JUDGMENT

PUNCHHI, J.:— These two Criminal Appeals have common roots and are being disposed of together. They have arisen in the following circumstances:

2. Vinod Kumar, aged about 12 years, was a poor boy of Village Lar, District Deoria. in the State of Uttar Pradesh. He is the victim in the instant crime. On or about July 1, 1968, the said Vinod Kumar was employed by Kapil Deo accused as a domestic help in his house at Village Lar. Kapil Deo, his wife Smt. Sheo Kumari, his son Vidya Sagar, and his brother Ramapati were living together in that house age Lar. All the four , are the accused involved herein. At about 4.00 p.m. on July 16, 1968, Vinod deceased and Vidya Sagar accused were playing with some other boys near the house of Kapil Deo. Kapil Deo and Ramapati on arrival there scolded the boys for playing there and took Vinod Kumar, servant and Vidya Sagar, accused in the house asking the other boys to scatter away. Those boys included Mohan Singh, P.W. 1, Hridyanand, P.W. 2 and Akhilanand, P.W. 3. Despite there being asked to go away, still the boys resumed their play after a while. They then heard the cry of Vinod Kumar and by climbing a grilled window (jangla) of the house of the accused, they could see the crime being committed in another room of the house which had a door ajar making vision possible. Their version was that they had seen Kapil Deo and Ramapati holding Vinod Kumar against the wall of the room and Vidya Sagar cutting the throat of Vinod Kumar with a big knife. The eyewitnesses raised an alarm. Vidya Sagar, accused thereafter came out from the house while wearing an underwear with a blood-stained knife in his hand and thereafter took to his heels. Smt. Sheo Kumari accused closed the doors of the room and the window. In the meantime some people already assembled outside the house tried to apprehend Vidya Sagar accused but having failed to do so, one of them Mohan Singh, P. W. 1 went to Police Station, Lar and lodged the First Information Report. After the necessary investigation and collection of material, the four accused were committed for trial to the Court of Session at Deoria, Uttar Pradesh.

3. At the trial, all the four accused were charged under S. 302, S. 302 read with S. 34, I.P.C. and S. 201 read with S. 34, I.P.C. The cause for charge under S. 201 read with S. 34, I.P.C. was that on interrogation made from Kapil Deo and Ramapati accused they pointed out a trunk, in which the dead body of Vinod Kumar was found contained in a gunny bag, in a room of their house. The trunk contained as well a blood-stained Pyjama of Vidya Sagar.

4. The trial Judge vide his judgment dated October 27, 1970 convicted Vidya Sagar, accused for an offence under S. 302, I.P.C. Kumar deceased and Vidya Sagar accused and the remaining three accused under S. 302 read with S. 34, I. P.C.; sentencing all of them to death. He, however, acquitted all the four accused of the offence under S. 201 read with S. 34, I.P.C.

5. On reference to the High Court for confirmation of the death sentence as well as on appeal by all. the accused, the High Court of Allahabad on April 6, 1971 upheld the conviction of Vidya Sagar, accused for offence under S.302, I.P.C. reducing his sentence to imprisonment for life. The remaining three accused were acquitted of the charge under S. 302 read with S. 34, I.P.C.

6. The matter was brought to this Court by Vidya Sagar, accused in Criminal Appeal No. 236 of 1971 against the aforesaid judgment of the High Court. The State of Uttar Pradesh as well filed Criminal Appeal No. 579 of 1976 against Kapil Deo and Ramapati, accused leaving aside Smt. Sheo Kumari, accused. That appeal on admission ,was ordered to be heard with Criminal Appeal No. 236 of 1971 preferred by Vidya Sagar. Since respondents in Criminal Appeal No. 579 of 1976, being Kapil Deo and Ramapati, could not be served by the time when both the matters came up for disposal on 22-2-1977 before a Bench of this Court, the appeal of Vidya Sagar alone was h