JUDGMENT

G.T. Nanavati, J.-The two appellants in this appeal were convicted by the trial Court along with accused Bishwanath Singh for committing the offence punishable under Section 302 read with Section 34 IPC. In the appeal filed by them the High Court altered their conviction from under Section 302 read with Section 34 IPC to one under Section 326 read with Section 34 IPC. Both the appellants were sentenced to suffer rigorous imprisonment for 7 years and accused Bishwanath Singh was awarded rigorous imprisonment for 3 years. All the three convicted accused applied to this Court for special leave to file an appeal. Leave was granted to all of them. Bishwanath Singh s appeal being Criminal Appeal No. 356/88 came up for hearing earlier and it was dismissed by this Court on January 18, 1995. The appeal of the present two accused as unfortunately not listed for hearing along with that appeal and therefore it is now heard by us separately.

2. At the outset, the learned counsel for the appellants stated that appellant Bhagwan Singh has died and therefore his appeal has abated. Therefore the appeal filed by Raj Nath Singh alone now survives.

3. Both the courts below have held that Raj Nat