IMPORTANT POINT
When only two knife blows were given, one of which fell on chest of deceased in a sudden fight, conviction was liable to be recorded under Section 304 Part I, IPC instead under Section 302 IPC.

ORDER

By the judgment and order dated 16th September, 1992 Additional Sessions Judge, Siwan in Sessions Trial No. 267 of 1991 convicted Krishna Tiwari (accused No. 1) for offence punishable under Sections 302/109 read with Section 111 of the Indian Penal Code (for short the IPC ) and Dadan Tiwari (accused No. 2) for the offence punishable under Section 302 of the IPC for causing murder of Paramhans Tiwari and sentenced both the appellants to undergo imprisonment for life for the aforementioned offences. Dadan Tiwari was also found guilty and convicted for the offence punishable under Section 307 IPC for attempting to commit the murder of Anil Tiwari, son of deceased Paramhans Tiwari and was sentenced to suffer rigorous imprisonment for five years. The sentences were to run concurrently. Against the said judgment the appellants preferred Criminal Appeal Nos. 366 and 395 of 1992 before the High Court of Patna. By judgment and order dated 23rd September, 1994 the High Court maintained the conviction of the appellants under Section 302/109 read with Section 111 and under Section 302 IPC respectively. However, the conviction of Dadan Tiwari (A2) under Section 307 IPC causing injury to Anil Tiwari was modified and he was convicted under Section 324 for causing simple hurt. That order is under challenge by filing these appeals. By the order dated 28.8.1995 this Court granted leave to appeal by limiting only to question of nature of offence and the sentence.

2. It is the prosecution case that appellant No. 1 (Krishna Tiwari) is the father of appellant No. 2 (Dadan Tiwari). Krishna Tiwari and his son were staying on the first floor and (deceased) Paramhans Tiwari, brother of appellant No. 1 was staying along with his sons and others on the ground floor. On 6th March, 1991 at about 9.00 p.m. Anil Tiwari lodged the FIR at Police Station Siwan, District Siwan wherein it was stated that an incident took place at about 7.00 p.m. when Dadan Tiwari brought back his jeep to his house with Manoj Kumar (cleaner of the jeep). The jeep was parked near the door and Dadan Tiwari went into the courtyard. Manoj Kumar was standing at the main entrance of the door of the house. As there was obstruction in going and coming in the house, the deceased Paramhans Tiwari told Manoj to go away from the door but he did not do so and, therefore, he removed him from the door by catching his arms. Because of this incident Manoj became angry, went inside the house and informed about the incident to Dadan Tiwari and Krishna Tiwari. Both Krishna Tiwari and Dadan Tiwari became angry and came down from the first floor. It is stated that Krishna Tiwari caught the collar of the shirt of Paramhans Tiwari and the maro sale ko . Upon this Dadan Tiwari, who had come with a knife gave two knife blows to the deceased, one fell on the chest and the other landed on upper part of the eye-brow. Due to this deceased fell down. Anil Tiwari ran to save him but Dadan Tiwari gave one knife blow on his person. During that time his elder brother and others came there and saw the occurrence. As there was profuse bleeding from the wounds, the deceased became unconscious and was taken to the hospital but he died on the way. After completing the investigation the accused were charge-sheeted, tried and convicted as stated above.

3. At the time of hearing of these appeals learned senior Counsel for the appellants submitted that taking the evidence as it is, the conviction of the appellants under Sections 302 or 302 read with Sections 109 or 111 IPC cannot be sustained and for this purpose he has taken us through the entire evidence.

4. In our view, there is much substance in the contentions raised by the learned senior counsel for the appellants. From the evidence on record it is apparent that the incident took place all of a sudden. It has been admitted by the prosecution witnesses that prior to the incident relations between the brothers were cordial. It has been specifically stated by infor