JUDGMENT

SARKARIA, J.:— The appellant, Har Dayal, aged 26 years, was tried and convicted for the murder of Rajendra, a boy of 10 or 11 years, by the Sessions Judge, Orai and sentenced to death. He was also convicted on the allied counts under Sections 364 and 201. Penal Code, and sentenced to 4 years and 2 years rigorous imprisonment, respectively. Hardayals appeal has been dismissed by the High Court of Allahabad, and the sentence of death awarded to him, has been confirmed. He has now come in appeal before us by special leave under Article 136 of the Constitution.

2. The facts of the prosecution case, as they emerge from the record, are as follows:

Lok Chandra (P. W. 13), is a resident of Karyana, Kuli Bazar, Kanpur. His mother, Muniya Devi (P. W. 4) and father, Budhi Lal, (since deceased) have been residing separately from him in Kakori Mohalla, Kanpur. Smt. Shanti (P. W. 12), the sister of Lok Chand was married to the appellant sometime in June 1070. The appellant was given to wine and gambling. He frequently beat and maltreated Smt. Shanti. Consequently, she started living with her parents at Kanpur. The appellant made several attempts to take her back to Konch where he was residing. Each time the parents refused to send the unwilling wife back to the matrimonial home. The appellant then tried trickery. He sent a letter from Konch that his mother was seriously ill and that his wife should come to Konch immediately. When this letter did not bring any result, he sent a second letter around 24th February 1971 saying that his mother had died on the 18th February 1971 and that his wife should be sent to Konch. These letters were addressed to Kunj Behari, another brother of Smt. Shanti. On this occasion, his inlaws sent Smt. Shanti along with Kunj Behari to Konch. On reaching there they learnt that the appellants mother was very much alive and the letter was only a ruse. Kunj Behari and his sister stayed for the night at Konch in the house of another relation and returned to Kanpur on the following day and apprised their parents about the falsity of the information sent by the appellant.

3. On March 5, 1971, the appellant came to the house of his parents-in-law at Kakori Mohalla, Kanpur in the evening, and tried to persuade them to send Smt. Shanti, with him. Shantis parents refused saying that she was unwilling to go back to him. Incensed, the appellant went away, uttering a threat that for this refusal they would repent for the whole of their lives.

4. The appellant thereafter, the same evening, went to the house of his brother-in-law. Lok Chand in Kuli Bazar and pressed the latter to persuade his parents to send Shanti with him. Lok Chand expressed his inability to do anything, adding that he had no say whatever in the matter. In anger, the appellant went away, holding out a threat to Lok Chand.

5. On the following morning at 7.30 a.m., the appellant returned to the residence of Lok Chand. The latter had already gone away to the Gun Factory where he was employed, Lok Chands wife Rajjo Devi, (P. W. 5) was also not present there. She was away to the public latrine for easing herself. Their minor son, Rajendra, aged about 10 or 11 years, was all alone in the house. Rajendra was about to go to the school where he was studying. After ascertaining from Rajendra that his parents were not at home, the appellant offered some inducement to the child to go with him. The child, at first, expressed reluctance but on being induced further, agreed. The appellant then took away the child with him. This taking away was witnessed by the immediate neighbours, Prayag Raj (P. W. 2), Smt. Bachchi (P. W. 3) and Nihal Chand (P. W. 7).

6. On returning to the house, Smt. Rajjo Devi found Rajendra missing. She was informed by the neighbours that the appellant had taken away the child for showing Tazia procession. Smt. Rajjo Devi did not suspect anything wrong in it as the appellant was, after all, a close relation of her husband. But when the child did not