Judgment

DUA, J.: Raghubir Singh, appellant in this appeal by special leave, was one of the three persons jointly tried by the Sessions Judge, Etah (U. P.) and convicted for the offence of murder of one Brijendra Singh alleged to have been committed on November 15, 1968. He was sentenced to death under S. 302, I. P. C, whereas his two co-accused were sentenced to imprisonment for life under S. 302 read with S. 34, I. P. C. On appeals by the three convicts the High Court acquitted Tejpal and Kundan Singh who are first cousins. Conviction and sentence of the present appellant who is the real brother of Tejpal was confirmed and his appeal dismissed. In this Court the challenge is directed against his conviction and sentence and Shri Nuruddin Ahmed appellant s learned counsel has addressed elaborate arguments in support at his challenge.

2. According to the prosecution story about 8 or 9 years before the alleged murder in question a burglary had taken place at the appellant s house and he had suspected Brijendra Pal Singh, deceased, as a culprit. Indeed, the appellant and his brother even resorted to some violence against the deceased. They were all residents of village Nagwai. After a lapse of about 5 years Brijendra Pal Singh successfully contested the elections to the office of Pradhan of the village against the appellant. The deceased celebrated his victory by taking out a procession which perhaps gave to the appellant a feeling of humiliation. After his success at this election the deceased proceeded to file a case for the appellant s ejectment from a well and succeeded in securing an order in his favour. He also filed a number of applications under S. 115 (c) of the U. P. Zamindari Abolition of Land Revenue Act against some close relations of the appellant. Tej Pal and the deceased are also stated to have secured a sale deed of a piece of land on December 26, 1967 from Jhalloo who had originally mortgaged the same in favour of Mulayam, a cousin of the appellant. As the appellant himself wanted to buy that land he did not like its purchase by the deceased. On June 29, 1968 when the deceased and his brother attempted to take possession of the said land with the help of a lawyer-commissioner (Girish Chandra Sharma P. W. 9) the accused and their relations obstructed this attempt and the commissioner had to lodge a report with the police. During the ejectment proceedings the deceased had also been asked by the accused persons in the present case to drop those proceedings lest it may have the effect of awakening the "sleeping lions". This warning went unheeded. This background, according to the prosecution story, reveals that the appellant and his concussed bore a deep grudge against the deceased and this led to extremely strained relations between the two groups.

3. On July, 1, 1968 Jhalloo was murdered. The deceased and his brother and some other inhabitants of the village were arrested in tills connection. Tejpal and Kundan Singh were cited as witnesses for the prosecution in that case. A few days before the present occurrence the deceased and his co-accused were admitted to bail. The deceased after his release on bail started residing with his father Gitam Singh (P. W. 2) at Jalesar where the latter had a cloth Shop. On November 14, 1968 the deceased and his father had come from Jalesar to their village to attend a death ceremony. The following day, i.e., November 15, 1968 the deceased left on a bicycle early in the morning for village Burhaich to see one Ram Prakash in connection with the purchase of an electric motor. That village being only about 5 1/2 miles away, he was not expected to take long to return to village Nagwai. While coming back on the bicycle all alone he was passing by the arhar field of one Ram Chandra when suddenly the three accused persons emerged from a place where they were apparently waiting for him in ambush. Kundan Singh and Tej Pal were alleged to be armed with spears whereas Raghubir Singh, appellant,