JUDGMENT

Dalip Singh, J. - Karam Din appellant has been convicted by the learned Additional Sessions Judge under Section 302, I.P.C., and has been sentenced to death. He has also been sentenced to tea years' rigorous imprisonment under Section 302, I.P.C. He has appealed and the reference is also before us.

2. The evidence for the prosecution shows that on the night between the 4th and 5th March 1928, a dacoity was committed in the house of one Karam Chand at Bahadur Khera and Karam Chand was murdered during the commission of that dacoity by means of a gun and a chhavi. Five men were alleged by the prosecution to have taken part in this dacoity, one of whom Sadra is since reported to have died. Pour men were accordingly challaned by the police, namely, Umar Din, Rahmat, Karam Din and Kalu. Kalu was acquitted by the learned Additional Sessions Judge and therefore he held that there was no dacoity and Section 396, I.P.C. did not apply. He held, however, that an offence was committed under Section 392, and that by virtue of Section 34, I.P.C. all the accused concerned were guilty of murdering Karam Chand under Section 302, I.P.C. The evidence against Karam Din, accused is firstly, that