( 1 ) THE appellant has been convicted and sentenced for having committed an offence punishable under S. 302 IPC read with S. 34 IPC by the session Judge, Raichur in SC. 29 of 1973. He has, in this appeal, challenged the conviction and sentence.

( 2 ) THIS case has a history of its own. At 1 A. M. on 28-6-1960 one shivabasappa was stabbed while he was sleeping in his house. The house opposite to that belonged to him. Shankarappa, and Gurappa, who are sons of Shivabasappa, Shankarappa's wife and, children and PW. 5 Irayya, and pw. 6 Sofikhan who, are servants of Shivabasappa; used to slepp in that house. Shankarappa and his wife had gone to Bangalore as Shankarappa's wifo was to be treated. Virupakshappa,, Hanmappa Kali, Basayya, Irayya and this appellant, according to prosecution, entered the house where Shivabasappa was sleeping and stabbed him. Shivabasappa cried omt and pws. 5 and6 woke up. They took a lantern with them and rushed to the house. They saw the appellant, Virupakshappa and Kali Hanmappa running out of the house. They went inside and saw Shivabasappa, lying having sustained stab injuries on his body. Shivabasappa was alive and he told these persons thai t