Shyam Kishore Sharma and Rajendra Kumar Mishra JJ.

1. The Appellant Chandra Shekhar Matho has been convicted under Section 302 of the Indian Penal Code and has been sentenced to under go rigorous imprisonment for life by judgment dated 3.3.1989 passed in Sessions Trial No 216 of 1986 by the Learned Sessions Judge Begusarai. This appeal is against that judgment and order.

2. The prosecution case is that at about 8.00 P.M. on 31.8.1979 when the deceased Rajendra Sahni was returning to his house from Pakthouli Chowk, six persons were also with him. The further prosecution case is that when he reached near a Mahua tree on bandh, 2 three persons, namely, Sita Ram Mathon (now dead), Chandra Shekhar Matho ( Appellant) and Sarbeshwar paswan ( absconder) came up. Thereafter, Sita Ram Matho and the Appellant Chandra Shekhar Matho pumped out the bullets in the body of the deceased causing his instantaneous death. The accused, Sarbeshwar Paswan was armed with lathi but he did not commit any overt act. The persons accompanying the deceased raised alarm on which the persons of nearby villages came whereupon the accused persons reiterated. In the night vigil was kept on the dead body. In