Judgment

FAIZAN UDDIN, J.- The judgment delivered in this appeal will also govern the disposal of Criminal Appeal No. 368 of 1992 which is an appeal preferred through Jail Superintendent by the same convicts against the same judgment which is under challenge in Criminal Appeal No. 367 of 1992.

2. Appellants 2 and 3, namely, Mulo Marik and Bansi Marik are sons of appellant 1, Arjun Marik. The three appellants were charged and tried for murders of Sitaram, his wife Smt Kamakhya Devi and their granddaughter Sugwa Kumari in their house situated at Chaitanya Nath, Jajware Path, Deoghar within the jurisdiction of police station, Deoghar (State of Bihar), in the intervening night of 19-7-1985 and 20-7-1985. It was alleged that the appellants after committing murders of three persons named above committed the robbery of the ornaments, cash and other belongings of the deceased which during the course of investigation were seized from their possession from their house on 20-7-1985. The appellants were, therefore, charged and tried under Sections 302, 394 and 411 of the Penal Code. Learned Additional Sessions Judge, Deoghar convicted the three appellants under Section 302 of the Penal Code and sentenced them to death. The appellants were also convicted under Sections 394 and 411 of the IPC for which they were sentenced to suffer rigorous imprisonment for 10 years and 3 years respectively. The substantive sentences awarded under Sections 394 and 411 were directed to run concurrently. After the conviction and sentence of death the learned Additional Sessions Judgemade a reference to the High Court for confirmation of the death sentence. At the same time the appellants also challenged their conviction and sentence in an appeal before the High Court. The criminal appeal preferred by the appellants was dismissed whereas the sentence of death awarded by the learned Additional Sessions Judge was confirmed by the High Court. On special leave being granted, the three appellants named above have preferred this appeal.

3. The prosecution case as it emerges from a Fard-beyan, Exh. 3 made by the informant, Surnath Jha, PW 6 one of the nephews of the deceased Sitaram is that deceased Sitaram and his deceased wife, Kamakhya Devi were issueless and, therefore, they had kept with them their granddaughter deceased Kumari Sugwa. The deceased Sitaram was carrying moneylending business and amongst others had advanced loan to the appellant, Arjun Marik. On 19-7-1985 between 7 and 8 p.m. the appellant Arjun Marik accompanied with his two sons appellants 2 and 3, namely, Bansi Marik and Mulo Marik came to the house of Sitaram to raise further loan to purchase buffaloes. The deceased Sitaram was not agreeable to advance him further loan as he had advanced him Rs 10,000 about two months back for purchasing the buffaloes. Sitaram, therefore, insisted upon the appellant Arjun Marik to settle the old accounts first. But Arjun Marik continued to pursuade him to advance the loan on which Sitaram told him that his accounts would be settled next morning. It is said that the three appellants stayed at the house of the deceased Sitaram and the deceased Kumari Sugwa served them meals in the night. The three appellants were lodged in a room on the upper storey of the house for the overnight stay while Sitaram slept on a cot in the verandah adjacent to the said room. The deceased Kamakhya Devi, wife of Sitaram and his granddaughter, Kumari Sugwa slept in the verandah on the ground floor. Thereafter, the informant Surnath Jha, PW 6 went away to his own house situated just adjacent to the house of Sitaram.

4. Next day early morning at about 6 a.m. when Kumari Manju Devi, PW 7 and some other girls went to the house of Sitaram to fetch water from the water tap they witnessed Smt Kamakhya Devi and Kumari Sugwa lying dead in a pool of blood and, therefore, they raised an alarm attracting Murlidhar Jha, PW 1, Govind Charan Jha, PW 2, Sushil Prasad Jha, PW 4, Surnath Jha, PW 6 and Mangl