JUDGMENT

G. N. RAY, J.:—These appeals arise out of a Judgment dated November 18, 1980 of the, High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.222 of 1977 (Prakash v. State of Madhya Pradesh) and Criminal Appeal No. 714 of 1976 (State of Madhya Pradesh v. Shibboo alias Shiv Narayan and two others). Criminal Appeal No. 222 of 1977 was preferred by the accused Prakash in the High Court of - Madhya Pradesh at Jabalpur against his conviction under S. 302, I.P.C. and sentence of life imprisonment in Sessions Trial No. 61/1974 in the Court of the First Additional Sessions Judge, Sagar. Criminal Appeal No. 714 of 1976 was preferred by the State of Madhya Pradesh against the accused Shiv Narayan and the other two accused Vishnu Prasad and Raju alias Raja Ram against the order of acquittal passed by the learned Additional Sessions Judge, Sagar in Sessions Trial 61 of 1974. It may be mentioned here that all the four accused persons were committed to sessions trial for the murder of one Vijay Singh on 14th February, 1974 but as accused Prakash became ill and could not be tried for long, the other three accused were tried and the aforesaid order of acquittal was passed by the Additional Sessions Judge, Sagar. The accused Prakash was later on tried and he was convicted under S. 302, I.P.C. and sentenced to life imprisonment for the murder of the said Vijay Singh. The Division Bench of the High Court of Madhya Pradesh at Jabalpur allowed the Criminal Appeal No. 714 of 1976 preferred by the State of Madhya Pradesh against the order of acquittal in part inasmuch as the acquittal of Shiv Narayan was set aside and he was convicted under S. 326 read with S. 34 of the I.P.C. and sentenced for imprisonment for the period already undergone in the jail. The acquittal of the other two accused namely Vishnu Prasad and Raju were affirmed and the appeal of the State against acquittal to that extent was disallowed. The appeal preferred by Prakash against his conviction under S. 302 and sentence of life imprisonment was however dismissed and the order of conviction and sentence passed by the learned Additional Sessions Judge was affirmed by the High Court.

2. Against the aforesaid judgment of the Madhya Pradesh High Court convicting Prakash and Shiv Narayan, the said accused persons moved petitions for special leave to appeal giving rise to the present appeals viz. Criminal Appeals Nos. 7 and 8 of 1981.

3. On 14th February, 1974 one Vijay Singh Chauhan was murdered at about 2.45 p. m. at the Bada of Mangal Singh in the town of Sagar. The prosecution case was that Vijay Singh had love affair with the daughter of Shiv Narayan, namely Kumari Geeta who was a student in the Girls School in the town. Such love affair was not liked by Shiv Narayan, his brother Prakash Pathak and other members of the family. On the date of occurrence Vijay Singh had been to the school of Kumari Geeta and Kumari Geeta left the school and went with Vijay Singh to different places. Thereafter Vijay returned to the garage of Shiv Narayan where one Sri Vijay Kumar, the brother-in-law of one Sri S. K. Singh had come to the garage of Shiv Narayan for the purpose of finding out the residence of S. K. Singh. Vijay Singh and his younger brother Ajay Singh were asked by Shiv Narayan to accompany Vijay Kumar for the purpose of showing him the house of S. K. Singh. When they reached near about the Khara Well turning from the three way (Tigda) of Prem Narayan Tiwari, accused Raju came from behind and putting his hand on the shoulder of the deceased Vijay Singh asked him to come to discuss some matter. The deceased Vijay Singh told Vijay Kumar to wait for sometime and he along with his brother Ajay Singh went towards Prem Narayan Tigda. At that place the. Accused Shiv Narayan Pathak and the co-accused Prakash as also Vishnu appeared. Vijay Singh on seeing these people attempted to enter the house of Mangal Singh and went towards the back side. He tried to cross the barbed wire fenci