The burden of proof on the accused to explain incriminating circumstances and the importance of evidence such as the source of light and recovery of items in establishing guilt.

JUDGMENT :

1. Heard Shri Rajesh Kumar Singh, Amicus Curiae for the sole appellant, Ratna and Shri Pankaj Saxena, learned AGA for the State.

2. The appeal is directed against the judgment and order dated 11.04.1996 passed by the Xth Additional Sessions Judge, Aligarh in Sessions Trial No.860 of 1993 under Section 302, 394, 412 IPC, Police Station Banna Devi, District Aligarh, whereby the appellant has been convicted under Sections 302, 394 IPC and sentenced to life imprisonment for the offence under Section 302 IPC and for the offence under Section 304 IPC, he has been sentenced to seven years rigorous imprisonment. Both the sentences to run concurrently.

3. The first information report lodged by one Pappi was that one Ram Babu and two other persons came to her house on 07.03.1993 at about 9 p.m. Ram Babu is also a rickshaw puller working with her husband and is also her distant nephew. On that date and time, her husband was not at home having gone to his maternal uncles place. On the asking of Rambabu, the first informant was cooked food for the three persons. After having this food, they lay down in the courtyard. At this time, the mother-in-law of the first informant was sleeping in a room adjacent to the court yard while the first informant alongwith her children went to sleep on the roof. At about 02.30 a.m., the first informant woke up on account of a slight drizzle, when she heard the sound of her mother-in-law and went to investigate. Her mother-in-law was lying on cot and was being held by the appellant and two others. On a hue & cry being raised by the informant, three persons escaped but were seen by some of the neighbours, who had arrived on the spot in the light from the electric pole. The first informant came back to the room and found her mother-in-law dead. She also discovered that the gold ornament and silver ornaments worn by her mother-in-law had been looted away by the accused, two unknown persons mentioned in the first information report were found to be Satto and Ratna. All three were convicted by the trial Court.

4. The other two appellant, namely, Ram Babu and Satto are dead and the Appeal No.748 of 1996 filed on their behalf have been ordered to abate.

5. The prosecution in order to prove its case examined as many as 14 prosecution witnesses.

6. PW-1, Pappi, the first informant and the daughter-in-law of the deceased.

7. PW-2, Chunni Lal is the neighbour of the first informant and her husband, Pappu. He was produced to prove the fact that three accused were present in the house of the first informant at about 9 to 9.30 p.m. and were seen by this witness when he came looking for her husband and had been informed that Pappu had gone to his maternal uncles house.

8. In his cross-examination, he has further stated that he had heard cries of the first informant at 2.30 a.m. and went to her house. An electric bulb was burning on the pole in front of the house of the first informant and in its light, he has seen three accused emerging from the house of the first informant and was informed that the accused had taken away the ornaments worn by the deceased. He had identified the accused in test a identification parade in jail. The unnamed accused were not known to him. He knew only Ram Babu, who was a rickshaw puller and a frequent visitor to the house of the first informant. He has also stated that his house is adjacent to that of the first informant. Upon hearing the shouts, he and Raghunandan, the scribe of the first information report, were the first to reach the house of the appellant.

9. During cross-examination on behalf of the appellant, Ratna, this witness has expressed ignorance that Ram Babus' grand daughter is married to his parental grand son. He has also stated that only a wall separates his house to that of the first informant. On the night of the incident, Chetan had some work with the husband of the informant and the witness had accompanied Chetan to the house of the first informant. They had c