( 1 ) THESE are two connected appeals that have arisen out of the same incident. The appellants in both the appeals were convicted at the same trial which was held by the Sessions Judge of moradabad. The appellants have been convicted under Section 302 read with Section 34, Penal code and each one of them has been sentenced to transportation for life.

( 2 ) THE charge against the appellants was that they intentionally caused the death of one durgpalsingh, who was a constable, in furtherance of the common intention of all of them, on the night between the 3rd and 4th of October, 1950, in Mohalla Jagat within the police station of sambhal. A first information report was lodged at police station Sambhal by constable Gulzari lal on the morning of the 4th of October at 7. 15 a. m. According to the time set down in this first information report of the offence, the offence is said to have been committed in the small hours of the morning of the 4th, that is to say, about 1 oclock. The place of occurrence is said to be the playground of the Hind Higher Secondary school of Mohalla Jagat. This play-ground is said to be situate at a distance of about four furlongs towards the east of the police station. The occurrence fell within the police output of panju Sarai of police station Sambhal. It may here be noted that the first information report by Gulzari Lal did not contain an eye-witness account of the incident because Gulzari Lal was not an eye-witness of the Incident but made the report on information which he had gathered. According to the first information report, Durgpalsingh of police circle Panju Sarai was out on night duty at a cinema and that he had not returned home after performing his duties. Anxiety was felt by Amarpalsingh, a relation of Durgpalsingh, and he made enquiries and he learnt as a result of these enquiries that there was some firing soon after the cinema show was over and people were returning to their homes through the school playground, which was apparently a short-cut for people coming to Panju sarai. Certain enquiries were further made and it was discovered that Durgpalsinghs body lay on the play-ground. He had a bullet wound. This revelation prompted action and the first action taken was the making of the first information report at the police station. In this first information report gulzari Lal gave an account of the facts which led to the discovery of Durgpalsinghs body on the play-ground and he also gave an account of how he had gathered up the facts which led to the incident in which Durgpalsingh lost his life. The main group of people from whom enquiry was made were the Malis in whose company apparently Durgpalsingh was returning home when the incident took place. In the first information report this is what is precisely set down in regard to this matter :-

"the Malis said that while they were returning to their houses from the the cinema and reached the school ground we saw some people coming from the other side and that they were flasing their torches, that thereupon Durgpalsingh constable advanced two or three paces and challenged them by saying who is flashing the torch, whereupon they flashed off the torch and the constable flashed on his torch, that on this they advanced towards them and called out all mohalla people get away. We have to deal with this rascal and began to fire. That they all ran away for fear of their lives and that they had seen the persons who had fired in the light of the torch and moon and could recognise them. "

At the end of the first information report Gulzari Lal gave vent to his own suspicion in regard to the assailants by saying this:"it is possible that this may be the work of Achhan and Om Prakash badmashes who have been absconding for a long time and roam about with unlicensed arms with their companions. "

( 3 ) IMMEDIATELY on receipt of the first information report the investigating officer reached the scene of incident. During the course of the investigatio