JUDGMENT

S.D. Khare, J. - This is an appeal directed against an order dated 29-9-1964, passed by the learned Additional Sessions Judge, convicting Dhammo (appellant) under Section 302, I.P.C. and sentencing him to imprisonment for life.

2. Dhammo (appellant) is a resident of village Simor, police circle Aliganj, district Etah. The person who lost his life was Mohammad Ali, a resident of village Sarotia, which adjoins village Simor.

3. The prosecution case, briefly stated, was that on.24th March, 1964, at about 9 p.m.Mohammad"Ali (deceased) was going to his field to keep a watch over the wheat crop which was ready. On his way to the field he stayed at the field of Laukush for a short while and smoked tobacco there. He also took with him some leaves of pea crop and tied the same in his chadra so that he might be able to spread his chadra over those leaves while sleeping near his field. As he was proceeding towards his field two persons rushed towards. him. Apparently they mistook him for a thief as they said that he had stolen and was removing the wheat crop. Mohammad Ali (deceased) told them what his name was and that he was going to his field to sleep there for. the night. However, they assaulted him. In the moonlight Mohammad Ali could see the face of the person who was wielding a spear. He was Dhammo (appellant) . He could not identify the other person who was armed with a lathi. Dhammo (appellant) struck the first blow of the spear in the abdomen of Mohammad Ali. After receiving that injury Mohammad Ali turned back and tried to run away towards the abadi of the village. His assailants, however, chased him and one more spear blow was inflicted on his back. He also received one or two lathi blows. After having run for some distance Mohammad Ali fell down on the ground. The alarm raised by him attracted the attention of the villagers and also others who were guarding their fields nearby. The assailants made good their escape immediately after the arrival of three witnesses, namely, Jhannu, Dalsher (P.W. 6) and Laukush. According to the prosecution case, the witnesses named above had been able to reach the place of occurrence in time to see the occurrence.

4. The first information report of the occurrence was lodged by Hashtnat (P.W. 3) , the father of Mohammad Ali (deceased), the same night at 2.10 p.m. The distance between the place of occurrence and police station Aliganj, where the report was lodged is 32 miles.

5. Apparently there was considerable delay in lodging the first information report. The reason given by the informant himself in that report was that he could not leave his village earlier because Dhammo (appellant) and the non of his party kept on persuading him not to go to the police station to lodge the 'report.

6. There can be no doubt that the reason for delay as given in the first information Report was wholly incorrect. Hashmat (P.W. 3) in his statement before the court deposed that he took the injured first to his house and thereafter to the chaupal of Ram Sarup because one hour after the occurrence he had received information that the Thakurs of village Simor intended to remove the injured so that there may be no evidence of the crime. However, after he had reached the chaupal of Ram Sarup, Mohan Singh, the father of Dhammo (appellant) and other persons arrived and they wanted to strike at a compromise by saying that they were prepared to meet the expenses of the treatment of the injured. However, he did not agree to that suggestion and took the injured to the police station. Diwakar Sharma (P.W. 4) and All Bux (P.W. 9) give a lie to Hashmat. According to Diwakar Sharma (P.W. 4) there was no talk of compromise at the chaupal of Ram Sarup. He further stated that Mohan Singh, the father of the appellant, was not there and that some of the residents of the village Simor who had reached there were saying that when a person had been injured like that, the best thing would have been to remove him from the place o