Judgment

TULZAPURKAR, J. :- The appellant- accused was sentenced to death by the Second Temporary Civil and Sessions Judge, Kanpur under S. 302 I. P. C. for committing the murder of his uncle Phool Chand in Sessions Case No. 279 of 1972 on November 25, 1972, which conviction and sentence were confirmed by the Allahabad High Court in Criminal Appeal No. 3336 of 1972 and Reference Case No. 128 of 1972. He has challenged his said conviction and sentence in this appeal by special leave granted on December 2, 1975.

2. The incident during the course of which Phool Chand was assaulted by the appellant-accused with a Karauli inflicting numerous injuries is said to have taken place on March 16, 1972, at about 6.00 P. M. in the 8-Biswa field of Phool Chand in village Bhagwantpur and the motive for the assault was property dispute. Briefly stated the prosecution case was that deceased Phool Chand, whose only daughter had died some 16/17 years ago, had brought his son-in-law Salig Ram and three grandsons Babu, Chote Lal and Raghuraj (P. W. 1) to his village Bhagwantpur and they were living with him. About 10 months prior to the occurrence Phool Chand had executed a gift deed (Ex. Ka-27) in respect of his 1/3rd separated share in the ancestral lands (admeasuring 11 1/2 bighas) in favour of Smt. Rajeshwari widow of Babu (who had in the meantime died). Chote Lal and Rabhuraj (P. W. 1); this was not relished by the appellant-accused and his brother Mahadev (nephews of Phool Chand). After the execution of the gift deed Phool Chand had applied for the grant of a Bhumidari Sanad in respect of his lands after depositing 20 times the rent of his share in the aforesaid lands and in spite of objections filed by the appellant-accused and his brother Bhumidari Sanad had been granted to him on December 31, 1971; thereafter Raghuraj (P. W. 1), his brother Chotelal and his brothers wife Smt. Rajeshwari applied for the mutation of the said lands in their names in the Revenue records but the appellant-accused and his brother Mahadev preferred objections to it on June 3, 1972 and the application for mutation was pending at the time of the occurrence. On March 16, 1972 at about 6.00 P. M. Phool Chand and Raghuraj (P. W. 1) went to the 8-Biswa field in which wheat crop was standing; they had gone there for uprooting Hariyali (green fodder); Raghuraj started uprooting the Hariyali near a jack fruit tree at the western mend (Bandh) of the field while Phool Chand sat on the southern mend (Bandh) in the southeast corner of the field and according to the prosecution at that time the appellant-accused came to the field armed with a Karauli and started stabbing Phool Chand after pulling him down from the Bandh. Phool Chand raised shouts; Raghuraj also shouted with the result that Khushi Ram (P. W. 2), Hussain Bux (P. W. 3) and Chote Lal ( P. W. 4) went running to the spot from different directions. But, in the meantime, the appellant-accused had inflicted a number of injuries on Phool Chand who had fallen down. On being questioned and admonished by these three witnesses, the appellant-accused ran away towards north. Raghuraj and others went near Phool Chand but after one or two hicoups Phool Chand died on the spot. Blood had flown out from his wounds and his clothes were also stained with blood. Raghuraj got a report prepared in his house and carried it to the police station Gajner after walking a distance of 4 miles from his village and lodged the same with Bhoop Singh, Head Constable, at 8.45 P. M. The Head Constable for warded the papers to the Station House and left for the village along with one Babu Ram Constable. A. S. I. Falah Uddin (P. W. 5) received the papers at about 1.00 a. m. at night at Bishanpur where he had gone in connection with some other investigation and from there he proceeded to Bhagwantpur village. In the morning of March 17, 1972 he held an inquest of the dead-body and sent it for post-mortem examination. He recorded the statements of the wit