A.H. Khan, J.
1. The Additional Sessions Judge Bhilsa convieted the accused under Section 302 Indian Penal Code and sentenced him to life imprisonment. He also convicted the accused under Section 394 read with Section 397 I. P. C. and sentenced him to 7 years rigorous imprisonment. Both the sentences were to run concurrently. Aggrieved by his convictions and sentences the accused has filed this appeal.
2. The victim in this case is Batton, a boy aged about 7 years. His natural father Harikrishan had given him in adoption to Halku P. W. 1. At the time of the occurrence, Battan was living with his adoptive father in village Bagri. The accused Balla was also a resident o the same village. Since the accused and the boy (Battan) be lived in the same village, they got friendly. The accused Balla owned a vegetable-farm situated on the outskirt of the village. On 24-2-57, before noon, Battan visited the field of his adoptive father, who at that time was carrying on winnowing operations. The boy then was wearing a coat and had a cap on his head, besides two golden Murkies, silver bangles and two anklets. It is said that from the field of his father Battan went towards the accused who was of is farm collecting brinjals. About that time Halku asked Shyamlal P. W. 2 (his servant) to bring bullocks from the grazing field so that the corn may be thrashed. Shyamlal went to the grazing ground where he met the accused Balla and also Battan.
Shyamial asked Battan to come along with him and help him in taking the bullocks to his father's field. The young boy (Battan) refused to go with Shyamlal and told him that he would rather assist his friend Balla, in collecting brinjals at the farm. A few hours after this, Halku's wife (adoptive mother of Battan) came to Halku and enquired about Battan who had not been to the house to take his noon-meal. Halku told his wife not to worry about the boy who must be playing somewhere. As the evening approached, and, Battan did not turn up, they naturally became anxious. They told Laxminarayan, who was the Muk-kadam of the village about the disappearance and thereafter the whole village was astir and a vigourous search was made for the missing boy. They also asked the accused Balla about Battan, but he denied knowledge of his whereabouts. When the search yielded no result, a report was ultimately made at police station. Bhilsa, the following day (Ex. P1). The Police Officer reached the village at about 6 P. M., and in the course of his investigation he also questioned Balla. the accused.
The accused is said to have told the Police Officer in the presence of other villagers that he had strangled the boy and buried his body in a Nalla which was about a mile from the village. The accused led the Police Officer and the withesses to the Nalla where he dug out some earth and brought forth the body of the deceased from a pit. A rope was found tied to the neck. The following morning at .the instance of the accused, Murkies, silver bangles and anklets of the deceased were al o recovered from the vegetable-farm of the accused. The accused appears to have told the Police that he the with' coat and the cap in a well. But no discovery of those articles was made, and the efforts of the Police in that direction resulted in blank.
3. The evidence in this case against the accused mainly consists of (1) persons who saw Battan with the accused on the fateful day, (2) the discovery of the body, (3) discovery of the ornaments, the boy was wearing, at the instance of the accused, (4) his confession before the Magistrate and (5) the admission of his guilt which he made before the Committing Magistrate. I proprose to examine the evidence referred to above.
4. Shyamlal P. W. 2 has deposed that on the fateful day, he saw the accused and Battan together near the vegetable-farm known as Bhatoi. Parma P. W. 7 says that he saw Battan in the vegetable-farm.
5. There is ample testimony on the record, which is not challenged by the learned counsel for the accused appellant, that the dead body of Battanwas recovered at the instance of the accused. Nor is there any reason to doubt that the discovery of the gold earings, silver bangles & anklets was also made at the instance of the accused. The recovered articles have been identified as those the deceased was wearing on the day he disappeared.
6. Regarding the confession (Ex. P. 17), 1 find that it was recovered by the S. D. M. Bhilsa on 4-3-57. The accused was produced before him on 2-3-57 and he ordered that the accused he kept in the judicial lock-up. This was done and a couple, of days after being in the judicial lock-up, he was produced-and his confession was recorded. After a warning to the accused that he was not bound to make a confession and that if he made a confession, it may be used against him, the Magistrate recorded it. On going through the confession, which is Ex. P. 17, I find that all the formalities necessary for recording the confession were observed and that the recording Magistrate had satisfied himself regarding the voluntariness of the statement the accused made before him. The accused, however, before the Sessions Judge, denied having made the confession voluntarily. But in his statement before the Committing Magistrate, he had admitted making the confession and did not complain about any compulsion and force. This statement was brought on record under Section 287 of the Criminal Procedure Code, and, is to be read as evidence. Reading the confession and the statement of the accused tendered in evidence under Section 287 of the Criminal Procedure Code, I have no doubt that the plea of involuntariness put up by the accused has no force in it and I think that the confession was voluntarily made and is substantially correct.
7. The medical examination of the dead body of Battau shows that the unfortunate boy died of asphyxia caused by strangulation. There were ligature marks on the neck, and, the piece of rope which was found tied to the neck at the time of recovery of the body, leaves no doubt that the unfortunate victim was strangled.
8. The motive of offence is said to be that the accused had bought a house, the price of which he had yet to pay. The accused had promised to repay the entire price of the house in Baisakh but he failed to do so. The accused had admitted all these facts in his examination under Section 342 Cr. P. Code, and it is suggested that the accused was in need of money and therefore killed the boy in order to rob him.
9. From the confession of the accused it appears that he killed the boy and'thereafter removed his ornaments. The accused has been convicted under Section 302, Indian Penal Code for causing death by strangulation. But the removal of ornaments after the death cannot amount to robbery because robbery is theft by force and theft is taking movable property out of possession of a person. If the act of theft had taken place while the boy was alive, it would have been robbery; hut removing ornaments from a dead body is not taking ornaments out of the possession of a person. A dead body is not a person. In the circumstances the act of the accused amountsto dishonest misappropriation of property possessed by the deceased and is an offence under Section 404 Indian Penal Code. In this view of the matter, the accused should be acquitted of the offence under Section 394 read with Section 397 I. P. C. but in its place must be convicted under Section 404 Indian Penal Code.
10. In the result the conviction and sentence of the accused under Section 302 Indian Penal Code are maintained. His conviction and sentence under Section 394 read with Section 397 I. P. C. are set aside, but he is convicted under Section 404 I. P. C. and sentenced to 3 years' imprisonment. Both the sentences to run concurrently. The judgment of the trial Court shall be amended accordingly.
H.R. Krishanan, J.
11. I agree.