( 1 ) THIS is an appeal by Ram Hazoor who has been convicted by the learned Sessions Judge of gorakhpur under Section 302 of the Indian Penal Code and sentenced to death. Along with the appeal there is also a reference by the learned Judge for the confirmation of the sentence of death.

( 2 ) ACCORDING to the prosecution case, Ram Hazoor, a young man of 19 years, is alleged to have killed one of his collaterals, namely, Hardwar Pande, by attacking him with a gandasa on the night between the 6th and the 7th of November, 1957, when Hardwar Pande was sleeping in his osara along with his two grand-children, Markande, aged between 8 and 9, and Sadho alias Kripa shanker, aged between 7 and 8 years. The motive for the crime was said to have been a subsisting enmity between Ram Hazoor and Hardwar Pande: this enmity is said to have been accentuated by an incident that took place during the Panchayat elections when the accused is alleged to have beaten the deceased and in respect of which beating the deceased filed a complaint before the Panchayati Adalat. This complaint was pending at the date when Hardwar Pande was murdered. According to the prosecution case, the assault on Hardwar Pande was made in the small hours of the morning between 3 and 4 Oclock on the 7th November, 1957. The assault was alleged to have been actually witnessed by Markande and Kripa Shanker, the two grandchildren, who, as we have already noticed earlier, were sleeping alongside the deceased, Markande, it was said, slept on the same bed on which slept Hardwar Pande, while Kripa Shanker, the other grandson, slept on a bench which was adjacent to Hardwar Pandes bed. At the time when the actual assault was made nobody save the two aforementioned individuals woke up or witnessed the assault. Two witnesses, Srimati Anari and Santokhi, are alleged to have seen the assailant running away from the scene of occurrence after the crime with a gandasa in his hand. Srimati Sumitra, the mother of Markande and the aunt of Kripa Shanker, is alleged to have come out on the cries of the two young lads and to have seen Hardwar Pande lying dead and to have learnt from the two young boys the fact that Hardwar Pande had been assaulted by ram Hazoor, the appellant, with a gandasa. Jagarnath, deceaseds cousin some degrees removed, who lived in a house some 20 paces to the south of the house of the deceased, also arrived on hearing the cries emanating from Hardwar Pandes house: he also gathered the fact that the murder had been witnessed by Markande and Kripa Shanker.

( 3 ) JAGARNATH thereafter went to police station Bansgaon, which was two miles away from Saintal, the village of incident, and there he made a first information report at 5. 30 in the morning. This is what Jagarnath said in his report which he scribed himself and which he handed over at police station Bansgaon :

"i beg to say that my cousin brother Hardwar Pande, son of Deo Narain Pande, resident o saintal, P. S. Bansgaon, was sleeping last night in the osara at his door. His grandson, Markande, aged 10 years, was sleeping on his charpoy and another grandson of his, Sadho, aged 9 years was sleeping on a Bench by his side. I was sleeping at my house. At about 3 or 4 Oclock when I heard the sound of weeping and wailing of women, I went running to his door and saw the throat of Hardwar Pande cut and him lying dead on the charpoy. There is a good deal of blood and blood stains on the face and Kurta of Markande and the wall and the bed on which Hardwar Pande had been sleeping. Markande who was sleeping with him disclosed that he woke up on hearing a dog-bark, that Ram Hazoor Pande who belonged to his village had struck his grandfather on the throat with a gandasa, that man who was in his company was standing under the osara, that he could identify him if confronted, and that he had remained lying quietly out of fear. Litigation has long been going on and there was old enmity between Ram Hazoor Pande and Hardwar Pan