JUDGMENT

S. RATNAVEL PANDIAN, J.:- This appeal is preferred by the appellant, Ramdeo Rai Yadav, who was the first accused in the Sessions Trial Case No. 9/84 in the Court of 2nd Additional Sessions Judge, Darbhanga, challenging his conviction under S. 302, I.P.C. and the sentence of imprisonment for life imposed therefore.

2. Adumbrated in brief, the facts of the prosecution case are as follows :

This appellant and four other accused who all were arrayed as accused Nos. 1-5 took their trial under S. 396 of the Indian Penal Code, alternatively under S. 302, I.P.C. on the allegations that on 6-5-1983 at about 8.00 p.m. they all while attempting to commit dacoity in the house of one Santosh Kumar Pansari (PW-8) in Mohalla Senapat of Darbhanga caused the death of PW-8s brother J. Prakash Pansari.

3. On the night of the fateful day, PW-8 was in his house. His brother, the deceased herein, Munshi Dashrath Sah (PW-2) and another Munshi Arjun Sah (not examined) were also present in a room abutting the outer verandah and were checking the account books of their family firm. At that point of time, PW-8 saw two miscreants entering the verandah and taking position near the door of the outer room. One of them was having a revolver. PW-8 saw two more persons standing behind those two miscreants. The two miscreants (assailants) who first entered the verandah threatened PW-8, the deceased and others to be silent. PW-8 and the deceased suddenly pounced upon the two assailants and started jostling. One of the assailants assaulted PW-8 with the butt of the revolver hitting his nose and forehead when the latter attempted to throw a table fan on the assailants. In the meanwhile, the deceased and the assailant who was armed with a revolver, grappled each other, moved out of the verandah and in the course of the combat fell down in the garden. All the while the deceased was shouting Dacoit - Dacoit. At this juncture, PW-8 heard sound of shooting and fell down. One of the assailants searched PW-8s pockets and then they all left without accomplishing dacoity. PW-8 moved to the garden and found his, brother dead. Nonetheless, the deceased was removed to the hospital where he was declared dead. According to PW-8, there was a fluorescent lamp being operated by battery cells shedding sufficient light in the scene locality which enabled PW-8 and others to identify the assailants. The assailants were seven in numbers and they all fled away in an Ambassador car parked near the scene house.

4. PW-12 who was the then Station House Officer of Town Thana Police Station on getting a telephonic message that there was a commission of dacoity in the house of PW-8 proceeded to the place of occurrence after recording the message, accompanied by his party consisting of a Sub-Inspector and two Asstt. Sub-Inspectors. He proceeded on his motor-cycle accompanied by his colleagues in some other vehicles in search of the dacoits, but they could not trace them. Thereafter PW- 12 returned by 9.00 p.m. to the house of PW-8 and recorded the statement (Ex. 9) from PW-8 and registered it as a case in town P. S. Case No. 165/ 83 under S. 398 and S. 302, I.P.C. At about 10.00 p.m. he inspected the scene and seized one live cartridge bearing inscription K. F. Special which was lying on the eastern side of the verandah. There were also 5 small articles like crackers wrapped by jute thread in the courtyard by the side of the verandah. All these articles were seized under seizure memo (Ex. 2). Blood stains were found in the garden where from the crackers were seized. He held inquest, recorded the statements of the witnesses and gave a requisition to the Medical Officer (PW-6) to conduct necropsy on the dead body of the deceased.

5. During the course of investigation, PW- 12 arrested all the accused including this appellant and put them on for a test identification parade. The appellant was identified by PWs 8 and 11. After completing the investigation, PW-12 filed the charge-sheet on 1-8-198