Navin Sinha, J.

1. The present two Appeals arise out of the judgment and order of conviction dated 10.1.2008 of the Additional Sessions Judge, (Fast Track Court No. 5), Banka in Sessions Trial No. 024/2000. The appellants in Cr. Appeal No. 63/08 were found guilty and have been sentenced to capital punishment under Section 302/34 of I.P.C. giving rise to Death reference case No. 4/08. The appellants in Cr. Appeal No. 166/08, likewise, have been sentenced to undergo life imprisonment under Section 302/34 of I.P.C. Appellant No. 1 in the latter appeal is stated to have been deceased during pendency of the appeal on 15.6.2009, as stated on oath by his son. The appeal, therefore, abates against the deceased appellant only.

2. The prosecution case was initiated on the Fardbayan of P.W.3, Ramanand Choudhary, son of the deceased Nakul Prasad Choudhary recorded at village Dera, by the Sub-inspector, Banka police station on 28.8.1999 at about 10.15 p.m. He stated that he was returning to his village-Dera (Choudhary Mohalla) from the Cotigandha Jaggery Mill, along with his father. When they reached near his "Gohal" (cowshed) at about 8.30 p.m., the accused who lay in wait for them, s