V. K. JAIN, J.

(1) This appeal is directed against the judgment dated 23rd April 1997, and Order on Sentence dated 26th April 1997, whereby the appellants were convicted under Section 302 and 392 of IPC read with Section 34 thereof, and were sentenced to undergo imprisonment for life and to pay fine of Rs 1000/- each or to undergo SI for one month each in default under Section 302 IPC and were further sentenced to undergo R.I. for three years each under Section 392/34 of IPC. The co-accused of the appellants, namely Ramesh and Hira Singh were convicted under Section 411 of IPC and were sentenced to undergo R.I. for three years each.

(2) Deceased Dr. R.N. Berry and his wife Rama Berry, who were residing in House No. 145 Jor Bagh, New Delhi, were found murdered in the morning of 2nd February 1987. The appellant Gopal Singh was at that time working as a domestic servant with them whereas the appellant Bachchi Singh, who is the brother of Gopal Singh, was an ex servant of Dr. Berry and was removed from service, when he was found committing theft from the house. The case of the prosecution is that the appellants and their co-accused were party to a criminal conspiracy to commit murder of Dr. R. N. Berry and his wife Smt.Rama Berry and commit robbery of valuables from their house and it was pursuant to that conspiracy that the appellants committed murder of the deceased persons in the night intervening 1st/2nd February 1987 and also committed robbery of a number of articles from the house of Berrys. There is no ocular evidence of the appellants having committed the murder of Berrys and robbery of valuables from their house. The case of the prosecution against them rests on the following circumstantial evidence:- (i) The appellant Gopal Singh was working as a substitute domestic servant with Berrys at the time the murders and robbery were committed. (ii) The appellant Gopal Singh and PW-8 Pratap Singh, another domestic servant of the Berrys, were the only persons present in the house in the night intervening 1st/2nd February 1987 and since there was no evidence of any forced entry in the house, the murders and robbery could not have been committed without either Pratap Singh or the appellant Gopal Singh being a party to it. (iii) The appellant Gopal Singh was found awake and standing when PW-8 Pratap Singh got up in the night intervening lst/2nd February 1987 arid when questioned as to why he was standing, he told PW-8 that he would smoke and take a stroll. (iv) Burnt pieces of cigarette were found by police in the house of Berrys. (v) The appellant Bachchi Singh had earlier been found committing theft in the house and was removed from service by Dr. Berry. (vi) While in police custody, the appellant Gopal Singh disclosed to the police that certain articles, which later on were found to be articles stolen from the house of Berrys at the time of their murder, had been kept by him in the quarter of his co-accused Ramesh Chand. (vii) The stolen articles were recovered from the possession of both the appellants soon after the theft. Circumstance No. (i)

(3) PW-8 Pratap Singh, who was the other domestic servant employed by Berrys and was in their employment for about 45 years before they were murdered came in the witness box as PW-8 and stated that since the other domestic servant in the house namely Balwant Singh had gone on leave, the appellant Gopal Singh was working in his place. In his statement under Section 313 of Cr. P.C. the appellant Gopal Singh admitted that he was working as domestic servant with Berrys at House No. 145, Jor Bagh, for about two months. Thus it is an admitted fact that the appellant Gopal Singh was working with Berrys when this incident took place. Circumstance No. (ii), (iii) and (iv).

(4) PRATAP Singh, when he came in the witness box, stated that after taking meal at about 9.30/10 p.m. he and Gopal Singh had gone to sleep after locking the gallery. Thus, according to him no one other than he, the appel