Judgment:

Mudholhar, J.-This judgment will govern Criminal Appeals Nos. 177 and 178 also. All these three appeals arise out of the same trial. The learned Additional Sessions Judge, Monghyr, who conducted the trial convicted the appellant, Ramachandra Chaudhary who is appellant in Criminal Appeal No. 177 of 1961 for an offence under section 302 Indian Penal Code. He also convicted Baleshwar Rai alias Nepali Master, appellant in this appeal and Jogendra Choudhary, appellant in Criminal Appeal No. 178 of 1961 of an offence under section 302 read with section 34, Indian Penal Code. He sentenced each of the three to death. Their appeals were dismissed by the High Court of Patna, and sentences of death passed against them were confirmed by it. They have come up before this Court by Special Leave.

The prosecution story is briefly as follows :-

On 17th March, 1959, at about 8.00 P.M., the chaukidars of the village Fateha had assembled, as usual, in the crime centre of the village. Their names are- Anandi Paswan (deceased), Misri Paswan (P.W. 2), Baleshwar Paswan (P.W. 3) and Narain Paswan. Anandi Paswan and Misri Paswan were lying on a chauki. Anandhi Paswan had a bhala and a muretha while Misri Paswan had a pharsa and a muretha . These weapons as well as the shirt of the deceased were kept on the chauki. The other two chaukidars were lying on the ground, The crime centre is housed in the dalan of Tilak Chaudhary (P.W. 6). One other person, Srilal Chaudhary (P.W. 7), the brother of Tilak Chaudhary, was also lying there on a khatia on the north-east of the said dalan . In an adjacent room were P.W. 11 Nathuni Chaudhary alias Durga Das and P. W. 12 Ramchander Jha.

According to the prosecution a little before 9.00 P.M., someone from outside called out " Darogaji ". On hearing this, the deceased Anandi Paswan and Misri paswan got up. It was a moonlit night and they saw Ramachandra Chaudhary, Jogendra Chaudhary and another person, who was later identified to be Nepali Master, standing close by. As soon as they went towards the appellants, Jogendra Chaudhary and Nepali Master caught the deceased while Ramchandra Chaudhary caught Misri Paswan. Both Ramchandra Chaudhary and Jogendra Chaudhary had guns with them which were slung across their shoulders. These three persons then took the deceased and Misri Paswan to the road to the East of the dalan , running north to south, and proceeded southward. Neither the deceased nor Misri Paswan raised any cry, apparently because they were threatened that if they did so, they would be shot. When the party reached a place to the west of one Peare Sao s house and to the east of the house of Rampratap Tanti (P.W. 5), the deceased called for Rampratap s help, and freeing himself from the clutches of his captors started running away westward. Upon this Ramchandra Chandra Chaudhary let go the hand of Misri Paswan and fired at the deceased. Misri Paswan then ran into the house of Peare Sao and took shelter there. While entering that house, he heard a second gun shot. His presence in the house was detected by Mst. Ajo (P.W. 8), the wife of Peare Sao who forced him to leave the house. Thereafter he came out into the lane and concealed himself behind the door. After the moon had set and it became dark, he went to the house of Fakir Paswan (P.W. 4), which is to the east of the house of Peare Sao, and narrated the occurrence to him. He mentioned Ramchandra and Jogendra as the two persons who had taken part in the incident. In the early hours of the morning he went to the place where gun shots were fired, and found Anandi Paswan, Chaukidar lying dead in a ditch by the side of the road, face downwards. He noticed that Anandi Paswan had received two gun shot wounds on his back. Thereafter he went home and contacted the other Chaukidar, Narain Paswan and Baleswar Paswan. He placed them in charge of the dead body and then went to the Police Station along with Ramdeo, son of the deceased. He lodged