JUDGMENT

H.C.P. Tripathi, J. - These four appeals arise out of a common judgment of the learned Sessions Judge, Rampur, and they are being disposed of together. Appellant Pritam Singh was tried and convicted for having committed lurking house trespass, attempt to murder two persons, for being in possession of an unlicensed fire arm and for having committed a murder in the same series of transactions. He has been sentenced to five years' rigorous imprisonment under Section 457, I. P. C., to ten years' and five years' rigorous imprisonment respectively on two counts under Section 307, I. P. C., to two years' rigorous imprisonment under Section 25 of the Arms Act and to suffer death under Section 302, I. P. C. He has come up in appeal against his conviction and sentences and the learned Sessions Judge has made thenusual reference for the confirmation of the sentence of death inflicted upon the appellant on the charge of murder.

2. The accusations in brief against the appellant were that in the night of 16th of August, 1965, he first committed theft of fire arms and ammunitions by breaking open the shop of one Sri R. C. Anand in the town of Rampur and while escaping with the booty he committed the murder of one Banwari a rickshaw puller and attempted to commit the murder of some members of the police party who were trying to apprehend him.

3. The prosecution story in short is as follows.

4. Sri R. C. Anand (P. W. I) runs an arms and ammunition shop under the name and style of J. B. Sales in the Civil Lines of the city of Rampur. In the night of 15th and 16th of August, 1965, at about 1 a.m. he was informed at his house by head con-stable Sardar Beg (P. W. 8) that light was still on in his shop. He immediately rushed to his shop and found that it had been preferred. He checked his stocks and found seven guns, two cartridges cases containing 1162 cartridges, one cycle and his cash box missing. He scribbled in haste a report in which he gave the details of the stolen property and lodged the same at police station Civil Lines at 2.10 a.m. He deposited with the police three locks and the Padlocks of the shop which had been tampered by the miscreants. A case under Section 457, I. P. C. was immediately registered in the general diary of the police station against unknown persons and as fire arms and ammunition had been stolen the various police stations and outposts in the city were alerted to keep a watch on suspicious characters and close the outlets. Om Pratap Singh, Station Officer of the police station Civil Lines, immediately started towards the shop of Sri Anand. When he came near Jolly Radios, almost midway between the police station and the preferred shop (J. B. Sales) , he was informed by a constable that he suspected the presence of some persons behind the Radio shop. Om Pratap Singh went to the back side of the Radio shop most of which was covered with bushes.

5. There was a tin shed nearby lighted by an electric bulb. He flashed his torch towards the bushes and noticed the presence of two Sikhs who were armed with guns. When he challenged them one of the miscreants fired at him. Om Pratap and his party took shelter of the wall and returned to the front verandah of the shops. The two miscreants came to the main road and tried to run away on their respective cycles. Om Pratap fired his revolver in air whereupon they threw down their cycles and one of them returned the fire. The miscreants then ran towards the police station Civil Lines pursued by Station Officer Om Pratap and his men. After some time they took a turn on the road which connects the Civil Lines to the city of Rampur which lies at a distance of i f miles from the police station. The road is lighted all along with tube lights. While chasing the miscreants Station Officer Om Pratap reached the roadways station and from there sent telephonic messages to Kotwali and Ganj Police stations for sending police reinforcement and for taking steps for cornering the miscreants