P.K.GOSWAMI, J.-

(1) THIS appeal by special leave is directed against the judgment of the Delhi High court confirming the conviction of the appellant under S. 302/34, Indian Penal Code, and sentence of imprisonment for life.

(2) ASHOK Kumar aged about 17 years and his younger brother, Vijay Kumar, below the age of 16 years were chargesheeted for an offence under S. 302/34 Indian Penal Code for causing the death of Rajinder Kumar aged about 23 years. Vijay Kumar was sent for trial under the Children Act, 1960, and is not, therefore, before us.

(3) IN June, 1971, Jai Bhagwan, father of the accused, had complained to the police against the deceased, Rajinder Kumar, alleging that he had kidnapped his daughter, Saroj Kumari. It is said that Saroj Kumari was recovered from the company of Rajinder Kumar at Ahmedabad and Rajinder Kumar was charged for offences under S. 366 and 376, Indian Penal Code. and the case was pending on the date of occurrence.

(4) THE prosecution case is that on 22/05/1973, Hukam Chand (Public Witness 1), father of the deceased, Rajinder Kumar, was coming back from the Fountain in Chandni Chowk on H. C. Road and took: a turn towards right leading to Mor Sarai when he saw the accused, Ashok Kumar, and his brother, Vijay Kumar, having surrounded his son Rajinder Kumar. He also saw that Ashok Kumar caught hold of the hand of Rajinder Kumar while his younger brother stood behind him in front of the gate of Mor Sarai. Having seen this he walked quickly and when he was at a distance of four or five paces from them he heard Ashok Kumar and his brother, Vijay Kumar, telling Rajinder Kumar that they would avenge the kidnapping of their sister no matter whether the court might punish him or not. Hukam Chand then saw both the brothers taking out their knives. Accused Ashok Kumar struck a blow on the left cheek of Rajinder Kumar. Vijay Kumar struck one blow on Rajinder Kumar which was warded off by him as a result of which his right forearm was struck by the knife on the back of his palm. Rajinder Kumar tried to run away but was pursued by the two brothers and was overpowered. They then gave several blows on the back of his waist, on left abdomen and on the right thigh. As a result of these blows Rajinder Kumar fell down on the footpath on the side of the quarters of Mor Sarai. Accused Ashok Kumar ran away towards the station along with his brother. Hukam Chand sent for a taxi and took Rajinder Kumar in it to the Irwin Hospital where he was examined by Dr. U. Kaul (Public Witness 12) who found the following injuries on his person:

1. Stab wound 4"x2" left inter scapular region with surrounding surgical emphysema.

2. Stab left lumber region 2" x 2".

3. Stab left thigh 2" x 1".

4. Stab left cheek 2" x 2"

5. Stab left hand 4"x l" on the dorsum.

Constable, Vijay Kumar, (Public Witness 7) who was on duty at the Irwin Hospital informed the Police Station, Kotwali, about the admission of Rajinder Kumar in the Hospital. Constable, Ram Saran (Public Witness 14) made an entry in the daily diary about the report received from the lrwin Hospital. He sent a copy of this report to S.I. Diwan Singh (Public Witness 20) who proceeded to the Hospital. When Public Witness 20 arrived Rajinder Kumar was not in a position to make a statement and be recorded the statement of Hukam Chand (Ex. Public Witness 1/A) at about 8.40 p.m. which is the first information report registered under S. 307/34 Indian Penal Code According to the Doctor the punctured injury at the left inter scapular region was sufficient to cause his death in the ordinary cause of nature. On the death of Rajinder Kumar at 11.35 p.m., the same night, the S. under which the case was registered was altered to S. 3021. P. C. and investigation proceeded accordingly. Names of Ashok Kumar and Vijay Kumar appeared in the first information report, as the assailants. The first information report also disclosed that there was anoth