A.N.Mulla, J. - (1.) Appellant Ram Singh has been convicted under Section 302 I. P. Code by the Additional Sessions Judge, Unnao, and sentenced to death. Five other accused persons, namely Kirpa Shanker alias Lala Misra, Krishna Kumar alias Chhuttan, Mahesh Prasad, Lallu and Brahma Kishore alias Phunnar, were also prosecuted in this case but they were acquitted. The charge against the appellant and the other accused persons was that they committed a riot with deadly weapons, such as pistols and guns, on the night between the 14th and 15th July, 1956, near the culvert of village Bighapur and in pursuance of the common object of the unlawful assembly they committed the murder of Shankeri Brahmin by shooting him dead. The learned Judge has made the usual reference for the confirmation of the death sentence awarded to the appellant. 1A. The prosecution story is that Shankeri deceased resided in village Ghatampur, Police Station Bara Sagwar, district Unnao, and ostensibly he carried on the profession of a tailor. Shankeri's wife P. W. 4 Shrimti Ramkali lived with him and his father P. W. 13 Kedar Nath Pande also resided in a nearby house. The deceased and the accused persons in this case were members of a gang of opium and Ganja smugglers and they occasionally looted motor trucks and lorries in which these articles were transported. For this purpose they used to disguise themselves in police uniforms and thus carried out their crimes. The leader of this gang was Mahesh Prasad, who was also a resident of village Ghatampur, but who ostensibly carried out some business.in mohalla Hatia Bazar in Kanpur town. Ram Singh appellant was a resident of village Hathigaon, police station Maharajpur, district Kanpur, but he resided at Bighapur in Unnao district where he sat on the shop of Brahma Kishore alias Phunnar accused. The deceased and the accused persons were on intimate terms and they used to meet frequently. Shankeri deceased possessed a gun and he also ran a flour mill in partnership with Mahesh Prasad. This flour mill was at Ghatampur, but for some reasons it had closed down since about two years before the incident. In the course of their transactions Shankeri deceased had become indebted to Mahesh Prasad upto Rs. 500/- and Mahesh Prasad frequently demanded his money. Mahesh Prasad suggested to Shankeri that he should sell his gun and pay up the amount. He even suggested that a false report about the theft of the gun might be lodged and some money might be paid to Sri Sultan Ahmed, station officer, Bara Sagwar, who would not investigate the matter. It may be mentioned that according to the prosecution case Sri Sultan Ahmed was in league with the gang of Mahesh Prasad and he used to receive frequent payments from the members of this gang. There was a rival gang led by Ram Kumar and his brother Lallan and the relations between the two gangs were highly strained. Shankeri deceased instead of following the advice given by Mahesh Prasad contacted Ram Kumar, who gave him some money and Shankeri paid back the debt of Mahesh Prasad. This created a suspicion in the mind of Mahesh Prasad that Shankeri had now joined Ram. Kumar's gang and was thus a source of potential danger. It was, therefore, decided by Mahesh Prasad and the other members of bis group to kill Shankeri. Some 10 or 11 days before the incident the appellant and Phunnar had some talk with Shankeri in which some threats were extended. The deceased retaliated that he would expose Mahesh Prasad and Phunnar in the matter of a bomb explosion case. It so appears that some time before the incident Ram Kumar and his brother Lallan were injured in a bomb explosion. This perhaps made Mahesh Prasad find his companions all the more determined to kill Shankeri.
(2.) According to the prosecution the conspirators met on the afternoon of 13-7-1956, in village Bighapur at a place known as Phunnar's Phatak. It was decided to kill Shankeri and so the next day i.e. on 14-7-1956, the appellant and Phunnar came to Shankeri's house at about midday and took him with them to Pandepur for making some purchases. Shanked deceased came back to his house at about 5 in the evening and shortly afterwards the appellant and Phunnar again came to his house and told Shrimati Ramkali, the wife of the deceased, that Shankeri was going out to dine with them. Shrimati Ramkali saw that the deceased took out his Khaki clothes, his gun and cartridges, his torch and some other personal articles and then went on a bicycle with the appellant and Phunnar. One Jagdish barber (P.W.5), who was a servant of the deceased, accompanied the party upto Hardewan temple winch was at a short distance, but he was sent back from there by the deceased. The way Shankeri had departed did not excite any suspicion in the mind of Shrimati Ramkali because Shankeri occasionally went out in this manner. When, however, Shankeri did not return home, Shrimati Ram-kali felt a little anxious and informed her father-in-law Kedar Nath about it, but her suspicions were quietened by Kedar Nath who said that Shankeri would come back next morning. Next morning i.e. on 15-7-1956, at about 8 in the morning Manohar, a servant of Phunnar came and informed Shrimati Ramkali that her husband had been shot dead and his body was lying near the culvert of village Bighapur. This culvert was about two miles away from village Ghatampur. Shrimati Ramkali along with her father P. W, 28 Beni Madho and some others rushed upto the culvert and found the dead body of Shankeri lying just below the culvert with three pistol shots. Phimnar's brother Dhunnar and Kirpa Shanker alias Lala Misra were present near the corpse and they told Shrimati Ramkali not to say anything till the arrival of Mahesh Prasad and the police. It was in these circumstances that no information was sent to police station Barasagwar which was about eight miles away. At about 5 in the evening Sri Sultan Ahmad came with Mahesh Prasad and it is alleged that it was at this time that a report was dressed up by Sri Sultan Ahmad and Ganga Krishna (P. W. 37), the brother of the deceased, was given the role of dictating this report. P. W. 16 Ram Narain who was present at the spot was sent to police station Bara Sagwar with this report and it was lodged on the night of the 15th of July, 1956, but the time of this report was not correctly recorded and on the instructions of Sri Sultan Ahmad it was ante-timed. It purported to have been lodged at 9.15 A. M. on 15-7-1936.
(3.) The contents of the report were also mutilated by Sri Sultan Ahmad because he was out to help Mahesh Prasad and his companions and so no accusation was levelled in this report against any known person.;