Judgment

SHAH, J. :

The appellant Kirpal Singh and his two brothers Arjun Singh and Sarwan Singh, were tried by the Sessions Judge, Pilibhit for causing the death of one Karam Singh with gunshot injuries in the evening of March 26, 1961 at Village Shanti Nagar. The Sessions Judge acquitted Arjun Singh and Sarwan Singh and convicted the appellant Kirpal Singh of the offence charged against him and sentenced him to suffer the penalty of death subject to confirmation by the High Court. The High Court of Allahabad confirmed the order of conviction and sentence. With special leave, Kirpal Singh has appealed to this Court.

2. The case for the prosecution was as follows:

The appellant and his father-in-law Rakkha Singh were refugees from West Pakistan. A block of agricultural land, allotted by the Government to Rakkha Singh and the appellant was partitioned but no boundary marks were erected on the line dividing the lands. In December 1960 there was a dispute between Rakkha Singh on the one hand and the appellant and his brothers on the other about the harvesting of sugarcane planted in the land. This dispute was settled on the intervention of one Sardar Ajit Singh, and Rakkha Singh agreed to give seven hundred maunds of sugarcane to the appellant and his brothers. The appellant and his brothers went to the house of Rakkha Singh on March 22, 1961 and complained that they were not given four hundred maunds of sugarcane out of the seven hundred maunds promised to them. There was a quarrel on that occasion between Karam Singh eldest son of Rakkha Singh and the appellant, the former saying that the appellant and his brothers were behaving like dishonest persons, Rakkha Singh intervened and nothing untoward happened on that occasion. On March 26, 1961 at about 6 p. m. when Rakkha Singh and his two sons Karam Singh and Manjit Singh and their neighbour Sardar Anokh Singh were sitting in a thatched hut, the appellant armed with a gun and his two brothers armed with lathis arrived near the hut, and appellant shouted to Karam Singh asking him to come out of the hut. On Karam Singh s emerging from the hut appellant told him that since he (Karam Singh) "did not settle the dispute regarding the sugarcane he would settle his account just then," and opened fire causing injuries to Karam Singh on the chest which resulted in death instantaneously. On hearing the report of gun fire Rakkha Singh, his son Manjit Singh and Sardar Anokh Singh came out of the thatched hut. Manjit Singh tried to catch hold of the appellant and his brothers but without success Rakkha Singh then went to the police station Puranpur and lodged the first information at 7-45 a. m. At the trial of the appellant and his brothers before the Court of Session, Manjit Singh, Anokh Singh and Rakkha Singh were examined as persons who were present at the scene of offence and witnessed the assault on Karam Singh. Manjit Singh and Anokh Singh however did not support the prosecution case. They stated that at about 8 or 9 p. m. on March 26, 1961 when they were in their respective house they heard report of gun fire and on coming out came to learn from some person that Karam Singh was fired upon by some Sardar who was wearing a mask. The witnesses were cross examined by the prosecutor with leave of the Court in the light of their statements recorded by the sub-inspector of police in the course of his investigation but they denied having made the statements that the appellant and his two brothers had come to Shanti Nagar at 6 p. m. on the day of occurrence and that the appellant had killed Karam Singh by causing him gunshot injuries. But Rakkha Singh supported the prosecution case. He spoke about the dispute about sugarcane, .and also about the quarrel between Karam Singh and the appellant on March 22, 1961. He then stated that on March 26, 1961 at about 6 p.m. the appellant and his two brothers had come near his hut, that the appellant had called out Karam Singh and after shouting that as Karam Si