Prafulla C. Pant, J. — This appeal, preferred under Section 374(2) of Code of Criminal Procedure, 1973, is directed against judgment and order dated 31.01.1989 passed in Sessions Trial No. 256 of 1986 by learned IVth Additional District and Sessions Judge, Nainital, whereby he has convicted appellant No. 1 Dungar Singh under Section 302 of

Indian Penal Code, and appellant No. 2 Bhawan Singh under Section 302 read with Section 34 of the said Code, and sentenced each of them to life imprisonment and also to pay a fine of Rs. 2,000/- with further direction that in default of payment of fine, the defaulter has to undergo further six months imprisonment.

2.Prosecution story, in brief, is that on the intervening night of 16th and 17th of July, 1986, a local festival ‘Harela’ was being celebrated in the temple of Gorakhnath in Village Kaunta. At about11:00 p.m. in the house of Puran Singh, appellants Dungar Singh and Bhawan Singh had a quarrel with deceased Madho Singh and they gave threat to him that they would finish him of. After this, at about 01:00 a.m. when Madho Singh was attending the festival in the temple, appellants came there with common intention. Appellant No. 2 Bhawa