JUDGMENT

AHMADI, J. :— Seven members of Shambhudatta Mishras family were tried for the murders of Kashinath and Sadanand which occurred in their flat No. 7 of Chhaya Building, 15th Road, Khar, Bombay-52 on January 6, 1975 between 7-30 and 8 p.m. This flat No. 7 situate on the first floor of the building comprised of a hall, one bed room and a kitchen. The entrance to the flat was from the northern door opening in the hall 14 ft. x 10 ft: in size. To the south of that hall was balcony of 14 ft. x 2 ft. which was virtually an extension of the hall. When the police reached the scene of occurrence they found two bodies, one of Kashinath and the other of Sadanand, lying in the hall; Kashinath was dead while Sadanand was unconscious. Sadanand died in the hospital sometime later. The seven members of the family of Shambhudatta Mishra were tried for their murders. The Additional Sessions Judge convicted six of them under S. 302/34, I.P.C. and sentenced them to imprisonment for life and a fine of Rs. 500, in default rigorous imprisonment for six months. Accused No. 7 Shand w/o Kishore Mishra was, however, acquitted of all the charges levelled against her. Accused Nos. 1 to 6 feeling aggrieved by the said order of conviction preferred an appeal to the High Court. The High Court came to the conclusion that the order of conviction and sentence passed against the three brother Prakash (Accused No. 1), Kishor (Accused No. 2) and Ashok (Accused No. 3) was unassailable. Their appeal was therefore dismissed. So far as the Subbadra (Accused No. 5) is concerned, the High Court took the view that at the relevant time she had left the flat and therefore she could not be held guilty of the charge levelled against her. Her appeal was therefore allowed and she was acquitted. The appeals of Jasodra (Accused No. 4) and Janki (Accused No. 6) were partly allowed in that their convictions under Section 302/34 were set aside and instead they were convicted under S. 304 (Part II)/34, I.P.C. Accused No. 4 was directed to suffer rigorous imprisonment for four years. Having regard to her age and the period of imprisonment already undergone, accused No. 6 was awarded a sentence of the period already undergone. Against this order of conviction and sentence passed by the High Court, the accused persons have preferred the present two appeals by special leave. As both the appeals relate to the same incident, we proceed to dispose them of by this common judgment.

2. Flat No. 7 in Chhaya Building belonged Shambhudatta Mishra, who was out of Bombay on the date of the incident. His two wives Jasodra and Subhadra, both sisters, were in the flat along with accused Nos. 2 and 3, both sons through Subhadra. So far as the presence of accused No. 1, another son through Jasodra, is concerned the prosecution case is that he was present in the flat while the accused contends that. he was then living in his own flat No. 16, Basant Bahar at Juhu Tara Road, Bombay. Besides the aforesaid family members there were four infants living in the flat at the time of the occurrence.

3. The prosecution case was that the deceased Kashinath had won a Matka bet and was entitled to the bet money which accused No. 1 avoided to pay. On January 6, 1975, at about 7 p.m. Kashinath, his friend Sadanand and PW 3 Laxman went to accused No. 1 at his table on. 15th Road near Chhaya Building to recover the dues. Accused No. 1 asked Kashinath to accompany him to his flat in Chhaya Building to receive the amount. All the four persons. went to flat No. 7. Kashinath and Sadanand entered the flat along with accused No. 1 but PW 3 stayed back. As soon, as Kashinath and Sadanand entered the flat a woman threw chilli power in the eyes of Kashinath. Due to smarting of the eyes Kashinath sat down. He was immediately assaulted. PW 3 objected to the assault but Accused No. 1 threatened him whereupon he ran away. Thereafter, the door of the flat was closed. After sometime those outside heard sounds of quarrel and shouts