Judgment

SARKARIA, J. :- The appellant, Shanker s/o Prem Raj, aged 35 years, and two others, namely, Persoti son of Megha and Uttam son of Lallu were tried and convicted by the Additional Sessions Judge, Moradabad on Charges under Sections 148, 302 read with 149 and 323/149, Indian Penal Code in respect of the murders of two brothers, Shanker and Keshri. All the three were convicted under Section 302 read with 149, Penal Code. The appellant was sentenced to death and each of the other two to imprisonment for life. They were also convicted on the minor charges and sentenced to various terms ofimprisonment. On appeal, the Allahabad High Court confirmed the conviction and sentence of the appellant but acquitted Persoti and Uttam. Shanker has come to this Court in appeal after obtaining special leave under Article 136 of the Constitution.

2. Prem Raj had three sons, namely, Shanker appellant, Pitam and Megha. Pitam was murdered on 21-6-1970. F. I R. with regard to that incident was lodged by Megha, in which, Basant son of Hardayal was, named as one of the culprits. On 23-6-l970 Megha made another report to the police alleging that Keshri, the deceased person in the present case, had committed an offence under Section 452 Indian Penal Code. On 6-10-1970, the police initiated proceedings under Sections 107/117, Criminal P. C. against both the parties. Megha, his brother Shanker, Piarey and Chhotey were arrayed on one side, while Basanta s/o Hardayal, Keshri deceased and four others were proceeded against as the other party. On 2-5-1971, a written complaint was filed by the said Basanta against Megha, Shanker-appellant and three others under Sections 147, 148/ 307, Penal Code at Police Station Mogul-Pura. On 30-6-1971, Keshri laid a report under Sections 323/506/504, Indian Penal Code at the Police Station complaining that Megha, Persoti and Shanker sons of Prem Raj and Uttam s/o Lallu had beaten him and threatened to murder him. On 2-9-1971 a clash between the parties took place in Moradabad. This is apparent from the General Diary Entry, Exh. Kha 18, which was recorded in the police station. On 29-9-1971, Megha reported to the police that the said Basanta and Piarey s/o Baldeo had attempted to murder him.

3. Towards the end of September, 1971, Megha was murdered and Basanta and Piare aforesaid were prosecuted therefor. The deceased persons used to look after the defence of Basanta and Piare.

4. On account of these past events the accused bore hostility against the deceased persons.

5. On 27-10-1971, Keshri and Shanker deceased were hoeing their potato field situated at a short distance from the Abadi of village Baldeopuri. They used to reside in a hamlet. At about noon, their mother, Smt. Rani, P. W. 2 and Keshri s wife, Smt. Bhagwati, P. W. 4 reached there and served the deceased with meal. The deceased rested for sometime and thereafter resumed their work. The women also stayed there.

6. At about 1 or 1.30 a.m., the appellant armed with a pistol, Persoti s/o Megha and Uttam armed with knives, Hetram armed with a tabal and one stranger armed with a saria (iron rod) appeared on the scene. They caught hold of the deceased persons and forcibly took them to the adjoining field of Hulasi. The two women raised an alarm. Smt. Rani went ahead to the rescue of her sons, but was stopped and given saria blows by the stranger. The appellant fired his pistol at Keshri from close range, and Hetram assaulted him with the tabal. Simultaneously, Persoti and Uttam stabbed Shanker deceased with their knives. Both Keshri and Shanker died at the spot.

7. The culprits then went away. Smt. Rani called her husband Ram Swarup, P. W. I, to the spot through the village Chowkidar. Ram Swarup came and she apprised him all about the occurrence. Ram Swarup then accompanied by the village Chowkidar went to Police Station Moghal Pura and lodged the First Information Report, Ex. Ka 3, at 2-30p. m., the same day.

8. On 28-10-1971 at 3-30 a. m. Smt. Ishwari, mother of Basan