D. N.ROY, J. :

Brijesh Kumar, aged twenty years, and Shiv Narain alias Shiv Charan, aged twentyeight, were charged along with one Lakhi with offences punishable under Ss. 302 and 201, I. P. C., read with S. 34, I. P. C. Lakhi has been acquitted. The other two have been sentenced to death under the first count and to two years rigorous imprisonment under the second count. They have appealed against their conviction and sentences. Along with their appeal there is the usual reference by the learned Sessions Judge for the confirmation of their death sentences.

2. The charge against the appellants was that on the night between the 19th and 20th of June, 1956, between 10 p. m. and 1 a. m. they committed, in furtherance of their common intention, the murder of Battu Mal somewhere in the jungle of village Duhai and they caused the dead body to disappear with the object of escaping punishment.

3. Briefly stated the prosecution story was as follows : Lala Battu Mal was a shopkeeper of Ghaziabad and was possessed of considerable property. He had brought up Brijesh Kumar and he proposed eventually to adopt him at the time of his marriage. Latterly, friction developed between the two because Battu Mal objected to Brijeshs absenting himself from work and indulging in satta gambling.

The antagonism was aggravated when Brijesh wanted to marry a Punjabi refugee girl. The proposal was not acceptable to Battu Mal. On 19-6-1956, Battu Mal left Ghaziabad for Garhmukhteshwar to take a bath in the Ganga on the occasion of Ekadashi. It is said that he returned back to Ghaziabad by the night train on the same date at about 10 p. m. and was met at the station by the two appellants along with Lakhi.

Shiv Narain appellant and Lakhi were the friends of Brijesh. The prosecution alleged that Battu Mal was taken off by them in a car bearing No. U. P. R. 7545, which Brijesh had purchased that very day with the assistance of Shiv Narain. The car was driven to a place near village Duhai about five miles out of Ghaziabad on the Meerut road. Battu Mal, it is said, was then induced to get down from the car and was taken to a field about two furlongs away from the road where he was murdered with a gandasa.

It is further said that his dead body was dragged back to the car and was taken to the Ganges canal about four miles further on towards Meerut where it was thrown into the water by Shiv Narain and Lakhi along with the gandasa with which the murder had been committed, along also with the umbrella. Jhola and other articles which Battu Mal had taken with him to Garhmukhteshwar.

Next morning Battu Mals wife Smt. Chaoli became alarmed at the failure of her husband to return home and she sent for Brijesh and asked him to telephone to Battu Mals brother Anand Sarup who lived in Hapur.

4. A belated report Ex. P-13 regarding Battu Mais disappearance was lodged with the police by Brijesh on 20-6-1956, at 8 p. m., but nothing further was done until June 22 when the Sub-Inspector commenced investigation and he recorded the statements of certain witnesses. On 25-6-1956, Brijesh is said to have told the Sub-Inspector that he could point out the place where the murder was committed and he led him together with the witnesses to a field near Duhai where blood-stained earth was recovered.

Shiv Narain, likewise, is said to have led the Sub-Inspector and the witnesses to the canal from where the gandasa Ex. 10 and Battu Mals umbrella, Jhola and other articles Exs. I to VIII and XI, XII, XVII and XVIII were recovered from the water. On 25-6-1956, the car in which Battu Mal was taken to the scene of murder was also recovered by the Sub-Inspector, on being pointed out by Shiv Narain, from the gher of one Amar Singh in village Ujera, the village to which Shiv Narain belongs, situated near the canal about four miles from the main road.

At the pointing out of Brijesh the Sub-Inspector, it is further said, recovered in the presence of the witnesses from the dukarya of Battu Mals shop in Gh