JUDGMENT

FAIZAN UDDIN, J.-

Sushil since deceased, Tapeshwar and Ram Niwas were charged and tried by the First Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 294 of 1980 under Sections 302/34 IPC for murder of one Jai Prakash. Learned Additional Sessions Judge by his judgment dated 27-8-1981 convicted them under Sections 302/34 of the Penal Code and sentenced each of them to undergo life imprisonment. The said conviction and sentence has been further affirmed by the High Court of Allahabad in Criminal Appeal No. 1912 of 1981 decided on 29-11-1982 against which this appeal after grant of special leave has been preferred.

2. According to the prosecution a day earlier to the occurrence there was an altercation between the deceased Jai Prakash and the appellants when the appellants had threatened to kill him. On 15-8-1982 at about 5.45 a.m. the deceased Jai Prakash along with his uncle Hoshiyara PW 2 had gone to the jungle close by to their village to answer the call of nature. At about 6.30 a.m. after they had eased themselves, Hoshiyara cleaned his hands and when the deceased Jai Prakash was cleaning his hands it is at that point of time that the accused Sushil, Tapeshwa