Judgment

 The appellant Nirmal Kumar alias Goggy was tried along with one Shyam Lal and four others for offences punishable under Sections 148, 302 read with Section 149, 201 and 120B read with Section 302 and 449 of Indian Penal Code. The learned Second Additional Sessions Judge convicted the appellant and Shyam Lal under Section 302 read with Section 120B, I.P.C. and sentenced the appellant to be hanged till death and the other accused Shyam Lal to undergo R.I. for life and to pay a fine of Rs. 5,000/ -. They were also sentenced to some amount of fine and various terms of imprisonment under other counts. Both of them preferred appeals to the High Court and a reference was also made for confirmation of the death sentence. By a common judgment the High Court confirmed the convictions and sentences awarded by the trial Court. Shyam Lal has not preferred any appeal to this Court. It is only Nirmal Kumar, the present appellant who has preferred this appeal pursuant to the special leave granted by this Court.

2. The gist of accusation against the appellant and other accused was that on the intervening night of 14th and 15th February, 1983 they committed the murder of five persons inside the family house of the deceased situated in Mohalla Acharya Tola in the town of Lakhimpur-Kheri, a district headquarter in the State of U.P. Among the five persons killed, two were children. Roop Rani, one of the deceased was aged 60 years and was in possession of some properties. The appellant is the son of Lallu Ram who was also one of the accused. Smt. Surkhawati, another accused is the daughter of Lallu Ram. Shyam Lal, one of the accused is the real brother of Lallu Ram and uncle of Nirmal Kumar. Pushpa Devi, another accused is the wife of the appellant. Sitara Devi, another accused in the case is the daughter of Ram Lal, another brother of Lallu Ram and Shyam Lal. Ram Lal died before the trial commenced. Shyam Lal and Lallu Ram had two more brothers namely Gaya Prasad and Raghubir Prasad: Gaya Prasad died long time.back. Roop Rani who was one of the deceased, was the widow of Gaya Prasad. Gaya Prasad and Smt. Roop Rani had no child. The other brother Raghubir Prasad is also said to have died long back. His widow Smt. Shiv Rani and three children Naresh, Mahesh and Dinesh were living in a separate house just in front of the house where the occurrence took place. Smt. Shiv Rani appeared as a witness as P.W. 4. Another deceased Dwarika Prasad was connected with the family of Roop Rani as her cousin brother. After the death of her husband, Roop Rani, out of love and affection, brought him to live with her and also helped him financially to set up a tea shop. Because of this, accused persons who were already in possession of considerable agricultural land, had apprehension that she would give away the property to Dwarika Prasad and his family members. This is said to be the underlined motive for the commission of the offence. Both the Courts below have held that there was motive to commit the murders. On the night of occurrence it is stated that all the five deceased persons and P.W. 3, daughter of Dwarika Prasad, aged about seven years, were sleeping in the house. A lantern was burning the accused persons are alleged to have into the house from the front portion and inflicted injuries on all the five deceased persons and killed them. P.W. 3 saw the occurrence in the light of the lantern. She named only three persons namely the appellant, Shyam Lal and Ram Lal before the trial Court. Chandra Shekhar, adovate, who was living in the neighbourhood, on hearing the cries, visited the place of occurrence and found five dead bodies. He went to the Police Station and gave a report to the S. H.O. who registered the case. In the report no names are mentioned. The S. H. 0. Reached the scene of occurrence and according to him, he recorded the statement of P.W. 3, the child witness, held the inquest, prepared the site plan and sent the dead bodies for post-morte