HARJIT SINGH BEDI, J.

( 1 ) FOUR persons - Gopal Sah, Dasrath Sah, Bhushan Sah and Raghunath Sah were tried by the Additional sessions Judge, Saharsa for offences punishable under sections 302/34, 304/34,201/34 and 120b of the indian Penal Code. The trial court in its judgment dated 14th September 1985 held the first three accused guilty of the offence under Section 302/34 of the IPC and sentenced them to undergo imprisonment for life whereas Raghunath Sah was acquitted. Two appeals were thereafter filed by the convicted accused before the patna High Court whereas the complainant also filed a revision against the acquittal of Raghunath Sah. During the pendency of the appeal in the High Court, Dasrath sah died. The High Court, however, upheld the trial court judgment with respect to the three accused. Gopal sah accused then filed the present criminal appeal challenging his conviction and the matter has been put up for final hearing before us. Bhushan Sah subsequently filed a special leave petition in this Court as well, but it is the admitted position that this matter has been dismissed by this Court on the ground of limitation as well as having no merit.

( 2 ) THE prosecution story is as under:

( 3 ) GOPAL Prasad Gupta deceased aged about 18 years went out of his house at about 6 p. m. on 7th June 1982 and when he did not return till dinner time, his family members went in search for him but he could not be found. The search continued the next morning as well though without success. At about 2 p. m. on 8th June 1982 Murtaza Khan PW22 informed the family that gopal Prasad Gupta's dead body was lying in a ditch near village Chhekabadh on which PW20 Jagdish Prasad gupta, the uncle of the deceased lodged a FIR at about 2. 30 p. m. stating, inter-alia, that at about 6 p. m. on the 7th of June 1982 the deceased had been seen with raghunath Sah and his son Bhushan Sah near the wooden bridge. During the course of the investigation, the accused were arrested and on their disclosure statements, a blood stained axe and a sickle allegedly used in the murder on 8th of September 1982 were recovered from a water filled pond. The police also conducted a raid at the houses of the four accused and a blood stained ganji, a spade and a bucket were recovered from the house of Bhushan Sah and raghunth Sah. The statement of Dasrath Sah was also recorded under Section 164 of the Cr. P. C. by Judicial magistrate, B. K. Singh PW11. On the completion of the investigation, the accused were charged as already indicated above.

( 4 ) THE prosecution examined 29 witnesses in all to support the circumstances appearing against the accused, as admittedly there was no eye witness to the murder. PW1 Nageshwari Devi, the mother of the deceased deposed that on the relevant day her son had been taken away by Bhushan Sah for a walk and he had thereafter not returned. PW3 Shivnath Sahu stated that he had seen Gopal Sah, the present appellant, in the orchard of Jai Narayan Sah carrying a sickle in his hand on the date of incident. PW4 Sofil Khan and PW6 digamber Mandal testified that they had seen raghunath Sah carrying a spade and a bucket in his hand moving away hurriedly whereas PW5 Md. Nadaf stated further that he had seen the three accused (Gopal sah, Dasrath Sah and Bhushan Sah) moving away in a disturbed state of mind. PW8 Kameshwar Choudhary too corroborated this statement and further added that he had seen the deceased along with Bhushan Sah and dasrath Sah near the wooden bridge and a third person whom he could not identify, was urinating close by. He stated that man was not Gobind Gupta, a cousin of the deceased, who too, at one time, was suspected of the murder. PW17 Lakhan Sah further stated that he had seen Gopal Parsad Gupta sitting near the bridge at about sun set with Bhushan Sah and Dasrath Sah accused. The recoveries of the axe, sickle and other articles were sought to be proved by the evidence of PW9 satyadeo Singh and PW12 Mohd. Arif. The prosecutio