Prabhat Kr.Sinha and Braj Nandan Pd.Singh JJ.

1. For having committed murder of Diwakar Narain Singh, an Advocate, within the court premises on 27.3.2001 around 3.00 P.M. the appellant was tried and convicted under section 302 of the Indian Penal Code (the Code, in short) and was sentenced to death which gave rise to D.R. Case No. 7 of 2001 which has been heard along with Criminal Appeal no. 1 of 2002 filed by the appellant separately.

2. Shorn of details, the factual matrix as coming out in the fardbayan (Exhibit-3) of son of the deceased, Manindra Kumar (P.W.10) is that while he was at his house Aditya Kumar Singh, Advocate (P.W.5) came and informed that someone had stabbed his father at which he came with him and found his father lying dead near the southern urinal situated within the premises of the civil courts in a pool of blood and the people assembled there informed him that the appellant had committed murder with dagger. This appellant, who happened to be informants uncle in relation, was also married with the informants mothers sister and had enmity. The reasons for enmity have also been mentioned in the first information report such as dispute for homestead land and because the deceased used to sermon him against selling the lands and beating his wife. Against his selling of the property for satiating his drinking habits, the sister and children had filed a partition suit in which the case was looked after by the deceased, being an Advocate, which was decided in their favour. It was also mentioned that the appellant had filed a suit for divorce in which the deceased used to represent the wife. For these reasons the appellant earlier also had threatened the deceased and on the date of occurrence itself at 7.00 A.M., the appellant had visited the house of the deceased and had an altercation with him.

3. In his defence the appellant denied his complicity in the alleged crime and witnesses were suggested that because of enmity the appellant was falsely implicated, The prosecution, in order to support its case has examined as many as twelve witnesses and three witnesses were examined as Court Witnesses. Out of the witnesses, P.W.9., Dr. Afaque Ahmad Lari had conducted autopsy upon the dead body whereas P.W.12, Murari Lal Sharma was the Police Officer who had conducted the investigation. P.W.11, Ganesh Singh, also a relative of the deceased, has deposed as eye-witness whereas P.W.2, Ratnakar Narain Singh, brother of the deceased and other witnesses have lent supporting hands.

4. In course of arguments it was not denied, rather it was admitted, that the murder had taken place on the date and time as alleged but the complicity of the appellant in that was the point which was argued against by the learned counsel for the appellant. Many of the witnesses are Advocates practicing in the civil courts at Sitamarhi and they have supported the fact about killing of the deceased near urinal, around 3.00. P.M. In this regard the evidences of P.W.1, Balram Singh P.W.5, Aditya Kumar Singh P.W.6, Birendra Prasad Singh P.W.7, Gajendra Kumar P.W.8 Uma Shankar Prasad Singh, Court Witness no. 1, Chandra Bhushan Sharma, Court Witness no.2 Bimal Kumar Shukla and Court Witness no.3, Arun Kumar Singh, besides P.W.11, Ganesh Singh may be seen.

5. Before coming to the arguments of the learned counsel for the appellant, first a glance over the evidence that has been relied upon by the prosecution to prove the allegation, P.W.11, Ganesh Singh said that Diwakar Narain Singh was murdered at about 3.00 P.M. on the date of occurrence, on which date he had gone to the civil courts at Sitamarhi to meet him for taking legal opinion. This witness said that, asking him to stay, the deceased proceeded towards the urinal at the southern gate but while he was proceeding, this witness saw that the appellant came and gave a knife blow which the deceased fended off his hand, but fell down. After this, the appellant gave two to three knife blows to the de