Roy, J.

[1] Mahendra Pal son of Mittar Singh, aged 19, by caste Brahmin, resident of village Bhojpur, within police circle Awagarh in district Etah, and Bhagwati Prasad son of Salig Ram, aged 40, by caste Brahmin, resident of village Memda within police circle Sidhpura in the same district, have been competed by the Sessions Judge of Etah under Section 302/34, I. P. C., for the murder of one Thakur Fateh Singh, a member of the U. P. Legislative Assembly on the night between July 1 and 2, 1953, at 2 A. M. in 'ahata' Ram-chandraniwas, at a distance of about one furlong from police station kotwali, Etah, by shooting him with a pistol in furtherance of the common intention of both. The actual shooting said to have been done by Mahendra Pal. Bhagwati Prasad is said to have been present by the side of Mahendra Pal armed with a lathi at the time of the occurrence giving Mahendra Pal "a moral support" as the learned Sessions Judge has found. The learned Sessions Judge awarded the sentence of death to Mahendra Pai and the sentence of transportation for life to Bhagwati Prasad. They have appealed against their conviction and sentence. There is also a reference by the learned Sessions Judge for the confirmation of the sentence of death.

[2] Thakur Fateh Singh was a resident of Nagla Kans within police circle Awagarh, in district Etah. He gained a seat in the U. P. Legislative Assembly at the general elections held in 1952. He had taken a set of rooms in the enclosure known as 'ahata' Ramchandraniwas in the town of Etah. In that enclosure there is a cluster of houses occupied by various persons. The prosecution case was that in night in question Thakur Fateh Singh was sleeping in the open in that enclosure and close to him were sleeping his son Vikram. Singh, his friend Sardar Mahendra Singh, and his servant Surendra Singh, who were occupying as many 'charpoys' within close proximity to each other. It was alleged that at about 2 A. M. the two appellants came into the 'ahata'. Mahendra Pal having been armed with a pistol and Bhagwati Prasad with a lathi.

It was further alleged that on hearing the sound of the footsteps, Vikram Singh awoke and saw the two miscreants in the moonlight and in the light of an electric bulb of zero candle power that was burning as usual at a distance of seven feet from the cot of the deceased. It was further alleged that Mahendra Pal shot at Thakur Fateh Singh from very close quarters, hitting him on the right side of the chest and that death was instantaneous. It was also alleged that Surendra Singh (P.W. 5) and Sardar Mahendra Singh (P.W. 6) woke up and they saw the occurrence, namely, the shooting as also the retreat of the appellants. These facts were embodied in a written report Ext. P-2 that was lodged at the Kotwali by Vikram. Singh on the same night at 2-30 A. M. on the basis of which the first information report Ex. P3 was drawn up at the same hour.

[3] The police arrived at the scene of occurrence shortly after the report and investigation was taken up. The post-mortem examination was conducted by the Civil Surgeon of Etah on 2-7-1953 at 8 in the morning. A gun shot wound 1/3"X 1/4" into chest cavity deep situate 3" below and 1 1/4" internal to the right nipple was found. The edges were contused and blackened. An area 1 1/2" X 1" around the wound showed blackening and tattoing. The wound was directed towards the left, slightly backward and upward. The bullet was found to have passed through the epigastrium fracturing the ziphisternum and injuring the liver and then passing through the heart, going into and lodging itself under the skin be-low the left arm-pit in posterior axillary line, Two tiny abrasions were present overlying the embedded bullet, and an area of ecchymosed 2 1/4" X 1 1/2" was present around the bullet. This elongated conical bullet was extracted out of the body.

On internal examination it was found that the left sixth rib was fractured in the mid-axillary line. The pleura was pu