holes. It has also come in evidence of the aforesaid witnesses that when the place was dug in the house of Rampal, a red piece of cloth was found after digging some portion and for which Rampal told that he had put that cloth for closing the rat holes. The villagers having become suspicious further dug the hole and found the dead body of Lali. There is no cross-examination on the part of the defence to disbelieve the aforesaid evidence. 11. Then there is evidence of extra judicial confession made by accused Sheoji in front of PW 2 Roopsingh, PW 7 Ramdhan, PW9 Nemi Chand, PW 10 Ram Karan and PW 19 Ram Chandra. All these witnesses have stated that the accused Sheoji was brought by the two persons of village Sah and when Sheoji was interrogated then he stated that he killed Lali. When the villagers asked Sheoji that he could have taken 'Khangali' but why he killed Lali then Sheoji said that his brother told that Lali should be killed otherwise she would go and narrate the incident at her house. It was further said by Sheoji that he caught hold of the legs of Lali and Dashrath actually strangulated Lali and thereafter they buried the dead body of Lali inside their house. 12. It was vehemently contended by learned counsel for the defence that at least two witnesses namely, Nemi Chand PW 9 and Ram Chandra PW 19 have admitted that at the time of making the confession, they had told that if the accused narrated the entire story truly then they would get him released. Firstly, in our view, even if the above statement of these two witnesses is taken to be correct, it does not amount to such inducement or promise so as to make the extra judicial confession illegal. That apart, PW 2 Roop Singh and PW 7 Ram Dhan and PW 10 Ram Karan before whom also the accused had made confession have not stated anything regarding any inducement or promise made to the accused at the time when he made the extra judicial confession before them. The defence has not put any questions in cross-examination of these witnesses to discredit their testimony and we believe the evidence of extra judicial confession made by the accused before these witnesses. 13. The defence has not put any questions in cross-examination of these witnesses to discredit their testimony and we believe the evidence of extra judicial confession made by the accused before these witnesses. 13. All the aforesaid circumstances irresistibly lead to the conclusion that Sheoji accused had taken Lali at his house and thereafter he took out Khangali' from her neck alongwith his brother Dashrath and concealed the same in his house. It is also proved beyond any manner of doubt that he caught hold of the legs of Lali and associated in the killing of Lab and thereafter burned the dead body of Lali in his house. The learned Sessions Judge has convicted the accused Sheoji under Sections 302 and 379 IPC. In our view, in the extra judicial confession made by the accused he only confessed that he had caught hold of the legs of Lali and thereafter his brother Dashrath had killed her by strangulation and father Rampal Das buried the dead body of Lali in their own house. In these circumstances according to the confession made by Sheoji the principal accused for the act of killing Lali was Dashrath but his case is not before us as no appeal is filed by the State against the order of learned Sessions Judge acquitting Dashrath from offence under section 302 IPC. However, the evidence of the prosecution witnesses as discussed above clearly establishes a guilt of abetting the offence of murder of Lali committed by accused Sheoji. In the facts and circumstances of the case the entire case was made known to accused Sheoji and he can be convicted under Section 302 read with Section 109 I.P.C. instead of section 302 I.P.C. 14. In the result we dismiss the appeal but modify the conviction of accused Sheoji from Section 302 IPC to Section 302 read with Section 109 IPC, We maintain the sentence of imprisonment for life awarded to the accused appellant for the aforesaid offence. His conviction and sentence under section 379 IPC is also maintained.Appeal dismissed. *******