JUDGMENT

Bennet and Bajpai, JJ. - This is an appeal by one Ram Bharosey, a Kahar of Farrukhabad district, against a sentence of death u/s 302 I. P. C. and a reference for confirmation of that sentence which was passed by the learned Sessions Judge of Farrukhabad. The accused is charged with taking part in the murder of Agha Ali Khan of mauza Jhabbupur in Kaimganj circle of Farrukhabad district on the night of the l8th/19th of October, 1932. There is no doubt that on that night Agha Ali Khan was killed in the village by a number of shots, about six or seven in number fired at close range. The medical evidence shows that almost all the important organs are injured and that death was caused by numerous fatal gun shot wounds perforating the heart, stomach, liver and intestines. The medical evidence indicates that there were at least six such shots fired at deceased. A report was made at 7 a. m. on the following morning, 19th October at Kaimganj thana by Govind chaukidar of mauza Lodhaiya. This report names the present accused Ram Bharosay and two others Sukhua Kahar and Hansua Brahman as the assailants and states that there were 3 or 4 other persons whose names were not known. The report sets forth the occurrence in the same form as it has been set forth a year later in October 1932 at the sessions trial. The report states that the chaukidar was going on its rounds in the morning and at a spot between mauza Jhabbupur where the murder occurred and mauza Lodhia he met two men Puran Dhanuk and Buddha Behna. It is to be noted that neither of these persons was an eye-witness of the occurrence as Budhhu, who is an eye-witness, is a Gadaria and not a Behna. The two persons told the chaukidar that between 12 and one o'clock these three persons namely Sukhkhu Kahar, Hansu Brahman and Ram Bharosey, the present accused, killed Agha Ali Khan with guns. Agha Ali Khan had come out of his house at midnight and asked his servants to prepare a smoke and came out again and saw 6 or 7 persons standing. They flashed an electric torch and Agha Ali Khan asked who they were and Budhhu replied that it was he, Sukhlal. Agha Ali Khan knowing that these men were his enemies fled towards the house of the mukhia. The men chased him and when he reached the house of Budhhu Gadaria the men fired at him and killed him. The cause of murder was the enmity with Ram Bharosey and Jalil Khan against Agha Ali Khan. Now one off the point which defence counsel tries to establish is that this first report does not mention the frames of the three eye-witnesses. As regards one of these persons Shyam Lal, it is admitted that he could not come forward and state he was an eye-witness until some month later. Learned Counsel argues that the name of Hira Chikwa and Budhhu Gadaria should have been mentioned in the first report. Now if the chaukidar had gone to the village of Jhabbu Pur and made enquiries on the spot there would be some force in this comment, But the first report shows that the chaukidar met his two informants at a place some distance from a village and he does not say in his report that he went to the village. On the contrary he says towards the end of his report that ;he sent his two informants to the Sub-inspector whom he knew was at Nagaria and that he came to make a report himself. This indicates that he did not go to the village to make enquiries before he went to the thana. This is further confirmed by the last sentence in his report that correct particulars will be known on the spot.

2. Now when the chaukidar was produced at sessions as a witness one year later, he said that before making a report he did go to the spot. He was given the names of the three accused persons in the report by Shyam Lal, Budhhu Gadaria, Abdul Aziz Mukhia and two of four others He was asked, why did he not mention this fact in the first report and he said he made a mistake in not mentioning it in the report. Now he was not asked whether he was told on the spot that Shyam Lal Kurmi an