H. R. KRISHNAN, J.

( 1 ) THE two appeals relate to the same matter as the death reference, one memorandum being sent from jail and the other filed by counsel in Court. The appellant had been put on trial along with two others--his brother-in-law, Kaluji gujar, and his nephew, Samandar Gujar son of Kaluji--under different sections including 302, 302 read with 34 and 452 I. P. C. the allegation being that the present appellant, condemned man, trespassed into the house in which Amarji was resting, and killed him by hitting him on the head several times with a weapon that has been described as "pasliwali lohangi" and causing a number of incised wounds including one which fractured the skull and damaged the brain. This is said to have happened at about 2. 00 p. m. , on 7-11-1902 when Amarji had come to his brother Balaji's house after an earlier incident at the fields between half and one mile away, where Kaluji and his sun are said to have hit him with lathis. They were all jointly committed as the enquiring magistrate felt that the two incidents, namely the attack with lathis by Kaluji and his son at the fields and the latter attack by the appellant Lachhman with a pasliwali lohangi at Balaji's house were part of the same transaction The learned Sessions Judge himself after rejecting a prayer for the splitting up of the case into two--one against Kaluji and Samandar and the second against the present appellant framed a formal charge under section 302 with 34 against all the three. Finally however, he acquitted Kaluji and samandar of the charge of murder as there was no common intention and convicted them for causing simple hurt. They have not appealed. The present appellant he has convicted under Section 302 I. P. C. and sentenced him to be hanged subject to confirmation by the High Court. He has also convicted him under section 462 and sentenced him to rigorous imprisonment for two years which sentence is to take effect in case the death sentence is set aside and concurrently with any other substantive sentence he might he awarded.

( 2 ) THIS appeal is of Interest on several grounds, in particular, the legality and effect of the joint trial before the Sessions Judge of all the three; the peculiar problems raised by the nature of the injuries on Amarji and the medical evidence before the Sessions Court; and Anally, the propriety of the capital sentence, the last in view of the learned Sessions Judge's assumption that in some other case a direction has been given by the High Court which was binding on him, that in cases like the instant one, the death penalty should be awarded.

( 3 ) THE facts of the case are simple. Between the present appellant on the one side and Amarji and his brother on the other, there had been quarrels in the past centering round their conflicting claims to cut and remove the grass from a seda or strip of land intervening between their respective fields. Between Kaluji and Amarji also there was a difference exactly of the same nature though it is not clear if the seda concerned is different in the two disputes or whether it is the same, Kaluji and Lachman making a common cause against Amarji because of their close relationship. From time to time there had been reports to the police; but two events are worth mention on 2-8-1062 there was a quarrel between Lachman gujar on the one side and Amarji and Balaji on the other about the cutting of the grass on the seda; in course of the quarrel it was alleged that both the brothers used force, Amarji actually hitting Lachman with a farsi injuring him and also cutting away the toes of a young child which Lachman was holding in his arms at that time. A case under Section 326 I. P. C. started in this connection was still pending on 7-11-1962 when the present more serious incident took place. It seems there was also a case under Section 107 Criminal Procedure Code soon after started at the instance of Amarji, against Lachman as well as Kaluji.

( 4 ) ON the date of this

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