Judgment

DUA, J.:- These two appeals by special leave arise out of a joint trial of the present appellants and Jagdish and Sugriv. All the four accused were convicted by the trial Court; the present appellants were sentenced to death under Section 302 read with Section 34, Indian Penal Code and Jagdish and Sugriv to life imprisonment under Section 302 read with Section 109, Indian Penal Code. They challenged their conviction by separate appeals to the Allahabad High Court. By means of a common judgment the High Court dismissed the appeal of the present appellants (Crl. App. No. 2623 of 1968) and allowed that of their co-accused Jagdish and Sugriv (Crl. App. No. 2648 of 1968). The sentence of death imposed on the present appellants under Section 302, Indian Penal Code for the murder of Lala Hazarilal was confirmed.

2. According to the prosecution story Jagdish and Sugriv related to each other as cousins belonged to village Bidrika. They used to harass the poor inhabitants of that village whereas deceased Hazarilal used to espouse their cause. As a result, there was not much love lost between Jagdish and Sugriv on the one side and Hazarilal on the other. Some years ago Jagdish, along with some others, was prosecuted for forging accounts of a Co-operative Society and was found guilty by the Assistant Sessions Judge, though released on probation under the U. P. First Offenders Probation Act. Bhoodev, at whose instance, that prosecution was initiated presented a revision petition in the High Court against the order of the Assistant Sessions Judge challenging the benefit given to Jagdish under the U. P. First Offenders Probation Act. The High Court allowed the revision on July 26, 1967 and imposed on Jagdish a substantive sentence of rigorous imprisonment for two years. Bhoodev had the support of Hazarilal in the trial Court and the revision to the High Court was also preferred by him at the instance of Hazarilal. This further enraged Jagdish and Sugriv and Jagdish is stated to have threatened Hazarilal with death about ten days before his murder. This happened before Jagdish was taken into custody pursuant to the order of the High Court imposing on him the sentence of imprisonment. This was alleged to be the immediate motive for Hazarilal s murder. In 1962 also Jagdish and Sugriv had been prosecuted by Hazarilal under Section 452/326 and Section 147, Indian Penal Code but they were acquitted. Ever since then, according to the prosecution, Jagdish and Sugriv had been harbouring ill feelings towards Hazarilal and planning to have him murdered through hired assasins. On September 11, 1967, Ghasiuddin (P. W. 2) is stated to have gone to the house of Jagdish and saw Jagdish and Sugriv in the company of four unknown persons and over-heard Jagdish saying that the said four persons had left the job unfinished though they had visited the village often and telling them that the balance would be paid to them only after the job was accomplished. The following day at about 10 a.m. when it was drizzling Hazarilal was sitting in his Gher also described as Nohra on a cot and his brother Inderjit (P. W. 1) and Kanwar Sen (P. W. 3) were squatting on a heap of fodder nearby. They were all sitting in the Duari because that was the only place which provided protection against rain. Suddenly four unknown persons entered the Nohra through the Duari. Two of them caught hold of Inderjit and Kanwar Sen, one of them sat on the cot of Hazarilal and pressed his legs and he fourth who was carrying a red jhola in his hand, took out a pistol from the jhola and fired at Hajarilal from point blank range. Hazarilal fell down. The fourth man reloaded his pistol and fired another shot which hit Hazarilal on the chest killing him instantaneously. Inderjit and Kanwar Sen raised alarm. On hearing their alarm and the sound of pistol fire, Ram Singh, Imam Khan and Ranchor (P. W. 4) came to the scene of occurrence and saw the four assailants running away from the Nohra. Acc