( 1 ) THIS is an appeal by one Dhoom Singh, aged 20 years, who has been convicted by the learned additional sessions Judge of Muzaffarnagar under Section 302, I. P. C. , for the murder of a 10 years old boy Ranbir singh and sentenced to death. The leference under Section 374, Criminal procedure Code, for confirmation of the sentence is also before us.

( 2 ) TWO brothers Baljit P. W. 1 and Chatra lived in separate houses in village Pachenda. The appellant is a son of Chatru. The deceased Ranbir and a 5 years old girl Ranbiri were Baljits children by a concubine Gangadevi by name. She had deserted him 2 or 3 years previously. Baljit owned 7 bighas of cultivatory land, two houses and 3 heads of cattle.

( 3 ) THE prosecution case is that Baljit fell seriously ill about a fortnight before the occurrence so that his children had to find for their food from house to house. So after about a week of illness he called the appellant and entrusted to him the care of his children and property in case he died, and the appellant began to look after them.

( 4 ) THE deceased and the appellant used to go together for bringing fodder. They did so on sunday, September 18, 1955, also but t