R. S. MOHITE, J.

( 1 ) THE appellant rajkumar Anandilal (hereinafter referred to as accused) has filed this appeal impugning a judgment and order dated 17-7-1999 passed by the IV Additional Sessions Judge, Jalgaon in Sessions Case No. 293 of 1995, holding the accused guilty of committing an offence punishable under Section 302 of the Indian penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs. 500/-, in default to suffer further R. I. for a period of six months.

( 2 ) THE brief facts of the prosecution case were as follows : (a) That, on 23-7-1989, at about 12. 30 p. m. , P. W. No. 4 Aslam Khan Hussain who was a crane operator in the railways,, was on only duty on the crane at the railways steam loco shed at Bhusaval. He was loading, coal in the railway engine by crane. At about 12. 30 to 12. 45 p. m. he got down from his crane and saw the accused Rajkumar passing by. Rajkumar told P. W. No. 4 Aslam that he was going to have a cup of tea. They both walked for some distance talking with each other. While they were so walking they saw a boy putting coal into a gunny bag. They went towards that boy and the accused accosted the boy. On being questioned by the accused that boy told him that he was taking coal for the deceased Jainuddin Mohd. The accused allowed him to continue to load the coal. At that time the deceased Jainuddin arrived at the spot. The accused Rajkumar told Jainuddin that he should not be afraid and should continue with his work. Jainuddin then tied the gunny bag containing coal and put the bag on his bicycle and asked the accused to have a cup of tea in his canteen. Accused then walked 8 to 10 ft. away from Jainuddin, pointed his rifle towards the Jainuddin and fired a shot from his 303 rifle at Jainuddin. The bullet hit jainuddin on the right side of his chest. The accused then fired a second shot which hit the deceased and Jainuddin fell down. A third bullet was fired by the accused in the direction of the boy but the boy ran away but that bullet hit a railway wagon. The accused then tore off his clothes, scratched his left hand, took out knife from his person and placed it near the body of Jainuddin. All this was witnessed by P. W. No. 4-Aslam Khan from a distance of about 10 to 12 ft. The incident in question took place below a electric pole and the bulb on this pole was on. P. W. No. 4 Aslam Khan then boarded an engine and narrated the said incident to the Engine driver Anand. He then went towards the crane and narrated the incident to one Mangalsingh. After the incident, he had seen that the accused was searching something on the ground and was dancing. Mangalsingh told him to over look the matter. P. W. No. 4 then restarted his work in the crane and later on saw that some R. P. F. men had gathered on the spot. (b) The boy who was along with deceased Jainuddin was P. W. No. 5 Rajesh atrawalkar. After running away from the spot rajesh went to the house of the deceased and informed about the incident which he had witnessed at the loco shed. On learning about the incident from Rajesh, the brother of the deceased Jainuddin by name Mohammed maikan proceeded to file a complaint in the office of the railway police at Bhusaval. Initially the police refused to register his complaint but ultimately on 24-7-1989, the railway police recorded the complaint and recorded a spot panchanama and seized the gun of the accused. However, they did not take any further action on the said complaint. In the circumstances, the complainant Mohammed Habib lodged a private complaint on 1-8-1990 in the Court of judicial Magistrate First Class (Railways) at bhusaval. The Magistrate found that there was a prima facie case made out against the accused under Section-302 of the Indian Penal Code, he issued process against the accused. As the offence made out was exclusively triable by the Court of Sessions, the J. M. F. C. ultimately committed the matter to the court of Sessions. (c) After committal, the