Judgment MILAP CHANDRA JAIN, J. ( 1 ) THIS appeal has been filed by the accused-appellant against the judgment of the learned Additional Sessions Judge, Bhilwara dated April 30, 1990 by which he has been convicted under Sections 302 and 364 I. P. C. and sentenced to undergo imprisonment for life and 10 years respectively. He has also been sentenced to pay a fine of Rs. 200/- under Section 364, I. P. C. and in default of payment of fine to undergo rigorous imprisonment for four months. The prosecution case may be summarised as follows. ( 2 ) THE co-accused Rahamatulla (already acquitted by this Court on May 3, 1986, judgment reported in Rahamatulla v. State of Rajasthan; 1986 Cr. L. R. (Raj.) 567) and the accused appellant Fakir Mohd are first cousins. The deceased Surya Prakash, aged 22 years, was the elder brother of Chandra Prakash, P. W. 18. The deceased was a photographer and was carrying on business in Jahajpur (Bhilwara) under the name and style of Mis Laxmi Photo Studio. On March 6, 1979 at about 2 p. m. , both the accused came to the deceaseds Studio and requested him to take their photographs at the Fort. The deceased Surya Prakash acceded to their request and accompanied them with his camera Art. 2 and flash gun to the Fort. He was then wearing wrist watch. The accused-appellant Fakir Mohd had a bag containing one bed sheet and one nylon card. In the way, the party met some persons. Some of them also requested the deceased Surya Prakash to take their photographs and the latter told them that he would take their photograph while returning. Both the accused and the deceased reached the Shitlamata temple situated on the Fort. In the vicinity of the temple, the deceased took two photographs of the co-accused Rahamatulla and one photograph of the accused appellant Fakir Mohd. While he was taking the third photograph of the co-accused Rahamatulla, the accused appellant Fakir Mohd suddenly spread his bed sheet over the head of the deceased Surya Prakash and the co-accused Rahamatulla tied his hands and feet with the nylon cord. The accused-appellant Fakir Mohd. felled the deceased down, he sat on his chest and pressed his throat continuously till he breathed his last. The accused-appellant Fakir Mohd. felled the deceased down, he sat on his chest and pressed his throat continuously till he breathed his last. The accused persons collected his camera Art. 2, flash gun Art. 3 and the wrist watch of the deceased and placed them in a corner. After sun set, they took the victims dead body and put it in a ditch near the Fort. The camera Art. 2, Flash gun Art. 3, wrist watch Art. 4 and the said cord Art. 1 were taken away by the accused- appellant Fakir Mohd. On March 7,1979 at about 9. 30 A. M. , the Police constable Mohanlal P. W. 7 noticed the said dead body lying in the ditch. He submitted written report Ex. P/10 before the S. H. O. , Police Station, Jahajpur. F. I. R. Ex. P/10a was registered under Sections 302 and 364, I. P. C. Usual investigation was commenced. The S. H. O. Shyam Sunder P. W. 24 came to the place where the dead body was lying and prepared the inquest report Ex. P/12 and site plan Ex. P/11. He recovered remaining piece of nylon cord Art. 9 from the place near the Shitlamatas temple. The cloth of the deceased Surya Prakash were also seized and sealed. Dr. Ram Gopal P. W. 21 conducted the postmortem examination on the dead body of the deceased and prepared postmortem report Ex. Pin. In his opinion, the cause of death was asphyxia due to throttling. On March 10, 1979, the accused appellant Fakir Mohd. was arrested through arrest memo Ex. P/21 and on March 11, 1979 the co-accused Rahamatulla was arrested through arrest memo Ex. P/34. In consequence of the information Ex. P/33 furnished by the accused appellant Fakir Mohd camera, flash gun and wrist watch were recovered from different places. The co-accused Rahamatullah also gave information and in pursuance thereof, nylon piece was recovered. Thereafter, both the accused were sent to judicial custody. On March 17, 1979, the accused Rahamatulla made confession Ex. P/32 before the Munsif cum Judicial Magistrate, Sri C. L. Bajaj P. W. 25. On March 19, 1979, the accused appellant Fakir Mohd. made confession Ex. P/28 before the Munsif cum Judicial Magistrate Shri Udai Chand Barupal P. W. 23. Thereafter, both the accused were sent to judicial custody. On March 17, 1979, the accused Rahamatulla made confession Ex. P/32 before the Munsif cum Judicial Magistrate, Sri C. L. Bajaj P. W. 25. On March 19, 1979, the accused appellant Fakir Mohd. made confession Ex. P/28 before the Munsif cum Judicial Magistrate Shri Udai Chand Barupal P. W. 23. In the identification test, camera Art. 2, Hash gun Art. 3 and wrist watch Art. 4 were correctly identified to be of the victim Surya Prakash by his younger brother Chandra Prakash P. W. 18 and Ramesh Chandra P. W. 17. In presence of Tehsildar Ram Narayan P. W. 1 camera was opened and reel Art. 5 was removed, it was developed by the photographer Guman Singh P. W. 19 and their positive photographs Ex. P/6, P/7 and P/8 were prepared. After completing investigation, the police filed challan against the accused Rahamatulla and Fakir Mohd in the court of Munsif cum Judicial Magistrate, Jahajpur who in turn committed them to the court of sessions. ( 3 ) THE case was transferred to the court of Additional Sessions Judge, Bhilwara for trial. He framed charge under Sections 302, 302/34 and 364, I. P. C. against both the accused persons. They did not plead guilty and claimed trial. The accused persons either denied the prosecution story or pleaded their ignorance. In their statements recorded under Section 313, Cr. P. C. they retracted from their judicial confessions Ex. P/28 and P/32 and said that they were recorded on the dictation of the police officers and their signatures were simply taken on them. The accused appellant Fakir Mohd has further stated that the Dy. S. P. Narendra Mohan P. W. 20 took them to the fort on March 11, 1979 and got their photographs taken by Shakil photographer. He has also disclosed that till his statement Ex. P/28 was not recorded, he was kept in the police station, there he was repeatedly told that he would be released if he gave statement against the co-accused Rahamatulla and for the first time he Was admitted in the jail on March 15, 1979 and the same day he was taken out. He also stated that before his arrest, Hanif P. W. 14 met him at Bhilwara on March 6,1979, he told him that he had brought a camera and he invited him to Ajmer. He also stated that before his arrest, Hanif P. W. 14 met him at Bhilwara on March 6,1979, he told him that he had brought a camera and he invited him to Ajmer. No witness was produced in defence by any accused. ( 4 ) IT has been contended by the learned counsel for the accused-appellant Fakir Mohd that no prosecution witness has deposed that the photographs Ex. P/6, P/7 and P/8 are of the accused persons and as such the learned trial court has seriously erred in taking them into consideration. He also contended that there is no evidence that Articles seized were scaled and relevant entries of the Malkhana Register of the police station have not been filed and proved. He further contended that according to the memo Ex. P/9 on 22nd March, 1979, the sealed packet containing camera Art. 2, flash gun Art. 3 and watch Art A and bag Art. 6 was opened, the reel of the camera was taken away and it was got developed the same day and the memo Ex. P/20 dated March 21,1979 recites that the reel taken out of the camera was got developed, it showed that three photographs were taken by the deceased near the temple of Shitlamata and for the confirmation of the site similar photographs were got taken of the same place. He contended that how it could be known on 21st March, 1979 as recited in memo Ex. P/20 that reel contained in the camera Art. 2 had photos of the vicinity of Shitlamata temple when the sealed packet containing camera was itself opened on March 22, 1979 as stated in memo Ex. P/9. He lastly contended that the judicial confession alleged to have been made by the accused appellant Fakir Mohd was duly retracted by him and as such no reliance could be placed upon it. ( 5 ) IN reply, it has been contended by the learned Public Prosecutor that there is no law prohibiting the use of retracted confession if it is voluntary and finds corroboration from other evidence on record and the learned trial court has rightly taken into consideration the judicial confession Ex. P/28 as there is overwhelming evidence on record to corroborate it. He also contended that both the accused persons have admitted in their statements recorded under section 313, Cr. P/28 as there is overwhelming evidence on record to corroborate it. He also contended that both the accused persons have admitted in their statements recorded under section 313, Cr. P. C. that they were taken to the Shitlamata temple, fort, Jahajpur by the police after their arrest, their photographs were then taken there by photographer Shakil and as such there was no question of proving that the photographs Ex. P/6, P/7 and P18 are of accused persons when they themselves admit them to be their. He lastly contended that a mountain out of mole has been made due to little discrepancy in the dates of Ex. P/9 and P/20 and in fact Ex. P/9 was prepared first and Ex. P/20 was prepared subsequently on March 24,1979 and the 21. 3. 1979 appeared due to slip of pen. ( 6 ) ON March 16, 1979, the accused appellant Fakir Mohd was produced before Shri Udai Chand Barupal P. W. 23, Munsif cum Judicial Magistrate, Jahajpur along with application Ex. D/l0 requesting for recording his confession. He was sent to judicial custody. ( 7 ) ON March 19, 1979 at 11 A. M. the accused-appellant Fakir Mohd, was produced before the Magistrate from judicial custody. He passed the following order:. . (Hindi matter Ommited ). . ( 8 ) THE accused appellant was again produced before him at 3 P. M. from the judicial custody. Shri Barupal P. W. 23 has deposed that from 11 A. M. to 3 P. M. the accused Fakir Mohd. remained sitting in his court room. Following usual questions were put to him and he gave the replies. (Hindi matter) Thereafter, his confession Ex. P/28 was recorded. . . (Hindi matter Ommited ). . ( 9 ) THE following note has been given by Shri Barupal P. W. 23 below the above quoted confession. . . (Hindi matter Ommited ). . ( 10 ) SHRI Barupal P. W. 23 has given all necessary details in his statement on oath. Nothing damaging could be elicited out in his cross-examination. A suggestion was put in his cross- examination that statement Ex. D/8 recorded under section 161, Cr. P. C. was enclosed by the Dy. S. P. Narendra Mohan with the said application Ex. D/10 moved for recording judicial confession of the accused Fakir Mohd. Nothing damaging could be elicited out in his cross-examination. A suggestion was put in his cross- examination that statement Ex. D/8 recorded under section 161, Cr. P. C. was enclosed by the Dy. S. P. Narendra Mohan with the said application Ex. D/10 moved for recording judicial confession of the accused Fakir Mohd. Shri Barupal P. W. 23 has denied this suggestion and further stated that the statement Ex. D/8 was enclosed with the chauan. He has also deposed that it is incorrect to suggest that the Dy. S. P. Narendra Mohan P. W. 20 requested him to record the confession on the lines of the statement Ex. D18. He has further deposed that on March 19, 1979 he did not see Dy. S. P. Narendra Mohan in the court premises. In reply to the question No. 9 put to the accused Fakir Mohd. under Section 313, Cr. P. C. he stated that the said judicial confession was got recorded by the Dy. S. P. , it was not read over to him and he simply put his signature on it. In view of the said statement of Shri Barupal P. W. 23, no reliance can be placed on this version of the accusedappellant. Shri Udai Chand Barupal P. W. 23 is one of the best Judicial Officer of Rajasthan. He is well known for working in accordance with law. No error in the procedure adopted by Sri Barupal could be pointed out by the learned counsel for the appellant. ( 11 ) IT may also be mentioned here that this judicial confession Ex. P/28 was recorded as early as on March 19, 1979 and for the first time it was retracted by the accused appellant Fakir Mohd. on February 18, 1980 when he was examined under Section 313, Cr. P. C. In such a circumstance, it has been held in Shankaria v. State of Rajasthan, that such a confession is voluntary. ( 12 ) VARIOUS portions of the confession Ex. P1 28 find corroboration from the following evidence on record: (1) Portion A B Saddiq P. W. 15 has deposed that one day before at about 2. 30 P. M. , he saw both the accused Rahamatulla and Fakir Mohd. in front of the Studio of the deceased Surya Prakash and on enquiry the accused Fakir Mohd. told him that he had come to get their photographs taken. 30 P. M. , he saw both the accused Rahamatulla and Fakir Mohd. in front of the Studio of the deceased Surya Prakash and on enquiry the accused Fakir Mohd. told him that he had come to get their photographs taken. (2) Portion C D The pujari of the Nawaishyam Temple situated in the Fort of Jahajpur, Govindlal P. W. 2 has deposed that on March 6, 1979 he saw both the accused persons in the Fort, Jahajpur moving suspiciously there. Balulal P. W. 3 has deposed that he saw the deceased photographer Surya Prakesh going towards the Fort along with the two accused persons present in the courtroom and he Surya Prakash was having camera and light gun with him. He correctly identified them in the identification parade. Mst. Pani P. W. 5 has deposed that she was working as a labourer with Masion Jalil who was repairing the stairs of the Dargah at about 3 P. M. she saw two boys going with a man having a camera, she requested the camera man to take her photograph also, be told that he would take her photograph on return but he never returned. Similar is the statement of Jalil Khan P. W. 6. He has also deposed that the said two boys were the accused appellant Fakir Mohd. and Rahumatulla. Head constable Ram Singh P. W. 4 has deposed that both the accused persons were admitted in the Jail Baparda. Tehsildar Ram Narayan P. W. 1 has deposed that he conducted identification parade of both the accused persons, Govindlal P. W. 2, Balulal P. W. 3, and Mst. Pani P. W. 5 correctly identified the accused appellant Fakir Mohd. and he prepared the identification memo Ex. P14. (3) Portion E F Photographer Ram Singh P. W. 13 has deposed that camera An. 2 and flash gun Art. 3 were given by him to the deceased Surya Prakash and they were identified by him in the identification test. He has also deposed that on the request of the police he took the photographs Ex. P/18 and P/19 of the place of occurrence. He denied the suggestion put to him in his cross-examination that on the direction of the police he also took the photographs of both the accused persons in the vicinity of Shitlamata temple, Fort, Jahajpur. He has also deposed that on the request of the police he took the photographs Ex. P/18 and P/19 of the place of occurrence. He denied the suggestion put to him in his cross-examination that on the direction of the police he also took the photographs of both the accused persons in the vicinity of Shitlamata temple, Fort, Jahajpur. Photographer Guman Singh P. W. 19 has deposed that on March 22, 1979 he was called by the Munsif Cum Judicial Magistrate, Jahajpur in the court, there the Tehsildar and police were present, one sealed packet was opened by the Magistrate and a camera was taken out there from. He has further deposed that the Magistrate asked him to develop the film which was in the camera, he developed the same in presence of the Tehsildar and three photographs Ex. P/6, pm and P/8 were prepared from the negative Ex. P/5. The fourth negative was found exposed. He denied the suggestion put in his cross-examination that the police took the accused persons to the Shitlamata temple and he took their photographs. Similar is the statement of Dy. S. P. Narendra Mohan P. W. 20. He has deposed that the memos Ex. P/9 and P/22 were prepared by him and with the help of the photographs Ex. P/6, pm and P/8 he got the photographs Ex. P/18 and P/19 of the place of occurrence after the arrest of the accused persons. The investigating officer Onkarlal P. W. 27 has denied the suggestion put in his cross- examination that he took both the accused persons to the place of occurrence and got the photographs Ex. P16, P/7 and P/8 taken there. (4) (Portion G H) On March 7,1979, Dr. Ram Gopal P. W. 21 conducted the post-mortem examination on the dead-body of the deceased Surya Prakash and prepared his postmortem report Ex. P/23. During the examination of the dead body, he noted one ligature mark of 6 x 1/4 cm. around dorsum of left wrist, two ligature marks of 5 x 1/4 cm. each around upper dorsum of right hand, one ligature mark of 7. 5 x 1/4 cm. around lateral side of left lower leg and two ligature marks of 7 x 1/4 cm. each around lateral side of right leg. In his opinion, the cause of death was asphyxia due to throttling. each around upper dorsum of right hand, one ligature mark of 7. 5 x 1/4 cm. around lateral side of left lower leg and two ligature marks of 7 x 1/4 cm. each around lateral side of right leg. In his opinion, the cause of death was asphyxia due to throttling. A. S. L Shyam Sunder P. W. 24 has deposed that ligature marks were visible on his hands and feet and swelling on his neck, he prepared the site plan Ex. Pill, memo Ex. P/12 and Panchanama Ex. P/15. (5) (Portion I J) Mohanlal P. W. 7, Laxmi Narayan P. W. 8, Kalekhan P. W. 9 and Dharmveer P. W. 10 have deposed that they saw the dead body of the deceased Surya Prakash photographer in a ditch near the temple of Shitlamata, Fort, Jahajpur. A. S. I Shyam Sundar P. W. 24 has deposed that he found the dead body of photographer Surya Prakash in a ditch near Burj. He has further deposed that he found a piece of nylon cord Art. 9 in the verandah of the Shillamata temple and seized it through the recovery memo Ex. P/b. (6) (Portion K L) Attesting witness Kalu Singh P. W. 12 has deposed that the accused appellant Fakir Mohd. was in the police custody when he met with him in Nagphani, Ajmet at his (Fakir Mohd.) instance, Hanif Mohd. gave camera and flash gun to the police after removing earth from grave yard. Hanif Mohd. P. W. 14 has deposed that the accused appellant is his cousin, he came to his house situated in a grave yard, Ajmer at about 4 A. M. , he gave camera Art. 2 and flash gun Art. 3 for selling them, he asked him to take away them from his place, he (Fakir Mohd.) requested him to get the watch Art. 4 pledged to get some money for going back to Jahajpur and he left his place after keeping these articles in the grave yard. Kalu Singh P. W. 12 has deposed that at the instance of the accused Fakir Mohd. Hanif Mohd. took out camera and flash gun from the ground after removing some earth from it. Abdul Shami P. W. 16 has deposed that he identified the camera Art. 2 and flash gun Art. 3 in the identification test and told there that they belonged to deceased Surya Prakash photographer. Hanif Mohd. took out camera and flash gun from the ground after removing some earth from it. Abdul Shami P. W. 16 has deposed that he identified the camera Art. 2 and flash gun Art. 3 in the identification test and told there that they belonged to deceased Surya Prakash photographer. Brother in-law of the deceased, Ramesh Chandra P. W. 17 f has deposed that watch Art. 4 and its belt Art. 4a belonged to the deceased Surya Prakash and he identified them is the identification test. Chandra Prakash P. W. 18, brother of the deceased, has deposed that he identified the watch Art. 4 before the Tehsildar in the identification test and told him that it belonged to his brother Surya Prakash. The investigating officer Onkarlal P. W. 12 has deposed that the accused-appellant Fakir Mohd. gave information Ex. P/33 to him while he was in police custody for the camera Art. 2, flash gun Art. 3 and watch Art. 4, in pursuance there of he took him to a house situated in the I grave yard, Ajmer. On his (Fakir Mohd.) request Hanif Mohd. took out the articles from the ground after removing some earth and the recovery memo Ex. P/17 was prepared by him. ( 13 ) IN reply to the question No. 19 and 21, the accused-appellant Fakir Mohd. has said that the police took him on March 11, 1979 to the fort and got their photographs taken by Shakil photographer. He further stated that he was not aware that reel was taken out from the camera Art. 2 by the photographer Guman Singh P. W. 19 in presence of the Magistrate Shri Barupal P. W. 23. Tehsildar Ram Narain P. W. 1, it was developed, negative Ex. P/5 was obtained and photographs Ex. P/6, P1 7 and P/8 were prepared with the negative Ex. P/5. He did not dare to say that the photos Ex. P/6, P/7 and P/8 were not of them. The police got the photographs Ex. P/18 and P/19 taken of the backgrounds of the photos Ex. P16, P/7 and P/8. No accused appears in any of the photos Ex. P/18 and P/19. No suggestion was put in the cross-examination of Ram Narain P. W. 1, photographers Ram Singh P. W. 13, Guman Singh P. W. 19 and the investigating officers that the photographs Ex. P/18 and P/19 taken of the backgrounds of the photos Ex. P16, P/7 and P/8. No accused appears in any of the photos Ex. P/18 and P/19. No suggestion was put in the cross-examination of Ram Narain P. W. 1, photographers Ram Singh P. W. 13, Guman Singh P. W. 19 and the investigating officers that the photographs Ex. P/6, P/7 and P/8 are not of the accused persons. Suggestions were put in the cross-examination of photographers, Ram Singh P. W. 13 and Guman Singh P. W. 19 that the photographs of the accused persons were taken at the fort, Jahajpur on March 11, 1979 on the direction of the police and they denied them. It is well settled law that a part of the statement of the accused can well be taken into consideration. Reference of Sampat Singh v. State of Rajasthan, may be made here. These facts and circumstances leave no manner of doubt that the photographs Ex. P/6, P/7 and P/8 are of the accused Rahamatullah and Fakir Mohd. ( 14 ) IT is correct that date of 21/3/1979 has incorrectly been mentioned in the memo Ex. P/20. It is recited therein that the photographs Ex. P/18 and Ex. P/19 have been taken by photographer Ram Singh P. W. 13 that day. These photos Ex. P1 18 and Ex. P/19 bear the stamp of the Studio showing number P5 and date 24/3/1979. Thus this memo Ex. P/20 was in fact prepared on March 24, 1979 and not on March 21,1979. Memo Ex. P/9 was prepared by Shri Barupal P. W. 23 on March 21, 1979. It is recited in it that on that day camera Art. 2 was taken out from the sealed packet, reel was removed there from, it was developed and photos Ex. P16, P/7 and P/8 were got prepared from the negative Ex. P/5. The prosecution case which is otherwise well proved cannot be thrown away on the ground of this little discrepancy (State of UP. v. Anil Singh ). ( 15 ) EVEN ignoring the judicial confession Ex. P16, P/7 and P/8 were got prepared from the negative Ex. P/5. The prosecution case which is otherwise well proved cannot be thrown away on the ground of this little discrepancy (State of UP. v. Anil Singh ). ( 15 ) EVEN ignoring the judicial confession Ex. P/28 for the sake of arguments for a moment, the following facts and circumstances are well proved from the evidence referred to in the aforesaid para No. 2: (1) On March 6, 1979: a. both the accused persons were seen in front of the Studio of the deceased Surya Prakash for getting their photos taken by him. b. both the accused were seen going to the fort, Jahajpur along with the deceased Surya Prakash with a camera in his hand. Thereafter, the deceased was not seen alive by any body. c. The accused were seen on the Fort, Jahajpur moving suspiciously. (2) The dead body of Surya Prakash (deceased) was found in a ditch on March 7, 1979. (3) Camera Art. , 2, flash gun Art. 3 and watch Art. 4 belonging to the deceased were recovered hidden in a grave yard at Ajmer and were recovered at the instance of the accused-appellant there from on March 10, 1979. (4) On opening camera Art. 2, reel was found therein, wherefrom negative Ex. P/5 was developed and photographs Ex. P16, P/7 and P/8 were prepared. There photos are of the accused persons and have the back ground of Shitlamata temple, Fort, Jahajpur. (5) The cause of death of the deceased Surya Prakash was asphyxia. Several ligature marks were also noted on the arms and feet of the dead body. ( 16 ) THESE facts and circumstances leave no manner of doubt that the accused-appellant Fakir Mohd. committed the murder of Surya Prakash on March 6,1979. It may also be noted here that the accused-appellant filed his appeal in the year 1987 after about seven years of his conviction and sentence on the acquittal of co-accused Rahamatullah by this Court. Thus there is no force in the appeal. ( 17 ) ACCORDINGLY, the appeal is dismissed. The conviction and sentence of the accused-appellant Fakir Mohammed under Section 302 and 364 I. P. C. are maintained. Appeal dismissed.