RAGHUBAR DAYAL, J. :- Sheo Shanker alias Tanu and Sheo Shankar alias Bachchu appeal against their conviction and sentence of death under S.302, I.P.C. for having committed the murder of Girdhari and Ram Singh on the morning of 4-1-1951, near Achalganj railway station.

2. The prosecution story is that these two accused appellants and one unknown person lay in ambush in the grove of Sheo Ram Brahman about three furlongs by the passage from the railway station and shot at Girdhari and Ram Singh and their companions when they had passed this grove on their way from village Bethar to the railway station. Two shots were fired. It is said that the second shot hit Girdhari on the legs. Girdhari and Ram Singh ran towards the station. Their companions also ran in the same direction but along the sides of the passage. The accuseds party pursued them and the men with guns kept on firing. Ram Singh was hit with shots just in front of the quarters of Abdul Ghani, signal inspector. He fell down there. Girdhari kept on running and was hit again after he had run about 328 paces from where Ram Singh had fallen down. Girdhari fell down on being hit at that spot. This place is about 40 paces from the station platform. Tanu accused then shot at Girdharis chest twice. Bachchu on returning to Ram Singh fired at his chest. The result was that Girdhari and Tanu died immediately.

3. This incident is said to have taken place at about 8-30 a.m. The departure time of the train leaving for Unnao was 8-47 a.m. Badlu, brother of Girdhari went to police station Achalganj about four to six furlongs away and lodged a report there which purports to be taken down at 9-30 a.m. The main difference between the version given in this report and that narrated in Court is with respect to Bachchus shooting at Ram Singh after he had fallen down. No such allegation was made in the first information report. We shall deal with its contents later.

4. Puttu Lal, Sub-Inspector, proceeded at once to the spot, found the dead bodies near the railway station, prepared the inquest reports and sent the bodies for post mortem examination. According to him he reached there at about 11 oclock. Station officer, Sheo Narain Singh, reached the spot shortly after his arrival. Station officer Sheo Narain Singh found four spent cartridges and one buckshot near the dead body of Ram Singh and five empty cartridges, five buckshot and three wads near the dead body of Girdhari. The live buckshot found near Girdharis body and the one found near Ram Singhs body appear to be similar to one another and also to one pellet recovered from the body of Girdhari at the post mortem examination. The station officer also found two empty cartridges in the grove of Sheo Ram.

5. He examined Badlu, Hari Shankar and Lallu prosecution witnesses on the 4th January, Lalli alias Raghunath and Ram Bharosey on the 7th and Raja Ram, Bansidhar and Ram Charan on 9-2-1951. He reported for the recording of the statements of Badlu, Hari Shankar, Lallu and Raja Ram under S.164, Cr.P.C on 10-2-1951. Their statements were so recorded on the same day.

6. Both the accused denied the prosecution allegations in their statements before the Committing Magistrate and did not not say anything further about the incident or about their defence. They simply stated that the prosecution witnesses deposed against them as they were their enemies and were friends of Girdhari. In the Sessions Court Tanu alleged alibi stating that he was proceeding to Unnao that day for the hearing of his case and that learning there at the station about the arrest of his two brothers in connection with these murders, he continued his journey to Lucknow. He also suggested that the deceased had many enemies thereby suggesting that they might have been killed by others. Bachchu also alleged his alibi stating that he had gone to Lucknow that day and had lodged a report there about the loss of his box and that he had lodged a complaint in the complaint book about