JUDGMENT

Rajendra Babu, J.-This appeal arises out of the order made by the Allahabad High Court affirming the conviction of Uday Singh, the appellant and another, Gainda Singh, who has since deceased, under Section 302 read with Section 34 IPC and sentencing them to imprisonment for life.

2. The prosecution set out its case as follows : that Gainda Singh and the appellant are brothers and both of them are cousins of Shishupal Singh, who died in a fight between Gainda Singh and the appellant on the one hand and Shishupal Singh and others on the other; that the cause of the fight is that while Kanhai Singh, Shishupal Singh and Satyapal Singh started digging on 29.1.1977 at 9 A.M. for laying foundation in the portion that had fallen to their share in a partition of the Chaupal that had taken place before the village panchayat on 23.1.1977, the appellant along with Gainda Singh obstructed the digging; after that there was heated exchange of words, which led to fist fight; it is stated that Babu Singh, one of the accused, slapped Shishupal Singh and Gainda Singh threw a brick towards Kanhai Singh, which hit him. Shishupal Singh and Satyapal Singh came forward to save Kanhai Singh. The app