( 1 ) THIS is an appeal by Om Prakash, son of Bahori Singh, resident of village Kantaur, P. S. Marehra, district Etah. The appellant has been convicted under Section 302, I. P. G. by the learned Sessions Judge, Etah, and sentenced to death. The reference for the confirmation of the death sentence is also before us.

( 2 ) THE appellant was charged answer Section 302, read with Section 34, I. P. C. , along with two other persons, namely, Lakhansingh and Babusingh for having committed the murder of one sarnamsingh on 19-6-1054, at about 7 p. m. in village Kantaur, Babusingh and Lakhansingh were acquitted by the trial Court. The appellant, was, however, found guilty. He was convicted under section 302, I. P. C. , and sentenced as above.

( 3 ) THE appellant Om Prakash and the deceased Sarnamsingh were relations having descended from a common ancestor. The grand-father of the deceased Sarnamsingh was one Motisingh. Bahorisingh, the father of the appellant Om Prakash, was the grandson of Zorawar Singh, the brother of Motisingh. Chandrapalsingh, who is a prosecution witness in the case, is the son of thakur Das, a brother of Bahorisingh, and is the first cousin of the appellant Om Prakash. Sheodansingh, another prosecution witness, is the brother of the deceased and the uncle of the appellant Om Prakash. The appellant Om Prakash and the deceased Sarnamsingh used to reside in the same house in village Kantaur. The appellant used to stay away from the village as he was carrying on his studies at Sujawalpur. He had come back to his house on 19-6-1954 which is the date of the incident. On the same day, Chandrapalsingh, the cousin of the appellant, had come back from his father-in-laws house.

( 4 ) THE prosecution case in respect of the occurrence is as follows : On 19-6-1954, at about sunset chandrapalsingh, Bhagwan Singh. Janaksingh, Sahibsingh, Babusingh, Lakhansingh, sarnamsingh deceased and a number of other persons were sitting in front of the house of sarnamsingh and conversing together. Chandrapalsingh, who had returned from his father-in-laws house that day, informed the assembly that Om Prakash appellant had married a girl of low caste in village Kharoli. The persons present had been discussing this matter when Om Prakash appeared on the scene. Sarnamsingh asked him who he had married a girl of low caste. The appellant replied angrily that he had done what he had liked, and is was nobodys concern. Thereupon Sarnamsingh retorted that by marrying in a low caste he had brought a slur to the whole family. This lad to an exchange of hot words between them. Both of them grappled with each other, but all the people present there intervened. Then Om prakash left the place and went to late house. He returned in 5 or 7 minutes and began to abuse sarnamsingh. Sarnamsingh advanced towards Om Prakash to admonish him. Babusingh and lakhansingh, the two persons who were accused in the trial Court, caught hold of Sarnamsingh. Then Om Prakash at once took our a double-edged dagger which was concealed inside his bush-shirt, and struck three or four blows at the neck of Sarnamsingh. The persons collected there rushed to his rescue and supported Sarnamsingh as he was falling down. They laid him on a cot. He became unconscious and succumbed to his injuries. Om prakash, Lakhan Singh and Baku Singh then ran away.

( 5 ) A first information report of the above incident was made by Sheodansihgh, the brother of the deceased, at police station Marehra at 12-30 a. m. on 20-6-1954. The station officer Shahid husain was present at the time. He immediately left for the spot. On arrival there, he prepared the inquest report and sent the dead body for post-mortem examination. He also made a site plan of the locality. He examined the eyewitnesses and conducted the investigation.

( 6 ) THE post-mortem examination of the deceased Sarnamsingh disclosed that he had one incised wound 2 1/2" x 1/4" x 1" running vertically in front of the left ear and one penetra