( 1 ) THIS is an appeal preferred by the appellant accused against the judgement and findings dated on 20-9-80, recorded by Shri K. K. Joshi, Sessions Judge, Datia, in Sessions Trial No. 11/80. The appellant has been convicted under Section 302 of the I. P. C. and sentenced to undergo life imprisonment.

( 2 ) THE appellant, along with two others (Prabhu and Gopi) was jointly charged and tried for an offence of murder of Surjan, during the intervening night of 21st and 22nd September, 79. It is alleged that Surjan sustained a gun shot injury on his stomach and died next day, on 23-9-79, while on way to Indargarh Hospital.

( 3 ) THE prosecution case, in brief, is that during the intervening night of 21st and 22nd September, 79, deceased Surjan, Amarsingh, Prabhu and Gopi planned to commit theft/robbery in the house of Damru (P. W. 7), situated in village Kaseru ka pura. It is said that Tussibai w/o Damru got up and she raised alarm. Damru also awakened and saw only one miscreant from the roof. He, then threw Gummas (pieces of bricks towards him and he contends that one Gumma might have hit the miscreant. On hearing the cry other villagers also got up and came out of th