JUDGMENT

H.C.P. Tripathi, J. - Appellant Narain Singh and his brother Lal Singh have been convicted by the learned temporary Civil and Sessions Judege, Bulandshahr, on the charge of murder and Narain has been sentenced to death u/s 302 IPC and Lal Singh to undergo imprisonment for life u/s 302 read with Section 34 IPC. Bahori an eleven years old son of Narain Singh who too was sent up for trial u/s 302/34 IPC was convicted by the learned Sessions Judge for an offence u/s 352 IPC and was released after due admonition. The two brothers have come up in appeal against their conviction and sentences and the learned Sessions Judge has made a reference for the confirmation of the sentence of death inflicted on Narain.

2. The prosecution story may be stated briefly.

The two Appellants and deceased Gopali resided at village Karora within the jurisdiction of police station Pahaso in the district of Bulandshahr. About two years back Gopali and his brothers had purchased the mango crop of the grove of one Bahori Singh in the village. On 5-5-1965 at about 12 noon Gopali (deceased) and Kanhai (PW 8) were sitting in the said grove and watching the mango crop. Appellant Narain came in the grove with his three cows. Gopali raised an objection to the presence of cows in the grove which led to an altercation between the two and Narain threatened to see him later. On the next day i.e. 6-5-1965 at about 3 p.m. the two Appellants and Bahori son of Narain again visited the grove along with three cows. They also plucked some mangoes. When Gopali protested they fell on him and threw him on the ground. Lal Singh and Bahori pressed the shoulders of Gopali while Narain crushed Gopali's testicles with his hands. On the cries of Gopali the villagers who were at their respective thrashing floors nearby rushed to the scene and witnessed the occurrence. On their arrival the Appellants bolted away leaving Gopali dead at the spot. When the miscreants were running away one Khoobi a resident of the village (PW 5) who was coming from the otherside to the grove gave a lathi below on the head of Narain. Narain bent down under its impact, recovered immediately after and then fled away.

Deep Chand brother of the deceased got a report of the occurrence scribed at the spot and handed over the same at police station Pahaso five miles away on the same date at about 4.25 p.m. giving the essentials of the prosecution story and mentioning therein that the two Appellants and Bahori had grappled with the deceased and crushed his testicles which led to his death. On the basis of this report a case was registered and investigation followed.

3. Sub-Inspector Ram Autar Tyagi (PW 9) reached the village in the evening and found the dead body of Gopali lying in the grove. He sent it for post mortem examination. He prepared a site plan of the scene and arrested Appellant Narain from his house on the next morning. The other two Appellants surrendered themselves in court on 2-5-1965.

4. The post mortem examination on the dead body of Gopali was performed by Dr. J. Section Sood (PW 5) on 7-5-1965 at 2 p.m. at the district hospital, Bulandshahr who found an ante-mortem abraded contusion 4" 4" over both the sides of the scrotum of the deceased and his testicles contused. Death in medical opinion was due to shock and haemorrhage on account of contusion of testicles.

5. At the trial, Appellants pleaded not guilty to the charges. Both before the courts of the committing Magistrate and the learned trial judge Lal Singh and Bahori had denied their presence at the spot and participation in the occurrence. According to them they had been falsely implicated in the case by the witnesses as they happened to be respectively the brother and son of Narain. Narain, however, has admitted to have participated in the occurrence under consideration but gave out his own version of it. According to him his two cows while grazing near the grove of Gopali had strayed in it. The Appellant who was alone went in the gro