Judgment

FAZL ALI, J.:- The appellant Gajendra Singh has been convicted under Section 302 and sentenced to death as also under Section 307 I.P.C. and sentenced to ten years rigorous imprisonment. The High Court on appeal has affirmed the conviction and sentence passed on the appellant Gajendra Singh. Accused Raj Bahadur Singh father of the appellant who was convicted by the Sessions Judge under Section 302/34 has been acquitted of that charge but his conviction under Section 323 and sentence for one year s rigorous imprisonment has been affirmed by the High Court. There was the third accused before the Court of Session, namely, Bisharam Singh who has been acquitted because the prosecution produced no evidence against him. The appellant has filed the present appeal by special leave against the order of the High Court affirming the conviction and sentence passed on him.

2. Briefly put the prosecution case is that on August 10, 1971 some time about the noon the deceased Badam Singh who was accompanied by his cousin Shyampal Singh found that the accused were grazing their she-buffaloes in his field at Abrewala where Jawar had been grown and the crop was being damaged by the she-buffaloes belonging to the accused. The deceased Badam Singh protested against the highhanded act of the accused in trying to damage his crop which fell on the deaf ears and the accused continued to graze their she-buffaloes in the field in spite of the remonstrance by the deceased. Being fed up with the unwanted conduct of the accused in persisting with the mischief Badam Singh and Shyampal Singh rounded up the she-buffaloes and proceeded to take them to the cattle-pound. The path to the cattle-pound, it appears, passed in front of the house of the accused Raj Bahadur Singh. The prosecution case is that while deceased Badam Singh and Shyampal Singh were passing in front of the house of Raj Bahadur Singh, Raj Bahadur Singh gave a lathi blow on the head of Badam Singh and the appellant Gajendra Singh ran inside the house and brought out a gun. Thereafter Raj Bahadur Singh ordered his son Gajendra Singh to kill Badam Singh and Shyampal Singh, for having had the courage to take the she-buffaloes to the cattle-pound. On his exhortation Gajendra Singh is alleged to have fired twice on Badam Singh and Shyampal Singh causing serious injuries to their person. Attracted by the altercation at the spot, Hari Ram Sukhendra Singh , and Anangpal Singh eye-witnesses reached the scene of offence and witnessed the murderous assault. Sukhendra Singh, the father of P.W. Shyampal Singh and uncle of Badam Singh lodged a written report of the incident at police out-post Amritpur of Police Station Rajeypur, and a case against the accused was registered by the police at 6 P.M. During the incident Smt. Rambeti wife of Raj Bahadur Singh and the mother of the appellant Gajendra Singh, was also found to have received gun-shot injuries and counter report appears to have been lodged at the police out-post Amritpur at 5 P. M. an hour earlier than the F.I.R. lodged by Sukhendra Singh. This counter F.I.R. forms the subject-matter of the cross case which ended in the acquittal of the accused persons in that case, namely, the prosecution party here. After the report was lodged the two injured persons, namely, Badam Singh and Shyampal Singh were sent for medical examination to District Hospital, Fatehgarh, but Badam Singh succumbed to his injuries before he could reach the hospital and died on August 11, 1971. Thereafter the dead body of Badam Singh and the injured Shyampal Singh were taken to the District Hospital, Fatehgarh where Dr. R. P. Chaudhary examined Shayampal Singh and performed autopsy of the deceased Badam Singh. After usual investigations the police submitted chargesheet which ended in the ultimate conviction of the accused as indicated above. The gist of the F.I.R. lodged by Bisram Singh in the counter case forms the main part of defence in this case. It was alleged by the accus