Khan J. - 1. Sumersingh son of Jahan Smgh, resident of Tharkheda has been convicted by the Additional Sessions Judge, Shivpuri. under Sec. 302 IPC for the murder of Koksingh and sentenced to death. The accused has filed Appeal No. 67 of 1961, and, the learned Additional Sessions Judge has also submitted the record of the case under Sec. 374 Cr. P. C. for the confirmation of the death sentence which is numbered as Criminal Death Reference No.2 of 1961. Both the appeal and the Reference are being disposed of by a single judgment.

2. The prosecution story is that Koksingh deceased owned a field which was adjacent to the field of Sumersingh, the present appellant. A few days before this incident, they had had an altercation, because the deceased Koksingh demolished the "Bhanwar" constructed by the accused at his well. The accused complained about this behaviour of Koksingh to Bhagirath, P.W. 11, who tried to pacify the accused by saying that he would get the Bhanwar "repaired". But it seems that the accused was not satisfied with the assurance given by Bhagirath. It is said that on account of this grudge, which the accused here to the deceased, in between the night of 12th and 1