LODHA, J.—During the night intervening August 21 and 22, 1965, a theft is alleged to have been committed in the house of Birah Singh, son of Moher Singh Gujar, resident of Shergarh The complainant was relived of currency notes of Rs. 500/- and ornaments, utensils and clothes worth about Rs. 2500/-. First information report of the occurrence (Ex. P. 6) had been lodged by Birah Singh with the Police Station, Bayana, on August 22-1965, at 5.30 p. m. Birah Singh and his brother Daya Singh suspected Bhagwan Singh of the village Shergarh to be the thief. On August 27-1965, Mst. Moti Bai, daughter-in-law of Bhagwan Singh, told her brother-in-law Roshan, P.W.W. 4, a boy of about 13 years old, to request his father to take her to her parents house at Uncha. Bhagwan Singh agreed to it. It was decided that they would go next morning to Uncha via Dumaria Rly. Station. Bhagwansingh was employed as a labourer in a crush machine, installed somewhere near Sikandra. He proceeded on his duty in the early hours of the morning of August 28-1965. Thereafter Mst. Moti Bai, wife of Shanker Singh, and her brother-in-law Roshan, left their house. They went to the crusher machine, where Bhagwan Singh joined them. All the three persons then left for Dumaria Railway station. They crossed Sikandara and when they proceeded a little ahead therefrom, Birah Singh and Daya Singh waylaid them. Daya Singh was armed with a lathi. Birah Singh was, however unarmed. Both Daya Singh and Birah Singh told Bhagwan Singh to return to Shergarh. Bhagwan Singh told them that he would leave her daughter-in-law to her parents house and then would return to his village just after a day. Thereupon, Birah Singh and Daya Singh spoke to him that they would not allow him to go further and that if he persisted to do so, he would be put to death. Bhagwan Singh defied their mandate. Birah Singh caught hold of him and felled him down. Daya Singh snatched away his lathi and handed it over to his brother Birah Singh. Both the accused mercilessly gave beating to Bhagwan Singh with lathis. Mst. Moti Bai and Roshan raised an outcry, which attracted three other persons on the spot. These people attempted to intervene in the matter, but the accused did not desist from their activity. Thereupon two of them went away. Bhagwan Singh asked the third person to take him under the shade of a tree. Thereafter he was again beaten by the accused with lathis. Bhagwan Singh died on the spot after sometime. The two accused then searched the box which was with Mst. Moti Bai, but they could not find any stolen thing therein. Both Mst. Moti Bai and Roshan were told by the accused to go back to Shergarh, lest they might also be killed. Mst. Moti Bai concealed herself in a quarry. Roshan somehow managed to reach the Police Station, Bayana, where he submitted first information report Ex. P. 8 on August 28, 1965, at 4 p.m. Police registered a case against the accused under sec. 308, I.P.C., and investigation followed. The Station House Officer, Bayana, Manoharlal, P.W. 8, arrived at the spot. He prepared Panchnama of the dead body of Bhagwan Singh, Ex. P. 12. He also prepared site plan Ex. P. 6 and inquest report Ex. P. 7. He seized blood-stained sand, a turban and a pair of shoes of Bhagwan Singh deceased under memos Exs. P. 9 to P. 11. Dr. Anant Narain, P.W. 9 Medical Officer, Bayana, performed the post-mortem examination of the dead body of the deceased. He found the following external injuries on his dead body—

(1) Contusion 5" x 1" obliquely, near inferior angle of scapula.

(2) Contusion 6" x 1/2 obliquely, left lumbar region.

(3) Contusion 5-1/2" x 1/2" obliquely, left supra scapular region.

(4) Contusion 2" x 1/2" obliquely on left shoulder, 1-1/2" distal to achromion.

(5) Contusion 2"x 1/2" obliquely on posterior aspect of middle third of left arm.

(6) Contusion 3" x 1-1/2" transversely on anterior aspect of right arm junction of upper one-third and lower two-thirds.

(7) Contusion left side of face, zygoma, upp

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