CHANDRA PRAKASH, J. - (1.) THESE two appeals are against the order dated Oct. 23, 1973 of Shri M.L. Agarwal, Sessions Judge, Kumaun, convicting appellant Avdhesh Kumar Dixit under Sections 302, I.P.C. and 307, I.P.C. and sentencing him to death under the former and to 10 years R.I. under the latter and convicting Dilshad appellant under Sections 302/34, 307/34, I.P.C. and sentencing him to life imprisonment under the former and to seven years R.I. under the latter. The appeal by Avdhesh Kumar Dixit is No. 2953 of 1973 while the appeal by Dilshad is No. 2997 of 1973. The sentences were directed to run con-currently. There is also the usual reference under Section 374, Cr.P.C. for the confirmation of the death sentence passed on Avdhesh Kumar Dixit.
(2.) THE appellants along with three others, viz., Susil Kumar, Pradip Kumar and Rajesh Sah, were prosecuted for forming a criminal conspiracy for committing the murder of Satyendra Singh, Bisht alias Sweetie (deceased) and for attempting to kill Surendra Lal Sah (P. W. 2). The prosecution story in brief was as follows. Rajesh Sah accused acquitted contested the election for the post of Secretaryship of D.S.B. Government College Union, Nainital, in 1971 against Kunds Singh. Satyandra Singh Bisht alias Sweetie (deceased) was a supporter of Kundan Singh. Mahendra Singh Pal was a candidate for Presidentship. The elections were to take place on September 3, 1971. Satyendra Singh Bisht in the night between September 1 and 2, 1971 was coming along with Mahesh Chandra Bajetha (P.W. 20) and Pushkar Pal Singh (P. W. 23) from D. S.B. Government College to Talli Tal after fixing posters in connection with the aforesaid election. When they reached the Dat they saw Dilshad appellant who had a barber's shop at a few from the Dat on the Nainital-Haldwani Road under Indra Pharmacy tearing of the posters supporting the candidature of Mahendra Singh Pal near Gandhi Statute. Rajesh Shah accused acquitted was also with Dilshad along with some other students. Satyendra Singht Bisht gave a beating to Dilshad appellant for tearing of the posters favouring Mahendra Singh Pal and abused Rajesh Sah. Dilshad admitted his mistake and prayed for forgiveness. The matter ended there and Rajesh Sah lost the election and Kundan Singh was elected. It is said that on this all the five accused in this case, including the two appellants, hatched a conspiracy to commit the murder of Satyendra Singh Bisht. In pursuance of the conspiracy Satyendra Singh was murdered near the north-western corner of Paradise Restaurant at about 6.45 p.m. on October 9, 1971 by Avdesh Kumar Dixit appellant in the presence and at the instigation of Dilshad appellant in Bara Bazar, Malli Tal, in the city of Nainital. At that time the complainant Bhoopal Singh (P.W. 1) and Vinod Kumar Mehrotra (P.W. 3) were in Paradise Restaurant in connection with their taking tea there. At about 6.45 p.m. Avdhesh Kumar Dixit along with Dilshad appellant came. Dilshad stopped Satyendra Singh Bisht and slapped him. Satyendra Singh Bisht tried to catch hold of Dilshad but in the meantime Avdhesh Kumar Dixit gave a knife blow to Satyendra Singh Bisht on the left flank thereby causing him a two inch deep injury. Surendra Lal Sah (P.W. 2), Bhuwan Chandra Pant and Ishwar Chandra Joshi who came along with Satyendra Singh Bisht, out of Lala's cafe and of which was at about 10 or 12 paces to the north, were there. Surendra Lal Sah (P.W. 2) tried to catch hold of the appellant Avdhesh Kumar Dixit but the latter gave a knife blow to Surendra Lal Sah also on the back right side. Surendra Lal Sah sustained an inquiry about one inch deep. Bhoopal Singh (P.W. 1) and Vinod Kumar Mehrotra (P.W. 3) saw the incident and this incident also drew the at tention of Padam Chand (P.W. 17) and Lakhpat Singh (P.W. 21), who were standing at a Pan shop nearby. All these witnesses saw Avdhesh Kumar Dixit running away with an open knife in his hand and was accompanied by Dilshad appellant. Padam Chand also saw that the other three accused, viz., Rajesh Sah, Sushil Kumar and Pradip Kumar, were running away downwards. There was ample electric light at that place on account of street lights and also on account of the lights of the shops which were open on account of the autumn season.
(3.) BHOOPAL Singh (P.W. 1), who is the maternal uncle of Satyendra Singh Bisht (deceased), ran to Malli Tal Police Station, which was only one or one and a half furlongs away from the scene of incident and lodged the first information report (Ex. Ka-1) there at about 7 p.m. Satyendra Singh Bisht also ran up to the shop of Laxmi Chand but he fell down in front of that shop. After lodging the first information report Bhoopal Singh (P.W. 1) returned back to the scene of incident accompanied by the Station Officer Jaipal Singh (P.W. 25). Jaipal Singh (P.W. 25) found Satyendra Singh Bisht in front of Laxmi ?hand's shop in an injured state. He took him to B.D. Pandey Hospital. At the hospital Jaipal Singh interrogated Bhoopal Singh (P.W. 1), Satyendra Singh Bisht (deceased) and Surendra Lal Sah (P.W. 21). He also took the blood-stained clothes of Satyendra Singh Bisht and Surendra Lal Sah in his possession. He then prepared the site-plan (Ex. Ka-20) of the scene of incident. He further took blood-stained earth and unstained earth from the place of occurrence. He found sufficient light on account of electrification at the place of incident. He tried to contact Vinod Kumar Mehrotra (P.W. 3) but the same was not available.;