( 1 ) THIS is an appeal by Parsotam Ahir, aged 40 years resident of Sakaldiha, police station Balua, district Banaras, against his conviction under Section 302, Penal Code, for the murder of Sri Raj kishore Singh on 8-10-1950, and the sentence of death. There is also before us the usual reference for the confirmation of the sentence of death.

( 2 ) SRI Raj Kishore Singh was a retired Additional Commissioner of this State. After retirement he settled down in village Sakaldiha and took to gardening. He used to go from his house every morning to his groves with his son, Sri Sanat Kumar Singh. Both of them used to return at about 9 A. M. for tea and again go to the groves and return at midday for their lunch. The appellant had his fields near the groves of Sri Raj Kishore Singh, There were certain ponds from which he used to water them, but it appears that in the year 1960 these ponds had not enough water for irrigation purposes. Sri Raj Kishore Singh used to water his groves from another pond nearby. The prosecution case was that as the appellant could not obtain sufficient water from the other ponds, he tried to divert to his own plots the water of the pond from which Sri Raj Kishore used to water his groves. He could have done this only by diverting the channels which had been dug by Sri Raj Kishore Singh from the pond to his own groves. Sri Raj Kishore Singh was not agreeable to this and prevented the appellant from carrying out his intention. The appellant appears to have resented this very much and took it to heart. He complained about it to several persons, but no one would help him. This incident happened on 7-10-1950. The next day, that is, 8-10-1950, when Sri Raj Kishore Singh was returning from his groves at about midday after-having sent his son to the labourers working in the groves, the appellant armed with a lathi followed Sri Raj Kishore Singh to some distance and when Sri Raj Kishore Singh was half way on the mend of the field of one Mahadeo Lohar, gave him a lathi blow on the right leg. On receiving the blow, Sri Raj Kishore Singh fell down on the ground and then the appellant gave him a smashing blow on the head, resulting in profuse bleeding and in the fracture of the skull bone. Raj Kishore Singh expired the next morning, at about 4 A. M.

( 3 ) THE incident is alleged to have been seen by Sri Raj Kishore Singhs son, Sanat Kumar Singh, and some other persons who were watering the fields in the neighbourhood at the time.

( 4 ) THE first information report of the incident was lodged by Sanat Kumar Singh on 8th October within about an hour of the incident. Dr. J. P. Gupta, medical officer in charge of the Sakaldiha dispensary, was immediately called. He found that the injury on the head was grievous and thought that Sri Raj Kishore Singh who was unconscious might die and opined that the Civil surgeon be called. The Civil Surgeon was also called from Banaras, but he could render no help and Sri Raj Kishore Singh expired, as already stated. Dr. J. P. Gupta examined the injuries when sri Raj Kishore Singh was unconscious on 8th October at 5 P. M. He found that there was a bruise on the outer aspect of the right leg 2" X 1/2" and also a contused wound 3" X 1/2" upto the bone on the left side of the head, 5" above the ear with fracture of the skull bone, with symptoms of compression of the brain. The postmortem examination was held on 9-10-1950 at banaras at about 1-30 p. m. According to the report of the Civil Surgeon, there was a contused wound on the top of the head, on the left side, 2 1/2" long X 1/2" wide, bone deep, with contusion in an area 12" X 10", and there was bleeding from the wound. He also found a contusion 16" X 6", on the right leg. Internal examination of the body showed a fissured fracture of the vault, running from ear to ear, 10" long. At the back it enclosed an area, with one limb 3 1/2", another 4" and the third 3" all depressed. The membranes of the brain were deeply congested. The