JUDGMENT

CHANDRACHUD, J.:— The appellants, Subhash and Shyam Narain, were convicted by the learned Civil and Sessions Judge, Farrukhabad under Section 302 of the Penal Code on the charge that at about 9 a.m. on June 9, 1972 they committed the murder of one Ram Sanchi, Subhash was sentenced to death and Shyam Narain to imprisonment for life. The judgment of the trial Court having been confirmed in appeal by the High Court of Allahabad, the two accused have filed this appeal by special leave of this Court.

2. The case of the prosecution is briefly as follows: On the morning of June 9, 1972 the deceased Ram Sanehi had gone to his field along with his son Bal Kishore and his daughter Kusuma Devi for eating Kharbuzas. While they were returning from the field at about 9 a.m. the appellants, who were lying in wait near a culvert, suddenly accosted Ram Sanehi. The appellant Subhash pointed the barrel of his gun towards the chest of Ram Sanehi and said that since he, Ram Sanehi, was a witness against him in a complaint filed by Pooran and since he was also doing Pairvi on behalf of Pooran Lal he would not be allowed to remain alive. The appellant Shyam Narain was armed with a Lathi, Bal Kishore and Kusuma Devi pleaded with the appellants to spare their father but Shyam Narain asked Subhash not to delay the matter and finish Ram Sanehi quickly. Subhash thereupon fired three shots from his double-barrelled gun, the last of which misfired. Ram Sanehi fell down, whereupon the appellants dragged him by his legs over a distance of 6 of 7 paces. Bal Kishore and Kusuma Devi then raised an alarm whereupon Brij Bhusan, Shyam Lal, Mangali Prasad and Jhabboo Singh Thakur reached the place of occurrence and challenged the appellants. Before running away, the appellant Subhash told his companion Shyam Narain that he on his own part was going to surrender before a court and that Shyam Narain should make his own arrangements. Ram Sanehi died within about 10 minutes after receiving the injuries.

3. Bal Kishore first went to his house which is at about a distance of 120 yards from the scene of offence. At about 12 Oclock at noon he went to the Kamalganj police station and lodged his First Information Report (Ex. Ka-3). S. I. Vishwanath Sharma who was posted as a 2nd Officer at the police station recorded Bal Kishores complaint, went to the scene of occurrence, prepared the inquest report and handed over the dead body for being sent for post-mortem examination to the District Hospital at Farrukhabad which is about 10 miles away from the village of Kandharpur where the incident took place. S. I. Sharma took samples of earth from the place of occurrence and seized a misfired cartridge which was lying concealed in the folds of the deceaseds Dhoti. The Fard in that behalf is Ex. 10 and the site-plan is Ex. Ka-11.

4. The appellant Subhash surrendered before the Additional District Magistrate (Judicial) at Farukhabad at about 4 p.m. on the very day. The appellant Shyam Narain was arrested at about 2.00 p.m. on the same day under Section 122 of the Railway Act for crossing the railway lines at Fatehgarh.

5. The appellants denied the charge that they had committed the murder of Ram Sanehi and stated that they were involved in the case due to enmity. This defence has been rejected both by the Sessions Court and the High Court.

6. Before referring to the evidence in the case it has to be mentioned that the High Court had before it not only the appeal filed by the accused but also a reference made by the Sessions Court for confirmation of the capital sentence under Section 374 of the Code of Criminal Procedure. Time and again this Court has pointed out that on a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of Sections 375 and 376 of the Criminal Procedure Code. Under these sections the High Court must not only see whether the order passed by the Sessions Court is correct but it