Point of law : Where an offence like murder is committed in secrecy inside a house, initial burden to establish case would undoubtedly be upon prosecution, but nature and amount of evidence to be led by it to establish charge cannot be of same degree as is required in other cases of circumstantial evidence.

JUDGMENT :

Manish Kumar, J.

1. The present criminal appeal has been preferred against the judgment and order dated 5.6.1982 passed by the III Additional Sessions Judge, Lucknow in Sessions Trial number 298 of 1979 (State versus Bhikha and three others) under section 302/34 of the Indian Penal Code (hereinafter referred to as, the IPC), Police Station Mohanlal Ganj, District Lucknow, whereby the appellant no. 1-Bhikha was convicted under section 302 IPC simplicitor and the other co-accused persons namely Ram Khelawan, Avantika and Ramphal were convicted under section 302 read with section 34 of IPC. All the aforesaid appellants were sentenced to undergo rigorous imprisonment for life.

2. We have heard Sri Nagendra Mohan, learned counsel for the appellants and Sri Umesh Verma, learned Additional Government Advocate appearing for the State respondents and perused the record meticulously.

3. According to the prosecution case, on 01.9.1979, an FIR was lodged under section 302 IPC by the complainant, namely Ram Adhar, PW– 1 mentioning therein that on the occasion of marriage of one Raj Rani, Bhikha i.e. appellant no. 1, had fired shot with his country made pistol, which had hit to one of the Barati causing him injury. Report of that incident was lodged by one Sia Ram (not examined), cousin brother of Ram Adhar PW–1 against the accused appellant no. 1 Bhikha, thus, a case was registered under section 307 Cr.P.C., due to which, Bhikha was keeping enmity with the complainant Ram Adhar and his other relatives. The deceased Phool Chand was originally a resident of village Sarwan Nagar, Police Station Banthra,District Lucknow. Smt. Sarjoo Dei, a widow having no issue (not examined) was the cousin sister (maternal uncle’s daughter) of Ram Adhar PW1. She had brought up Phool Chand (deceased) since his childhood and given her property to him. Due to the said reasons, appellant no. 1 namely Bhikha was keeping enmity with the deceased.

4. It is further stated in the F.I.R. that on the fateful day i.e. 01.09.1979, at about 11 A.M., the deceased Phool Chand accompanying the complainant were returning back from their fields. The Phool Chand deceased was a bit ahead of the complainant. They had to pass through the house of Bhikha appellant no. 1. When the deceased was near to the house of the Bhikha, all the accused appellants i.e. Bhikha armed with gun, Ram Khelawan and Ram Phal carrying Lathi the Avantika having Danda came out of the house of Bhikha and pounced upon the deceased dragging him in the house of Bhikha by exhorting kill him today.

5. On hearing cries of Phool Chand (deceased) and Ram Adhar PW-1, witnesses Ram Karan and Bhajan Lal (both not examined) reached on the spot and by that time Smt. Jamuna PW-2 and Smt. Raj Rani (not examined) niece of Ram Adhaar had also reached to the spot. They saw the alleged incident through window and door of the house of Bhikha. While Phool Chand-deceased was resisting, the accused persons were beating him and thereafter, Ram Khelawan, Avantika and Ramphal caught hold of Phool Chand (deceased) and Bhikha fired on him. In the meantime, Ram Khelawan came out and hit on the lower limb of Smt. Jamuna and thereafter the accused persons ran away.

6. After investigation, a charge sheet was filed on 04.10.1979 against the present appellants. Thereafter the charge against the appellant no. 1 Bhikha was framed under section 302 IPC and charge against the rest of the appellants was framed under Sections 302 read with Section 34 IPC in furtherance of common intention with Bhikha to commit the murder of Phool Chand.

7. The prosecution, in order to bring home the accusation against the appellants had produced two prosecuting witnesses of fact namely Ram Adhar, eye witness/complainant as PW-1 and Smt. Jamuna claiming herself an injured eye witness as PW-2. The prosecution has also produced as many as five formal witnesses namely Dr. R.S. Chaudhary (PW-3), who medically examined the injured witness PW-2, Dr. Ved Prakash Gupta