JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of the Gujarat High Court upholding the conviction of the accused appellant nos. 1 to 3. Four persons faced trial and the trial court directed acquittal of accused No. 4. All the accused persons were charged for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 ( in short ‘IPC’). Three appeals were filed before the High Court. Two of them were by accused No. 1 (Criminal Appeal No. 259/99) and the other Criminal Appeal No. 301 of 1999 by accused nos. 2 and 3. Criminal Appeal 380/1999 was preferred by the State questioning acquittal of original accused No. 4.

3. The prosecution version as unfolded during trial is as follows:

On 26/10/1997, at around 15.30 hours, Nainaben,daughter of deceased-Bhamraji, had gone to fetch water from a nearby public tap. As there was no supply of water in the said tap at the relevant point of time, Nianaben went to the house original accused No. 3, which was situated in the neighbourhood of her house, to fetch the same. While Nainaben was fetching water, original accused Nos. 1, 2 a