S. N. Jha, J.

1. Death Reference No.2/1988 and Criminal Appeal No.272/1988 and Cr. Appeal No.307/1988 arising out of the same trial, have been heard together and are being disposed of by his common judgment.

2. Death Reference No.2/1988. He has been made in regard to Mithilesh rai who is sole appellant in Cr. Appeal No.307/1988. He has been convicted under Sec.302 of the Indian Penal Code (for short the Penal Code) for committing murder of Arun Rai and has been sentenced to death.

3. In Cr. Appeal No.272/1988, there are two appellants, namely, Madan rai and Raj Naresh Rai. Both these appellants have been convicted under section 302/109 of the Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life.

4. In trial there were five accused persons including the aforesaid three appellants out of whom two of the accused, namely, Rajendra Rai and Ramdas rai were acquitted.

5. A fardbeyan (Ext.10) was recorded by the S. I. Police of Athmalgola police station (PW ) 3) at the place of occurrence in village Dachini Chak within the Athmalgola Police station in the district of Patna on 17-5-1985 at 5.30 P M. on the statement of the informant Mahendra Rai (