Judgment

SIKRI, J.:- This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad confirming conviction of the two appellants by the Sessions Judge Mainpuri, under Section 302/34 of the Indian Penal Code. Appellant Jadunath Singh was sentenced to death by the Sessions Judge and appellant Girand Singh was sentenced to undergo imprisonment for life.

2. In order to appreciate the points raised before us by the learned counsel for the appellant it is necessary to state a few facts. It is alleged against the appellants that on February 26, 1968 at about 7.30 a. m., in furtherance of their common intention, they murdered one Ram Swarup Pandey by repeatedly stabbing him to death, when he was passing on the Grand Trunk Board in the town of Bewar to catch a truck. As many as 34 injuries were found on the deceased at the post-mortem conducted on his body on the same day at about 3 p.m.

3. The prosecution case in brief is as follows. It is common ground that there was great enmity between the deceased and Laturi Ahir and his sons, the two appellants. The deceased apprehended danger to his life from them, and on November 23, 1967, he sent an application to the Superintendent of Police, Mainpuri alleging that Laturi and his son, Jadunath, Brahma, Panna Lal and Anokhey, etc. were terrorising the weaker and poorer sections of the village community and declaring openly that they would kill the deceased to silence his opposition forever. He prayed that an enquiry may be made and suitable action taken against them. On February 25, 1968 the deceased came to Bewar in the evening to meet the A. D. O. in connection with an enquiry on a complaint made against Munshi Lal Pradhan of the village. He could not meet the A. D. O. as he was out of Station. He stayed during the night with Prem Narain, P. W. 1 who happened to be a brother law of his cousin Gulati Ram. According to Prem Narain, both of them got up in the morning at 6.45 a.m. and since it was Shivaratri that day the deceased did not take any food and they left for the bus-stand at Bewar When they reached the bus-stand at about 7.10 a.m. they found that the bus for Etah via Sultanganj had already left. The next bus was due to go at 9.30 a. m. but, as the deceased thought that he could get a seat in some truck near the Prem Hotel and the Octroi Barrier, they left the bus-stand for the Octroi Barrier. When they reached the house of Kotwal Singh on the way, both the accused attacked the deceased with chhuri and knife, respectively ; Jadunath had the chhuri and Girand Singh had the knife. Both the deceased and Prem Narain were unarmed. On hearing the cries of the deceased Prem Narain asked the appellants why they were attacking the deceased. Then Girand Singh, appellant, advanced towards him and gave a knife cut at his right wrist. On the deceased falling down both accused persons attacked him with their respective weapons. On his raising the alarm Mahesh Chandra and Dwarka Prasad who were coming along the same road came and they shouted at the appellants. On hearing their shouts the accused ran away. The deceased died on the spot.

4. The First Information Report was lodged at 8 a. m., the Police Station being only two furlongs from the scene of occurrence. In the First Information Report, in the second column, under the heading "Name and residence of accused", it was stated as follows :

"1. Jadunath Singh, father s name not known and

2. Girand Singh father s name not known. Ahirs by caste residents of Garhia Kishunpur P. S. Bewar, Distt. Mainpuri."

The accused surrendered on March 12, 1968, and it appears that an application was filed by the advocate on their behalf that they be kept ba pardah as they might claim identification. Another application was put in on March 25, l968, in which it was stated that the witnesses other than Prem Narain were strangers and they applied that there should be an identification parade. On April 19, 1968, the then public prose