Hidayatullah M. C.J.I.

(1) THE appellant Bharat has been convicted under S. 302 of the Indian Penal Code and sentenced to death by the Sessions Judge, Gorakhpur and his conviction and sentence have been maintained by the High court of Allahabad. He appeals to this court by a special leave.

(2) ON the night following 10/12/1967, between the hours of 7 and 10 p.m., in Mohalla Basharatpur, P. S. Cantt. Gorakhpur, three persons were murdered. They were Sheo Dhan, Smt. Bhagwani and Din Dayal The appellant is the son of Sheo Dhan and Smt. Bhagwani and Din Dayal was his brother. The appellant was charged with the commission of these offences and has been found guilty and sentenced to death. Sheo Dhan had four sons. Of these, deceased Din Dayal was the youngest. Besides the appellant Bharat, there were two other sons Ram Bilas and Mahadeo. Din Dayal used to live with the parents in the family house at Basharatpur. Ram Bilas was also staying in the family. Mahadeo was residing in another house opposite Murarka Mills where he had a shop. Bharat used to live with Mahadeo. Mahadeo and Bharat were married. Mahadeos wife had given birth to a child a few days before the occurrence and Bharats wife had gone over to Mahadeos house to help.

(3) THE prosecution case is that Bharat was unemployed and his mother Smt. Bhagwani used to tell him to get employed and also to threaten him that she would give the property to the youngest son Din Dayal who appeared to be the mothers favourite. The prosecution suggests that this was the motive which prompted Bharat to do away with the parents and Din Dayal. On the night of the 10th Ram Bilas had gone away to the market to make some purchases. The offence was committed on victims who must have been sleeping, because all three of them had their heads fractured with blows of a pickaxe belonging to the family. There was no evidence of anything having been stolen, nor was there any evidence that any outsider had made an ingress. The evidence disclosed that near about the time of the commission of the offence, Bharat was seen in the neighbourhood of the house and boarded a rickshaw from there. The offence was not discovered till after the return of Ram Bilas and on discovering this triple murder, he ran to the house of Sugriva (P. W. 4). Sugriva and one other went to Mahadeo. They woke up Mahadeo. Bharats wife advised Mahadeo not to go alone to Basharatpur house and asked him instead to go to her parents house and take people from there. Mahadeo went to the house of Bharats father-in-law. All the people were at the cinema. He waited. When they returned a car was procured and he returned to Mahadeos house. Bharat who had also returned from the cinema was with them. He detained them while he himself went into the house and changed his clothes, then got into the car and went to the house of his parents. Bharat is literate and so the first information report was dictated to him and it was signed by Mahadeo and Bharat and was sent to the police station house. Till then, it appeared as if the offence was committed by some outsider. Later the police suspected Bharat and arrested him. Bharat then made a statement about his clothes and they were duly seized. The bushcoat which he was wearing on the night in question had been put by him under a tap. His trousers were found inside a box. The police seized these garments and sent them to the chemical examiner. The bushcoat answered the Benzidine test for blood but it was not confirmed spectroscopically. Later it was confirmed by the Serologist that it was not stained with blood. The trouser was found to be stained with blood, but the origin could not be discovered as blood had disintegrated.

(4) ON 12/12/1967, Bharat was placed before a First Class Magistrate for recording his confession. The Magistrate remanded Bharat to the judicial lock-up and on the 13th, he was called from the judicial lock-up and was questioned by the Magistrate, whether he