SEN, J. : This appeal is at the instance of Subodh Kumar Dhar Roy, Nityananda Sarma and Ashutosh Chandra. They were placed on trial before the learned Sessions Judge of Nadia with the aid of a Jury under Section 302/34 of the Indian Penal Code. The gentlemen of the Jury returned a unanimous verdict of guilty against all the three appellants. The learned Sessions Judge agreeing with and accepting the verdict of the Jury convicted the accused under section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life by his order dated 6th February, 1961.

2. The present appeal has been preferred against the said order of conviction and sentence. Before dealing with the points of law it is first of all necessary to set out the prosecution case in brief The victim Bimal Kanti Das, son of P.W 1 Rajendralal Das lived with his parents and other family members at the village Gouripur Chuadang within the police station Chakdah. His father is a practising Homeopathic Doctor. He lives in a Bhagirathi Silpa Asram where his dispensary is also located. In one of the dispensary rooms, Bimal used to sleep and prosecute his studies, being student of Class IX of Purbachal Bidyapith at Chakdah. The appellant Subodh was a fellow student and the other accused persons according to the prosecution were his intimate friends. Of all the accused persons Ashutosh was a close neighbour and he happened to sleep in the same room with Bimal from time to time. - The accused Nitai is an inhabitant of the village Fanstala.

3. The genesis of the trouble according to the prosecution was that P.W. 8 Minu Rani the sister of Bimal was taking fancy of the accused Ashutosh. Taking advantage of his intimacy with Bimal he used to cut jokes with her from time to time. - On this being detected, Bimal took exception to such a conduct on the part of Ashutosh. Bimal also reported the said matter to his parents with the result that his father P.W. 1 Rajendralal Das also asked Ashu not to come to his house.

4. As he was thus taken to task by Bimal and by his father Ashutosh entered into a conspiracy with Subodh and Nitai for removing Bimal from the obstacle put to him in the matter of his love overture to Minu Rani. Then came the fateful day on the 30th January, 1960 corresponding to 16th Magh 1366 B. S. In the afternoon of this day Bimal and his brother (P.W. 7 Nirmal Kumar Das) were in their house. At that time Subodh went there and called Bimal with a request to accompany him. At that time his brother Nirmal supplied him with a lungi and a shirt and a ganji. Thereafter, Subodh placed him on the rod of the bicycle and went away towards the village Sahispur. Bimal did not return thereafter and his whereabouts could not be traced. He was however seen by different persons that afternoon on Sahispur sugarcane Farm at the village Bistupur and near the Chuadanga Bazar in the evening of the 16th Magh 1966 B.S. When the parents found that Bimal was absenting himself from the house they became very anxious. On the following day the inmates of the house searched for him but without any result. What happened next was that on the 31st January 1960 P.W. 1 Rajendra came in the evening to the tea-stall of P.W. 15, Gopinath in the Chuadanga, Bazar and he made a statement to the effect as to the missing of his son in presence of various witnesses. No trace of Bimal could also be found on the 31st January 1960. In evening of this day he again went to the tea stall of P.W. 15 in the said Bazar where the other witnesses who were present on the previous day were also present. When P.W. 1 was frantically enquiring about his son, Nermal Chandra Biswas, P.W. 18; and Sudhir Kumar Karmakar (P.W. 17) were going towards the bazar to see the image on goddess Saraswati (this being the Saraswati Puja day). They overheard that some discussions about the missing boy was going on and voluntarily came inside the tea-stall and made a statement to the effect that they saw and found