Judgment

DUA, J.: In this appeal by special leave under Art. 136 of the Constitution. appellant Raj Singh son of Bhikan. challenges inter alia his conviction and sentence of death under sec. 302 I. P.C for the double murder of Mohanlal and Bindraba, sons of Ramrakha. The appellant was tried in the Court of Sessions Judge, Ambala along with his two brothers Ram Gopal and Jaipal alias Jai Gopal for this double murder under S. 302 read with S. 34. I. P. C. and under Ss. 307/34, I. P. C. for having fired gun shots at Mehru. Govindram, Bodhraj and Ran Singh. The appellant was further charged under S. 27 of the Indian Arms Act for having used his licened double barrel gun for illegal purposes. The trial court convicted all the three brothers under Ss. 302/34, I. P. C. but sentenced the appellant Raj Singh to the extreme penalty of death. His two brothers were given the lesser sentence of imprisonment for life because they were not proved to have themselves caused any injury resulting in the murders though they were held to have associated themselves in the commission of the crime. They were also sentenced to a fine of Rs. 500/- for this offence. Under Ss. 307/34 also all the three brothers were sentenced to seven years rigorous imprisonment each. The appellant Raj Singh was awarded a sentence of 5 years rigorous imprisonment under S. 27 of the Indian Arms Act for misuse of his firearm.

2. The High Court, dealing with the appeals of the three convicts and the murder reference of the present appellant, acquitted Ram Gopal and Jaipal alias Jai Gopal, holding their presence at the time of the occurrence not to have been established. The present appellant s conviction and sentence for the double murder of the two deceased brothers was, however, maintained. His conviction and sentence under the other two counts, namely. under S. 307. I. P. C. and section 27. Indian Arms Act were also upheld. On the view taken by the High Court that the appellant alone was responsible for the murders and the murderous assault, S. 34, I. P.C. was held inapplicable. The appellant challenges in this Court his conviction for all these offences.

3. The prosecution story may now be briefly stated. The appellant and his brothers Ram Gopal and Jaipal alias Jai Gopal belong to village Manglai. Tehsil and District Ambala whereas Bindraban and Mohanlal, deceased sons of Ramrakhan, belong to village Keshopur of the same Tehsil and District. These two villages are situated at a distance of about a furlong or so from each other. The relations between the family of the deceased on the one side and that of the appellant on the other were strained for some time. In village Keshopur there is a khankah, a Muslim religious institution to which is attached land measuring about 4 killas. After partition of the country in 1947 Mohanlal deceased and his family members shifted to village Keshopur and some time in 1950 started cultivating this land under the Gurdwara Prabandhak Committee. This position continued till about 1964 when two Muslims Sadhu and Faquiria of that village were appointed by the Collector, Ambala, as Khidmat Guzars of the khankah which means servants acting as agents of the institution. Mohanlal and his family members used to pay rent of the land cultivated by them to the Khidmat Guzars and obtain receipted from them. An application for the ejectment of Mohanlal and his brothers was filed by the Khidmat Guzars in May, 1966 under S. 9 of the Punjab Security of Land Tenures Act. This application was accepted in November, 1967 and Mohanlal and his brothers along with Milkha and Jati were ordered to be ejected from the khankah land. In view of this order the Punjab Wakf Board intervened in this controversy and on November 11, 1967 instituted a suit against Mohanlal and his brothers for the possession of the khankah land, claiming the same to have vested in the Board, giving rise to the right to possession. This suit was finally compromised in March, 1969 between th