R.K.AGRAWAL, J. - (1.) On 23-4-1994 we had allowed both the appeals and had rejected the reference made by the Additional Sessions Judge, Barabanki for confirming the death sentence, and had passed the following orders : "For the reasons to be recorded later on, the appeal is allowed and the order of conviction and sentence passed by the Sessions Judge is set aside and the reference made by the Sessions Judge is hereby rejected. The accused is in jail. He shall be set at liberty forthwith if he is not wanted in any other case."We are now giving the reasons for the same.
(2.) Accused Babu Ram has been convicted for an, offence under Section 302/149 I.P.C. and has been sentenced to death by the I Addl. Sessions Judge, Barabanki on 29-10-93 for committing murder of his father, mother and brotherin the night of 24/25-11-90, in village Kundelwa, P. S. Mohammadpur, District Barabanki. The case is based on circumstantial evidence and extra judicial confession alleged to have been made by accused Babu Ram.
(3.) Deceased Devi Dayal, deceased Smt. Champa Devi were parents and Sitaram was brother of accused Babu Ram. These three deceased persons were living separately from accused Baburam though in the same house. According to the prosecution accused Babu Ram wanted partition of the property from his father Devi Dayal, who was not agreeable for the same. In the night of 24/25-11-90, Ram Saharey, P.W. 1, uncle of the accused and brother of deceased Devi Dayal, who has got his house near the house of accused, along with his family members were witnessing the T. V., At about 11 in the night they heard cries of Baburam. There upon Ram Saharey along with Jagatram, Ram Sumiram P.W. 2 and others went to the house of the accused, who told them that his parents and brother Sitaram had gone to Mahadeva Mela, but they had not come back and that some miscreants had entered into his house and had taken away his belongings. On this information Ram Saharey and others tried to locate those culprits, but none was visible. They came back to their house as it had become quite late.;