Judgment

VAIDIALINGAM, J. :- This appeal by special leave is against the judgment and order dated 19-10-1970 of the Allahabad High Court in Criminal Appeal No. 642 of 1972 confirming the conviction of the appellant for an offence under Section 302 read with Section 34, I. P. C. as well as the sentence of death imposed on him for that offence by the First Temporary Civil and Sessions Judge, Allahabad. By the same judgment the High Court has also confirmed the conviction of the appellant for an offence under Section 352 read with Section 34, I. P. C. as also the sentence of three month s rigorous imprisonment on the appellant for the said offence.

2. Another accused, Abrar Ahmad, was also convicted along with the appellant of the offence under section 302 read with Section 34 but he was sentenced to undergo imprisonment for life. The said Abrar Ahmad was also convicted and sentenced for an offence under Sec. 352 with Section 34, I. P. C. His conviction and sentence for both the offences were also confirmed by the High Court. We are informed that after the judgment of the High Court the said Abrar Ahmad died. That explains the reason why he is not before us.

3. According to the prosecution both the accused belong to village Hatwa to which the deceased Mohd. IIyas also belonged. There appears to have been two warring factions in the said village, one led by Ansar Ahamd and the other by Mohid Uddin. The deceased IIyas belonged to the party of Ansar Ahmad and the accused to the party of Mohi Uddin. It is in evidence that Ansar Ahmad was murdered on November 23, 1968. The brother-in-law of Ansar Ahamd lodged a report involving the appellant as well as Abrar Ahamd and certain others belonging to the party of Mohi Uddin. After the death of Ansar Ahmad, the deceased, Mohd. IIyas, is stated to have become the leader of his group and he, in company with his father-in-law, one Mohd. Yunus, assisted the police in prosecuting the case against the accused and their companions concerning the murder of Ansar Ahmad. It is also in evidence that Mohd. IIyas had appeared as a witness against the father of Abrar Ahmad in certain proceedings under Section 107/117 of the Criminal Procedure code a few years back.

4. On February 14, 1969, at about 3.00 P.M. it is the case of the prosecution that on Afsar Ahmad stated to be the nephew of the appellant before us, was murdered near the village Hatwa and a report about the said murder was lodged at police station, Puramufti, on the same day at about 3.45 P,.M. The brother-in-law and the father-in-law, Mohd. Yunus, of the deceased had been implicated in the said report.

5. It is the further case of the prosecution that on the same day i.e. February 14, 1969, at about 4.00 P.M. the appellant and the other accused, Abrar Ahmad, armed with guns shot Mohd. IIyas, who was then working in his watermelon fields at Mubarakpur Kachhar. The accused is stated to have shouted that as a member of their party had been killed they will do away with Mohd. IIays by way of revenge. Mohd. IIyas on receiving injuries due to the gun shots fired by the two accused dropped down dead. The first information report was given by P. W. 2, the son of the deceased, who had witnessed the incident as he was working with his father in the fields. The doctor, who conducted the post-mortem on the body of Mohd. IIyas, has noted several injuries. According to the doctor the injuries in the abdomen of the deceased were sufficient in the ordinary course of nature to cause death.

6. Both the accused pleaded not guilty to the charges levelled against them. Their further plea was that they had been implicated due to party factions and enmity.

7. The prosecution relied on the evidence of P. Ws. 2, 7, 8, and 9 as eye witnesses to the occurrence. The learned, Sessions Judge as well as the High Court have accepted their evidence as true notwithstanding the circumstance that there was deep rivalry between the notwithstanding the further fact that the members o