Judgement

JAGANNADHADAS J. This is an appeal by special leave from the judgment of the High Court at Allahabad. The sole appellant before us has been convicted by the Sessions Court under Ss. 148, 307 and 302, Penal code, and sentenced to rigorous imprisonment for two and a half years under S. 148, to transportation for life under S. 307, and to death under S. 302. These convictions and sentences have been confirmed by the High Court. At the trial there were 19 other accused along with this appellant. All of them were convicted and sentenced by the trial court under various sections of the Indian Penal Code. On appeal ten out of them were acquitted by the High Court. In respect of the remaining nine besides this appellant, the convictions and sentences were partially modified. But this appeal is not concerned with them.

The incident in the course of which these offends are said to have been committed took place in the evening of 4-11-1953, shortly before sunset in a village called Sonari in the district Fatehpur, Uttar Pradesh. During that incident two persons, Bisheshwar and Surajdin, are alleged to have received gun-shot wounds. Bisheshwar survived but Surajdin died on the spot. The back-ground for this incident was as follows: In the village of Sonari there were two factions between, whom there was prior history of enmity resulting in criminal prosecutions by each against the other. It may be broadly stated that the accused persons in the present case belong to one party and the prosecution witnesses as well as the deceased person belong to the other party.

In the year 1946 there was rioting between them in which two of the present prosecution witnesses, were assaulted. This led to a criminal case against some of the present accused and others, in which they were convicted and sentenced, the members of the other party figuring therein as prosecution witnesses. Again, just five months prior to the present incident, there was another rioting in the village between these two groups. In that, one Ram Bharosey a member of the party of the present accused was killed. As a result 15 persons of the opposite-party (i.e. the party of the present prosecution witnesses) were prosecuted. By the date of this incident that case had been committed to the session but the sessions trial had not started.

According to the prosecution case, the occasion for the incident, which concerns us, was that some of the present accused wanted to persuade or prevent a member of the opposite party by name, Bisheshwar-P. W. 2 in this case-from doing what is called pairavi on behalf of the accused in that case, Pairavi is said to be the active assistance in religion to Court proceedings which a friend or agent renders to a litigant) While, Bisheshwar, P. W. 2, and two others Bhurey Lal. P. W. 1, and Ram Saran, P. W. 3, were sitting in front of the house of Ram Saran on the evening of 4-1-1953, the present appellant along with the other accused are said to have turned up before them, lathies in hand. The appellant is said to have asked Bishwshwar to give up doing pairavis in the then pending case on behalf of the accused therein. Bisheshwar having declined to do so, the appellant is said to have pulled out a pistol from his inner pocket and fired at him, as a result of which he fell down on the ground.

P. Ws. 2 and 3 are said to have dragged him inside the house & chained the door from inside, run up the roof and raised an alarm, whereupon a number of persons of the other party are said to have come running up. One of the persons who so came running up was Surajdin who was cutting fodder at the house of Bhurey Lal, P. W. I. The appellant is said to have fired at him with the pistol. He fell down and died on the spot. Another person named Gaya Prasad is said to have received some minor lathi injuries. Accused party thereafter is said to have run away. First information of the report was lodged by Bhurey Lal, P. W. 1, near about 12 that very night at the polic