Judgment

SHAH, J. (For himself and S. K. Das and Kapur, JJ.) : The Civil and Sessions Judge, Gyanpur, convicted Deoman Upadhyaya - respondent to this appeal - of intentionally causing the death of the one Sukhdei in the early hours of 19-6-1958, at village Anandadih District Varanasi and sentenced him to death subject to confirmation by the High Court. The order of conviction and sentence was set aside by the High Court of Judicature at Allahabad. Against that order of acquittal, the State of Uttar Pradesh has appealed to this Court with a certificate granted by the High Court.

2. Deoman was married to one Dulari. Dulari s parents had died in her infancy and she was brought up by Sukhdei, her cousin. Sukhdei gifted certain agricultural lands inherited by her from her father to Dulari. The lands gifted to Dulari and the lands of Sukhdei were cultivated by Mahabir, uncle of Deoman. Mahabir and Deoman entered into negotiations for the sale of some of these lands situated at village anandadih, but Sukhdei refused to agree to the proposed sale. According to the case of the prosecution, in the evening of 18-6-1958, there was an altercation between Deoman and Sukhdei, Deoman slapped Sukhdei on her face and threatened that he would smash her face. Early in the morning of June 19, Deoman made a murderous assault with a gandasa (which was borrowed by him from one Mahesh) upon Sukhdei who was sleeping in the courtyard near her house and killed her on the spot, and thereafter, he threw the gandasa into the village tank, washed himself and absconded from the village. He was arrested in the afternoon of the 20th near the village Manapur. On June 21, he offered to hand over the gandasa which he said, he had thrown in the village tank, and in the presence of the investigating officer and certain witnesses, he waded into the tank and took out a gandasa, which, on examination by the Serologist, was found to be stained with human blood.

3. Deoman was tried for the murder of Sukhdei before the court of Session at Gyanpur. The trial Judge, on a consideration of the evidence led by the prosecution, held the following facts proved:

(a) In the evening of June 19, 1958, there was an altercation between Sukhdei and Deoman over the proposed transfer of lands in village Anandadih and in the course of the altercation, Deoman slapped Sukhdei and threatened her that he would smash her "mouth" (face).

(b) In the evening of June 18, 1958, Deoman borrowed a gandasa (Ex. 1) from one Mahesh.

(c) Before day-break on June 19, 1958, Deoman was seen by a witness for the prosecution hurrying towards the tank and shortly thereafter he was seen by another witness taking his bath in the tank.

(d) Deoman absconded immediately thereafter and was not to be found at Anandadih on June 19, 1958.

(e) That on June 21, 1958, Deoman, in the presence of the investigating officer and two witnesses, offered to hand over the gandasa which he said he had thrown into a tank, and thereafter he led the officer and the witnesses to the tank at Anandadih and in their presence waded into the tank and fetched the gandasa (Ex. 1) out of the water. This gandasa was found by the Chemical Examiner and serologist to be stained with human blood.

4. In the view of the Sessions Judge, on the facts found, the only irresistible conclusion was that Deoman had committed the murder of Sukhdei early in the morning of June 19, 1958, at Anandadih. He observed.

"The conduct of the accused (Deoman) as appearing from the movements disclosed by him, when taken in conjunction with the recovery at his instance of the gandasa stained with human blood, which gandasa had been borrowed only in the evening preceding the brutal hacking of Sukhdei, leaves no room for doubt that Deoman and no other person was responsible for this calculated and cold-blooded murder."

At the hearing of the reference made by the Court of Session for confirmation of sentence and the appeal filed by Deoman before the High Court at Allahabad, it was co