( 1 ) THIS is an appeal by Mool Chand, aged 22 years, and Phool Chand, aged 30 years, against their conviction under Section 302 and under Sections 302/34, I. P. C. respectively and sentence of death. There is also before us the usual reference for the confirmation of the death sentence.

( 2 ) THE appellants were prosecuted along with Brij Lal and Ram Naresh under Sections 147, 148, 302 read with Section 149, I. P. C. for having conspired together to murder one Nathey Ahir after arming themselves with deadly weapons in the company of one or two more persons and for having committed murder of the aforesaid person at about mid-night between the 3rd and 4th august 1951 in village Bahapur, while the deceased was sleeping on a Machan in a field. Brij lal and Ram Naresh were acquitted by the learned Sessions Judge.

( 3 ) IT appears that Mool Chands father Lautan and Phool Chands father Sultan were cousins. They used to cultivate a field of Rampat zamindar, P. W. 13. Rampat ejected them by means of a suit and then cultivated the land himself for two years. In the month of Jeth or Baisakh 1951 nathey deceased got the land from Rampat. Mool Chand and Phool Chand did not like this. They threatened Nathey that if he did not leave the land, he would come to harm. Brij Lal and ram Naresh had, however, other enmity with Nathey and the prosecution case was that they conspired, with Mool Chand and Phool Chand to murder Nathey. For the last three nights before the incident Nathey used to sleep on a Machan in his Jondhari field in order to guard his crops in the night. In the night in question, according to the prosecution, while Nathey was sleeping on a cot on his Machan, five or six persons including the appellants and Brij Lal and Ram Naresh attacked Nathey with garidasas. The actual attack was made by Mool Chand and Brij Lal while phool Chand and Ram Naresh held the feet of Nathey to facilitate his being killed, and one or two persons, who could not be recognised, armed with lathis were standing nearby.

( 4 ) THE first information report was lodged by the deceaseds wife, Smt. Dhananti, at 6-30 in the morning of the 4th of August. The Sub-Inspector Ram Adhar Singh at once proceeded to the place of occurrence and held an inquest. He found the deceased lying dead on the cot over the machan in a pool of blood. The accused were absconding and he searched their houses in their absence and found two bloodstained gandasas from the house of Mool Chand in the presence of witnesses.

( 5 ) THE post-mortem report revealed that the deceased had received no less than 12 injuries of which 11 were incised wounds all inflicted on right side of chest, temple, face and neck.

( 6 ) HUMAN blood was found on one of the gandasas, while on the other the blood was disintegrated and its origin could not be determined. The accused pleaded not guilty. Mool chand denied that the gandasas belonged to him or that they were recovered from his house. The recovery of gandasas from the house of Mool Chand was, however, proved by witnesses of recovery. Smt. Dhananti, Rama Awadh, Rama Deo and Jholai, eye-witnesses, were produced by the prosecution. Baidat and Lakhi swore that immediately after the incident they saw the accused running away from, the scene of murder.

( 7 ) WE have been taken through the evidence of the witnesses and 1 have no doubt in my mind that the prosecution case is fully established on the evidence on the record. Certain discrepancies were pointed out in the statements of tae witnesses but they are all minor and immaterial. There is no reason to disbelieve the prosecution witnesses on that ground. In my opinion, guilt was brought home against the appellants and they were rightly convicted under Section 302 read with section 34, I. P. C.

( 8 ) IT has been strongly urged that on the prosecution evidence Phool Chand was merely holding the feet of the deceased while the actual act of inflicting injuries by a gandasa was done by Mool chand and that