Judgment

KHANNA, J.:- Kali Ram (40) was tried in the court of Sessions Judge, Simla and Sirmur Districts for an offence under Section 302 Indian Penal Code for causing the death of Dhianu (60) and the latter s daughter Nanti (40). Charge was also framed against the accused under Section 392 read with Section 397 Indian Penal Code for having at the time of the occurrence committed robbery. The learned Sessions Judge convicted the accused under Section 302 Indian Penal Code and sentenced him to death. On appeal and reference, the High Court of Himachal Pradesh affirmed the conviction and the sentence of death. The accused thereafter came up to this Court in appeal by special leave.

2. The prosecution case is that Dhianu deceased was suffering from leprosy. This disease had resulted in partially destroying the hands and feet of Dhianu. For about a couple of months before the present occurrence, Nanti, daughter of Dhianu. had been staying with him in his house in village Amrahi. There was no other house near he house of Dhianu. Dhianu did business of money lending on the security of ornaments.

3. The accused. it is stated, is a previous convict having been convicted in cases under Sections 380, 454 and 457 Indian Penal Code in the years 1955, 1957, 1960, 1962 and 1963. was sentenced to undergo various terms of imprisonment in those cases. The last sentence of imprisonment undergone by the accused was from December 17, 1963 to November 7, 1967 on which day he was released from Central Jail, Nahan. On August 1, 1968 the police presented a challan against the accused under Section 110 of the Code of Criminal Procedure in the court of District Magistrate, Nahan. Notice under Section 112 of the Code of Criminal Procedure was then issued to the accused. It was served upon him for September 16. 1968. As the notice was not received back, the District Magistrate adjourned the case to October 16, 1968 and thereafter to November 6, 1968.

4. On 13, Asuj, which corresponds to September 28, 1968 it is stated the accused went at evening time to the shop of Parma Nand (P.W. 14) in village Paliara, at a distance of three or four miles from the house of Dhianu. The accused spent the night with Parma Nand. On the morning of 14 Asuj, corresponding to September 29, 1968, the accused gave Rs. 18 to Parma Nand for purchase of liquor and fish. Fish was thereafter purchased by Parma Nand. The accused and Parma Nand took liquor and fish on the evening of 14 Asuj. The accused then told Parma Nand that he had to meet Dhianu of village Amrahi and that Parma Nand should serve the evening meals to him. After taking his meals, the accused left for the house of Dhianu deceased. The way to village Amrahi of Dhianu was shown to the accused by Parma Nand. At about midnight hour on that night the accused shouted to Parma Nand from outside the shop Parma Nand asked the accused to come in but the latter replied that he had some work. The accused thereafter went away.

5. Dhianu deceased had two nephews. Hira Singh (P. W. 1) and Mehru (PW 10), who lived in village Lohara at a distance of half a mile from the house of Dhianu. On October 1. 1968 Mehru went to a Gharat (flour grinding place). On the way back Mehru did not see the cattle of Dhianu grazing in the field. On reaching home, Mehru told his brother Hira Singh that he had not seen Dhianu s cattle. Hira Singh and Mehru then went to the house of Dhianu and found Dhianu and Nanti lying murdered in the courtyard of their house. The dead bodies were covered with cloth. On removing the cloth. Hira Singh and Mehru noticed injuries on the heads of Dhianu and Nanti. The bodies were in a state of decomposition. The door of the residential room was open and the goods were lying scattered. Hira Singh informed PW 31 Udey Singh, Pradhan of the Gram Panchayat about what he had seen. On the advice of the Pradhan, Hira Singh went with village chowkidar to police station, Renuka, at a distance of six miles from the place of occurrence, a