( 1 ) THIS reference under Section 374 of the Cr. P. C. for the confirmation of the sentence of death passed upon Kamal Kanto Das and his appeal arise out of his trial for having murdered Nemai Charan Das, an uncle of his. His father Netai was also put on trial along with him and the charge against both was under Section 302 of the I. P. C. read with Section 34 of the I. P. C. Netai was acquitted of the charge on a majority verdict of 5: 4. Kamal, however, was found guilty of the charge by a majority verdict of 8: 1. The learned Judge agreed with and accepted this verdict, convicted him and sentenced him to death,

( 2 ) NEMAI was a brother of Netai, father of Kamal, the appellant. Nemai used to live in Holding No. 29 which abuts on Umesh Banerjee Lane proceeding from West to East and also on another branch of Umesh Banerjee Lane proceeding from the main branch northward. Holding No. 29/1 which is in the possession of Netai lies on this northward branch of Umesh Banerjee Lane and adjoins Holding No. 29 occupied by Nemai on the north. Holding No. 29/1/1 belonging to Ganesh adjoins Nemai's holding on the north and abuts on the northward branch of Umesh Banerjee Lan