( 1 ). The appellants/accused have filed this criminal appeal challenging the judgment and order of conviction and sentence passed against them under Section 302 read with Section 34 Indian Penal Code by the Bombay High court bench at Aurangabad on 5/9/1990, The first appellant is the husband of the third appellant and the second appellant is their son. The prosecution case in brief is as under:appa (since deceased) was the brother of A-1 and Chandrakant. In a partition between these three brothers by metes and bounds each one was cultivating the land fallen to his share. Their lands are situated at Village Khudawadi, Taluka Tuljapur in District Osmanabad. There was, however a dispute between Appa and A-1 in respect of the location of foot-track. On 25/9/1987 at about 5. 00 p. m. , Appa was working in this field whereas his daughter, Sarubai (Public witness 2 was grazing the cattle nearabout the place of incident. The appellants were also doing their agricultural work in their own land. According to the prosecution the appellants came to the land of Appa and started assaulting him with axes and sickle. Sarubai (Public witness 2 seeing the assault caused by appellants came near the