JUDGMENT

Sulaiman, J. - This is a criminal appeal from a conviction u/s 302, I.P.C. The facts relating to the murder of the deceased Fakira Chamar are perfectly clear. The 2nd April 1931 was a moonlit night on which a lunar eclipse occurred. Just about the time when the eclipse was at its maximum and there was darkness all round, the accused Pancha Chamar attacked Fakir Chamar with lathis, who was sleeping on a charpoy in front of Simru's house. Several blows fell on his bead near and above the left eyebrow and fractured his skull completely resulting in instantaneous death. The first information report was made at 8 o'clock next morning at the police station, which was one mile off, and the names of the accused and the important witnesses were mentioned in it

2. Mt. Kori, a Chamar woman, 70 years of age, whose house is across the lane and on the opposite side of Simru's house at a distance of only a few paces, got up at midnight to supply water to the wife of her nephew who was lying ill. She went out into the lane for the call of nature, and saw Pancha accused standing there and later saw him striking Fakira With a lathi. According to her two or three blows were struck in her, presence and Fakira did not utter any sound. The night was dark at the time on account of the eclipse, and the whole of the moon was covered up by the shadow. Later she saw the accused run away from the place.

3. Mauji Chamar, who is a nephew of Mt. Kori and lives in her house, was sleeping inside the house, when about 1 o'clock at night he was awakened by the cries of Mt. Kori that Pancha had killed Fakira. "When he opened the door and came out, he saw Pancha running away at a distance of a few paces. According to him more than half the moon was covered by the shadow.

4. Mt. Mahakuar, who is the wife of Simru, has stated that she was sleeping inside her house but was awake at the time of the lunar eclipse. Fakira was sleeping outside her house, and she could see his charpoy from inside the house, as he was only a few paces from her. At midnight she saw Pancha accused assaulting Fakira with a lathi and giving him three blows in her presence after which the accused ran away.

5. Besides the evidence of these three eyewitnesses there are the statements of other witnesses, who were awakened by the alarm and rushed to the place and saw the injured body of Fakira. They further prove that Pancha was named as the assailant by witnesses and was arrested on the same night.

6. The evidence is clear and has been believed by the Sessions Judge who heard it. There is no reason to doubt his finding that it was the accused Pancha who killed the deceased Fakira. In the commiting Magistrate's Court no defence was put forward except a denial that the accused had killed the deceased. In the Sessions Court an additional position was taken up that the accused was of unsound mind.

7. In the first information report the deceased's brother Raman bad himself mentioned that in the view of Mt. Kori Chamar Pancha had been under the influence of madness for several days and going about talking nonsense. In the charge-sheet prepared by Sub-Inspector Diwanchand he also stated that the accused appears to be like a mad man. No motive was specifically alleged in the first information report, but in his evidence Raman stated that two months before the occurrence there was a burglary in Fakira's house and Fakira suspected Pancha's brother Bala as the thief, and there was a quarrel.

8. Raman explained the reference in his report to the accused being mad by saying that it was based on what Mt. Kori had told him, Mt. Kori in her cross-examination also stated that when she met the accused in the lane and asked who it was he replied and gave her his name, but gave no reason when asked why he was there. She further stated that Pancha had been suffering from fits of insanity for the last two years and used to abuse his wife and wandered about in the village. Similarly Mauji Chamar has admitted that when