Hon’ble Bharat Bhushan, J.—In this appeal sole surviving appellant Rajmani was convicted under Section 302 I.P.C. read with Section 34 I.P.C. and under Section 201 I.P.C. and sentenced to imprisonment for life and three years rigorous imprisonment in each section respectively alongwith deceased Smt. Ganpati and Ram Surat vide judgment and order dated 19.5.1983 passed by the then Sessions Judge, Basti in S.T. No. 116 of 1981 (State v. Smt. Ganpati and others).

2. Appellants Smt. Ganpati and Ram Surat have died therefore, the appeal filed at their instance stand abated.

3. Background facts in nutshell are as follows:

The sole surviving appellant Rajmani alongwith his parents (Smt. Ganpati and Ram Surat) and sister Jhinkani were charged under Section 302 I.P.C. read with Section 34 I.P.C. and 201 I.P.C. on 22.9.1981. It is stated that on 20.2.1981 P.W. 4 Jugun Chaukidar of village Harpur Tola Sunderdas, P.S. Mahuli a resident of village Ratanpura, P.S. Mahuli heard that deceased Smt. Malti wife of Rajmani, appellant had died of burns. He went to the matrimonial home of Smt. Malti at village Harpur Tola Sunderdas but none of charged persons were present at their house. It is stated that only Tejai, the grand-father of surviving appellant was sitting outside the house. The door of the house was closed from outside. Jugan Chaukidar rushed to the Police Station Mahuli and furnished information about the incident. This oral report was recorded into general diary (G.D.) of P.S. Mahuli at about 6:30 pm. on 20.2.1981 (Exh. Ka-1). Sub Inspector, Uday Narayan Singh P.W. 10 went to the spot alongwith constable Aadya Shankar and others and reached the village Harpur Tola at about 9:30 pm. He went to the house of appellant Rajmani but did not found any person at the house. The house was closed from outside. He could not find the occupants of the house in the village. On next day i.e. on 21.2.1981 Tejai the grand-father of sole appellant contacted the police personnel and took S.I. Udai Narayan Singh to the house and opened the lock of the house from the key which he took out from his pocket. The corpse of Smt. Malti was found inside the house. It was identified by Tejai,the grand-father.

4. The inquest proceedings were conducted. Dead body was sent for the post-mortem. Meanwhile S.I. Sri Ram Adhar Mishra (P.W. 9) had also reached the village. Sri Ram Adhar Mishra was entrusted formal investigation. After autopsy and investigation a charge-sheet was filed against four persons, namely, appellants Rajmani, Ram Surat (father of appellant Rajmani) and Ganpati (his mother) and his sister (Smt. Jhinkani). All of them were tried under Section 302 read with Section 34 I.P.C. and 201 I.P.C. During the course of trial as many as ten witnesses were produced by prosecution out of which four witnesses, namely, Rampati (P.W. 1), Ram Laut (P.W. 2), Udai Raj (P.W. 3) and Jagarnath (P.W. 6) did not support the prosecution story and were in fact declared hostile at the instance of prosecution. The statements of applicants were recorded under Section 313 Cr.P.C. wherein they denied all allegations but refused to produce any oral and documentary evidence in defence.

5. The learned Sessions Judge concluded that deceased Smt. Malti was murdered and that; circumstantial evidence indicates that three accused namely, Rajmani, his father, Ramsurat and his mother Ganpati were responsible for the murder of Smt. Malti. Accused Smt. Jhinkani, the sister of appellant Rajmani was given benefit of doubt despite the fact that evidence against all the four accused persons was identical. The Sessions Judge, therefore, convicted and sentenced appellants, namely, Rajmani, Ramsurat and Ganpati vide judgment and order dated 19.5.1983 as aforesaid. This judgment is under challenge before this Court in this criminal appeal. However appellant Ramsurat and Smt. Ganpati have died, therefore, this Court is only concerned with the appeal of sole surviving appellant Rajmani.

6. Hear