Shearer, J.

1. This is a reference made by the learned Sessions Judge of Shahabad under Sec.374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed by him on two men, Hira Dubey and Shriram Pandey, who have been convicted of the murder of one Radha Pathak. Hira Dubey and Shriram Pandey have appealed against their convictions and sentences, and the appeal has been heard along with the reference. Radha Pathak died in consequence of an assault which was committed on him in the early morning of the 26th of April, 1951. Radha Pathak belonged to Kapasia, but resided in another village Nimia, where he had relations. In the early morning of the 26th of April, 1951, he left his house in Nimia intending to go to Kapasia. According to the prosecution, the two appellants followed and overtook him at a point close to the boundary of Nimia and assault-ed him with lathis. Blood was found by the Sub-Inspector at this point, and it is not suggested that it was not the venue of the occurrence. The post mortem shows that Radha Pathak was struck some six or seven, or possibly more, blows with lathis. One of the blows was on the head, and caused a fracture of the