Judgment

KHANNA, J.:- This is an appeal by special leave by Oyami Ayatu against the judgment of the High Court of Madhya Pradesh, affirming on appeal and reference the conviction of the appellant under Section 303 Indian Penal Code and the sentence of death.

2. The case for the prosecution is that the appellant was convicted on November 11, 1967 under Section 302 Indian Penal Code by the Additional Sessions Judge Durg and was sentenced to undergo imprisonment for life. The appellant was undergoing during the days of the present occurrence the sentence of imprisonment in the Central Jail Raipur. On January 31, 1972 at about 1.50 p.m., it is stated, Durbal deceased who too was undergoing sentence of imprisonment in the Central Jail Raipur went to the urinal in the niwar-making shed of the jail. While proceeding to the urinal, Durbal s foot touched the bamboo sticks which had been spread by the accused. When Durbal sat down to urinate, the accused attacked him with a knife. Durbal then ran away from the urinal, but was chased by the accused and was given a large number of knife blows. The occurrence was witnessed by Radheylal (PW 4), Jageshwar Singh (PW 5), Nindma (PW 6), Rai (PW 9), Ti