JUDGMENT

1. These are appeals by Sripal, Nibar and Bachchu who have been convicted by the learned Additional Sessions Judge of Gonda by his order dated 12th November 1932 of an offence of murder under Section 302, I.P.C., and sentenced to death. The reference for confirmation of the death sentences is also before us. The case for the prosecution is briefly as follows:

2. On the night between the 29th and 30th May 1932, Amir Ali of village Madarnagar was sleeping in the outer compound of his house. His two wives Basiman and Hashmul were sleeping in the adjoining zenana house and his brother Sardar Ali was sleeping at the outer door of the compound in which Amir Ali was sleeping. Sardar Ali and the two ladies were awakened about midnight by the noise of the attack of Amir Ali. On opening the door of the zenana house, Mt. Rasiman and Mt. Hashmul saw their husband in the grip of some persons one of whom was sitting on his chest, another was holding him by the mouth and the third was standing by his side with an axe in his hand. Mt. Easiman rushed to the place and covered her husband entreating the assailants not to cause him any harm, upon which the latter began to beat her with lathis. Mt. Hashmul also received a lathi blow when she entreated the assailants not to kill her husband. She then ran to call her husband's brother Sardar Ali who was sleeping outside, but did not find him there. Sardar Ali when he woke up found nine or ten men standing near his bed and was beaten by them with lathis. However, he managed to escape and ran away shouting towards village Panditpurwa close by from where he brought assistance after half an hour. In the meantime Wazir Ali, another brother of the deceased who lives in a separate house, was roused by the cries of Mt. Rasiman and Mt. Hashmul and ran to Amir Ali's house. He was also assaulted with lathis by five or six persons who were present there. On the approach of the village people the assailants left the place. Sardar Ali, and Wazir Ali when they went inside found the dead body of Amir Ali lying on the ground near his bed. Wazir Ali sent one Nawab Ali to Itia Thok police station for making a report of the occurrence. He reached the police station which is at a distance of five miles from the village and made the report the next morning i. e., on 30th May at 8 o'clock.

3. The second officer of the Itia Thok police station at once proceeded to the village Madarnagar, reached there at about 10 a. m. and took up the investigation. He recorded the statements of the two widows and the two brothers of the deceased Amir Ali the same day. The officer in charge of Itia Thok police station, Sub Inspector Mewa Ram, who was on leave on the date of the occurence, rejoined the police station on 4th June 1932. He took up the investigation in his own hands on 5th June and re-examined the aforesaid four witnesses. His suspicions were excited against Mashooq Ali, a cousin of the deceased, and one Ali Raza. He arrested Sripal, appellant, on 12th June 1932 and recovered from him one dhote, one shaluka, one axe, some pieces of a handle and a few chips of wood for fitting the handle into the blade of the axe. Sripal made a confession which was recorded in jail by Kuar Lal Bahadur, a Magistrate of the First Glass, on 14th June 1932. Bachchu, appellant, was arrested on 18th June and Nibar, appellant, on 21st June. Nibar also made confession which was recorded by Mr. A.R.S. Day, another Magistrate of the First Glass, in the Gonda district on 22nd June. After completing the investigation the police prosecuted the three appellants named above, Mashooq Ali and one Ram Samujh, who were committed to stand their trial before the Court of Session under Section 302/109, I.P.C. The story told by Sripal in his confession was that Mashooq Ali had promised to give him Rs. 100 if he would kill his cousin. He named ten persons whom he collected at his house and added that two or four men whose names he did not know had come with Pa