BIND BASNI PRASAD, J.

( 1 ) THIS judgment will govern criminal Appeals Nos. 448 of 1950 and 233 of 1951. They arise out of the same occurrence. The judgments are two, because one of the accused was absconding and he was tried subsequently when he was arrested.

( 2 ) THIS is a case of a highway robbery and murder. On 16-3-1949, at about 5 P. M. one Karan singh was returning on his mare from a fair held in the village of Charthawal in the district of muzaffarnagar. Behind him were two persons riding on a horse, one of whom is alleged to be a sikh and the other a person of this Province. One Kamal Uddin who is an employee in a grove of chaudhri Misri Lal in the jungle of Charthawal was also returning from the fair. The mare and the horse passed by him and after going a short distance he noticed that one of the two parsons riding on the horse, namely the person belonging to this Province, got down and when Karan singh passed by him he caught hold of the reins and dragged him down. The Sikh who, was on the horse fired two shots from a pistol at Karan Singh. Karan Singh died instant-aneously. The person who had caught hold of the reins of the mare then rode upon the mare and drove it away. A report of this occurrence was made by Kamal Uddin at Chauki Chartha-wal the same evening at 7-30 P M. In this report the names of the accused were not mentioned, but it was stated that one of the miscreants was a Sikh and the other a person of this Province. The description of the mare was given and its value was said to be Rs. 1,200.

( 3 ) S. I. Giri Lal started the investigation at once. He recovered blood soaked earth from the scene of the occurrence. He was able to arrest Daryao Singh, who is the appellant in Criminal Appeal no. 448 of 1950, on 30-3-1949. The mare was also recovered from him. The other accused mahendra Singh, who is the appellant in the other appeal, was not arrested until 20. 6-1950. It is said that Mahendra Singh was absconding. The police, therefore, sent up the case first against daryao Singh and another person, Allah Bakha, under S3. 302 and 894 read with Section 34, penal Code. The charge against Allah Rakha was that of abetment only. By the judgment dated 25 2 1950 Sri N. L. Gupta, the learned Sessions Judge of Muzaffarnagar, convicted Daryao singh of offences under Sections 303 and 394, Penal Code. He was sentenced to transportation for life under Section 302 and to 10 years rigorous imprisonment under Section 394, Penal Code, allah Rakha was acquitted.

( 4 ) AFTER the arrest of Mahendra Singh on 20. 6. 1950, he was also placed on trial and by the judgment dated 20-2-1951, the same learned Sessions Judge convicted him also of the two offences and sentenced him to death under Section 302, Penal Code. He was further sentenced to ten years rigorous imprisonment under S, 394, Penal Code.

( 5 ) IT is desirable to deal with the cases of the two appellants separately as different considerations arise in respect of each. We take up firat the case of Daryao Singh, the appellant in Criminal appeal No. 448 of 1950. It is true that in the First Information Report his name is not mentioned. The reason for this is that Kamal Uddin who made the report did not know his name. The report is a straightforward document and has a ring of truth about it. The facts stated in it are borne out by the recovery of the blood-stained earth from the scene of the occurrence and the post-mortem examination report of Karan Singh. It will be seen that the deceased Karan Singh had two circular gunshot wounds, a circular penetrating wound in the abdomen, a circular wound on the outer side of the upper right arm; and a corresponding circular wound on the inner side of the right arm. In the opinion of the doctor the cause of death was shock and haemorrhage as a result of the ballet wound. Kamal Uddin had no animus to implicate Daryao Singh falsely. [after further discussing the evidence his Lordship concluded. ] To sum up, in view of the evidence of the

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