Bind Basni Prasad, J. - (1.) Between 11 P.M. and the daybreak on the night between the 16th and 17th August 1950, one Bhagwan Das Kalwar aged about 50 years, was murdered by strangulation in a room in the upper storey of Onkar Nath Dharamshala situated in Mohalla Naka Muzaffra in the city of Faizabad. The murder remained unnoticed upto about 10 A.M. in the morning when Smt. Mulha, the wife of Debi Prasad, informed Bhagwan Din, Pujari of the Dharamshala that one of the backdoors of one of the rooms in the occupation of Bhagwan Das was open. Mahadeo, a relative of Bhagwan Das was sent for, and then a party went into the room on the upper storey where Bhagwan Das was found lying dead on the floor. Constable Barkhurdar happened to reach there. He communicated this news to Mahamudul Hasan, Head Constable, who visited the scene and at 1 P.M. he lodged a report at the Kotwali, Faizabad. The report runs as follows: "I, Mahumudul Hasan, Head Constable No. 59/C.P., was informed by Barkhurdar Khan, Constable No. 304, at about 12 noon that while he was on his beat, he had come to know that Bhagwan Das Kalwar had been murdered at Onkar Nath Dharamshala in Naka Muzaffra and his goods had also been stolen. Acting on the information, I reached Naka Muzaffra and learnt from Bhagwan Din Pujari, Musammat Inderpati, daughter of Debi Prasad Kalwar, Bhagwati Prasad and other persons that Shankar Prasad Shukla, a newspaper man, Sheo Bahadur Singh Thakur, a scholar of the Forbes College, Raghunath barber a railway employee, and one fourth man, whose name could not be ascertained, had been seen at the house of Bhagwan Das Kalwar, deceased, last night till about 12 P.M. or 1 A.M. The household goods are lying scattered and he (Bhagwan Das) is lying murdered in the house. Leaving Barkhudrar Khan, Constable at the spot, I have come to make a report."
(2.) Four persons viz., Shambu Nath, Shankar, Sheo Bahadur and Raghunath were sent up by the police for the charge under Section 302 read with Section 34, I. P. C. Learned Sessions Judge acquitted Shambu Nath and Sheo Bahadur and convicted Shankar and Raghunath under Section 302 and sentenced them to death. They prefer this appeal and there is also a reference by the learned Sessions Judge for the confirmation of the death sentence.
(3.) The case rests upon circumstantial evidence and bristles with difficulties. The learned Sessions Judge has based his judgment upon the following facts determined by him: 1. Shankar Prasad, appellant, was with the deceased Bhagwan Das at his shop on the evening of the 16-11-1950, upto 11 P.M. 2. At about midnight there was a knock at the door of Bhagwan Das, the door was opened by someone and two persons one of whom was Raghunath, appellant, entered the house of the deceased. 3. Subsequently late at night a girl by the name of Kumari Inderpati (P. W. 2) who is an inmate of the Dharamshala came out of it to make water and she then saw three persons (Shanker, Raghunath and Shambhu Nath) coming out of the room of Bhagwan Das.;