JUDGMENT

H.C.P. Tripathi, J. - These appeals arise out of a common judgment of the learned Additional Sessions Judge of Basti and are being disposed of together. Appellant Sheo Pujan has been convicted of an offence under Section 302 I.P.C. and sentenced to death. Appellants Sheo Murat and Jeet Bahadur have been convicted under Section 302 read with Section 34 I.P.C. and each of them has been sentenced to imprisonment for life. The learned Sessions Judge has made a reference for the confirmation of the sentence of death imposed on Sheo Pujan.

2. Appellants Sheo Pujan and Sheo Murat are real brothers and appellant Jeet Bahadur is their collateral. These appellants and the deceased Indrajeet who happened to be their distant collateral resided in contiguous houses in village Dhaurahara within the jurisdiction of police station Dhanghata in the district of Basti.

3. The prosecution case in short is as follows :-

Indrajeet (deceased) was a well to do cultivator who used to lend grain on interest. The three appellants had taken grain from him on loan and had failed to refund the same. The persistent demands made by the deceased for the return of the grain had embittered the appellants against him. In the year 1963 there was a dispute between the appellants on the one hand and Inderjeet on the other relating to their sahan land and the passage leading to it which had resulted in Indrajeet and Sheo Murat filing reports with the police accusing each other of committing highhandedness and threatening with dire consequences. In September 1963 the dispute relating to the sahan land appears to have been settled l;y the intervention of the village Panches and a Panchaitnama Ext. Ka. 6 was executed as an evidence of this settlement between the appellant and the deceased. In spite of this settlement, however, the relations between the parties continued to remain strained. Summonses were received by the appellant from a criminal court at Kanpur and they entertained a suspicion that Inderjeet was responsible for getting a criminal case instituted against them at Kanpur. On February 8, 1965, at about 12 in the noon Indrajeet was returning home from his field. When he had reached near a brick kiln which lay on the way the three appellants out of whom Sheo Pujan was armed with a spear suddenly appeared. Jeet Bahadur and Sheo Murat caught hold of Indrajeet and Sheo Pujan plunged his spear in his abdomen. On the alarm raised by the victim the witnesses including his elder brother Ram Dhani ran to the scene but the appellant managed to escape. Ram Dhani found Indrajeet lying severely injured and omentum coming out of the abdomen. The injured was carried on a cot to the police station where he lodged a report giving the details of the occurrence on the basis of which a case was registered and investigation followed.

4. Indrajeet was first taken to Hainsar bazar dispensary for medical treatment. As the medical officer there was not available he was taken to the hospital at Khalilabad where his injuries were examined by Dr. R. R. Ghosh (P.W. 4) on February 9, 1965 at 8-30 a.m. who found punctured wound in the abdominal wall over the right ilisc fose through which coils of intestine had protruded out. The coils were black in colour and gangranous and impacted in the wound. As the patient was in a grave condition and pulseless on the report of Dr. Ghosh his dying declaration was recorded at 9-5 a.m. by Jagdamba Prasad, Tehsildar Magistrate (P.W. 13) and therefore he was sent to the district hospital at Basti for proper treatment. Indrajeet died in the hospital at Basti on the same date at 10-45 p.m.

5. The post-mortem examination on the dead body of Indrajeet was performed by Dr. B. B. Mathur (P.W. 5) at the district hospital at Basti on February 10, 1965 at 4 p.m. The deceased was about 25 years of age. A punctured wound in a stitched condition IF x cavity deep on the right side of adbomen was found. On internal examination clotted blood was found present