Judgement

SARKARIA, J.:- Ilyas aged 16 years, has preferred this appeal by special leave against the judgment of the High Court of Allahabad whereby his conviction and sentence of life imprisonment under Section 302/34, Penal Code was maintained.

2. The facts are these:-

Nithu Singh of village Bhainsi Police Station Khatauli was a sonless old man of 70 years. He had two daughters, named Smt. Qabooli (P.W.6) and Smt. Harphooli. Smt. Qabooli was residing with her father in this village for a few months preceding the occurrence in question. On the night between the 21st and 22nd Januay, 1968, Nathu Singh deceased was asleep in his Dukarya (two door room) while his daughter, Smt. Qabooli, was sleeping in the tethri of the house separated by a countyard from the Dukarya. At about 2 or 2.30 a.m. she woke up on hearing a noise. She thought that their servant had come to take the cart. She called her servant by name. She at the same time saw one or two strangers moving inside the room. She raised an alarm, but, on account of fright recoiled into her apartment of the house. After about half an hour, she heard the voices of the villagers. Reassured, she came out to the Dukarya and found Ilyas appellant and his co-accused Mahabir in the custody of the witnesses.

3. The alarm which she had raised earlier, had attracted the villagers viz., Gyan Singh (P.W.1), Ved Singh (P.W.9) and Mangat Singh (P.W.5) and others to the house. These persons saw the appellant and his companions Mahabir, Ranpal, Ram Swarup and Jai Prakash was strangulating Nathu with a safa; Ranpal accused was procuring his thumb impression on a sheet of paper. Ilyas appellant was holding Nathu s hand and helping Ranpal. Mahabir and Ram Swarup accused were holding the feet of Nathu. The witnesses challenged the miscreants. Satya Prakash, who was armed with a gun, scared them away. Ranpal, Satya Prakash, Jai Prakash and Ram Swarup succeeded in running away Mahabir and Ilyas were however, caught by Gyan Singh and the other prosecution witnesses. The witnesses then saw that Nathu was dead. The left thumb of the deceased was found smeared with ink.

4. Ved Singh (P.W.9) wrote a note and sent it to the Police Station, Khatauli, two miles away, through one Qabool Singh. On receiving this note the case was registered at 3-45 a.m. in the Police Station. Brahmanand Sharma, reached the scene of occurrence at 4.45 a.m. He held the inquest and interrogated Gyan Singh (P.W.1). He interrogated P. W. 8 Mangat and Maangey. He took over the custody of Mahabir and Ilyas. He searched for the other accused persons but could not find them. Satya Prakash and Ranpal surrendered in court on January 23, 1968. Jai Prakash and Ram Swarup Absconded and were proceeded against under Sections 88 and 87 of the Criminal Procedure Code.

5. The trial Court convicted Satya Prakash under Section 302 and sentenced him to death. It convicted Ilyas appellant, Mahabir and Ranpal under Section 302 read with Section 149. Penal Code and sentenced each of them to imprisonment for life. They were further convicted under Section 147 Penal Code.

6. On appeal by the convicted the High Court maintained the conviction of Ilyas and Mahabir but acquitted Satya Prakash and Rampal. Hence this appeal by Ilyas Mahabir has not appealed.

7. The plea of the accused in his examination under Section 342, Cr. P. C. was one of denial of the prosecution case. He pleaded innocence. He said that he was plying rickshaw on hire. He had brought Mahabir in his rickshaw on hire from Khatauli to Bhainsi. He was waiting with his rickshaw on the road to collect his hiring charges. Villagers on suspiction caught him on the road and seized his rickshaw. They gave him a beating and confined him in the kotha. He and his rickshaw were taken to the Police Station next morning.

8. Appellant is a rickshaw puller by occupation and is a resident of village Jaooda, Police station Kotwali.

9. At the trial the prosecution examined three eye-witnesses, namely, Gyan Singh (