( 1 ) THIS appeal (Cr. A. 501/93) is preferred by the appellant, who was the sole accused before the trial court against the judgement dated 2nd November, 1993 passed by the Principal Sessions Judge, Hassan, in S. C. No. 5/92 convicting the appellant - accused for the offence punishable under Section 302 I. P. C. and sentencing him to death. The appellant - accused is also convicted for the offence under Section 3 read with Section 30 of the Arms Act and sentenced to undergo R. I. for three months and the learned trial Judge ordered that the sentence of R. I. for three months awarded to the appellant for the offence under Arms Act shall merge in the death sentence imposed on the appellant- accused.

( 2 ) THE Principal Sessions Judge, Hassan, has also made a reference under Section 366 Cr. P. C. for confirmation of death sentence awarded by him to the appellant - accused.

( 3 ) SINCE both these matters are connected with each other, we have heard them together and we are passing this common Judgement in both the se matters.

( 4 ) WE have heard Sri Shankarappa, learned counsel for the appellant, and the learned Additional State public Prosecutor Sri A. B. Patil, for the respondent, fully and perused the records of the case.

( 5 ) THE case of the prosecution is as follows :that deceased Mallesha was the elder brother of the appellant and deceased Yogisha was the son of Mallesha. P. W. 1 Gurumurthy is another son of deceased Mallesha. There was a dispute between Mallesha and the appellant in respect of the kharab land situated in between the lands of the appellant and deceased Mallesha and on the date of the incident P. W. 1, deceased Mallesha, and deceased Yogisha had gone to that khurab land and had put up a fence. The appellant is the licence holder of S. B. B. L. gun M. O. 2. On 4-8-91 at about 5 p. m. P. W. 1. Mallesha and Yogisha were returning after putting a fence around the kharab land and on the way the appellant suddenly appeared and fired at Mallesha causing hint injuries resulting in his death and he also fired/yogisha causing him gun shot injury and when Yogisha managed to hide behind a bush to save himself, the appellant picked up a machu fallen down on the ground by the side of Mallesha and dealt blows with it on the head, right shoulder and on the right thigh resulting in his death. P. W. 1 ran for his life and escaped from the place of incident and came to his house and informed about the incident to his mother Rukminiyamma and his uncle Ananda. He also informed the fact of the offence to the S. H. O. on phone. The S. H. O came over to Kamanahalli after noting down the phone message that he received from P. W. 1 in the station house diary and he visited the scene of offence and saw the dead bodies and P. W. 1 prepared his complaint and he came to the police station and presented his written complaint to the P. S. I. The P. S. I. registered the complaint and after completion of the investigation, the police filed charge-sheet against the appellant-accused.

( 6 ) THE learned Trial Judge after assessing the evidence led by the prosecution came to the conclusion that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt and he also held that this is the rarest of rare type of case and a tit case to award death sentence to the appellant and accordingly he has awarded death sentence to him besides the sentence of three months R. I. for violation of the provisions of the Arms Act.

( 7 ) THE counsel for the appellant submitted as follows :-That the evidence of the prosecution witnesses docs not prove the guilt of the appellant beyond reasonable doubt; the case of the prosecution on motive is improbable and suffers as the relevant witnesses have made improvements changing the survey number in which the kharab land is situate. P. W. 1 is not only an interested witness but also a got up witness. Ex. P-21 - the phone message is also a concocted one. The complaint Ex. P-1 is hit