TARUN CHATTERJEE, J.

( 1 ) THIS appeal arises from the judgment and order dated 4th of November, 1999 of the High Court of Judicature at allahabad whereby the High Court had partly allowed the appeal of the accused/appellants herein thereby setting aside their conviction and sentence of imprisonment for life under section 302/34 of the Indian Penal Code (for short "the IPC") imposed by the VIIIth Additional Sessions Judge, Bareilly, U. P. and instead convicting and sentencing them to 7 years rigorous imprisonment under Section 304 Part II read with Section 34 of the IPC. The accused/appellants (for short "the appellants")before us are Mahabir, Najjoo, Dharam Pal and Sheru whose fluctuating fortunes shall be set at rest by us in this appeal.

( 2 ) IN order to appreciate the controversy involved, we propose to give a brief narrative of the prosecution case relevant for our consideration.

( 3 ) THE incident took place on 5th of June, 1978 in Village khalanpur where the deceased Rajpal had come to see a fair. At about 2 p. m. , he went to drink water at a hand pipe towards the north of Ram Das Teli's House. An altercation took place between Mahabir and Rajpal deceased on drinking of water. There was an exchange of abuses between Dharam Pal and rajpal. Thereafter, Rajpal left the place and proceeded towards the southern side. Meanwhile, all the four accused came there and assaulted Rajpal with lathis who sustained head injuries and fell down. The accused thereafter fled from the spot. Raghu, father of Rajpal arrived there shortly and took him to Faridpur police Station on a bullock cart where Rajpal himself dictated a report of occurrence. The report was registered under Section 323 of the IPC against the four accused as a non cognizable report at 21. 10 hours on 5th of June, 1978. Rajpal was medically examined at the Primary Health Center, Faridpur at 10. 00 p. m. on the same night. He, however, succumbed to his injuries at about 1. 00 p. m. on 7th of June, 1978.

( 4 ) AFTER Rajpal died, information was sent to the police station and the case was converted into one under section 304 of the IPC. Thereafter, the case was investigated by Sub-Inspector P. C. Sharma, who submitted the charge sheet against the appellants on 28th of October, 1978. The learned Magistrate took cognizance of the offence and committed the case to the court of Sessions. The Sessions Judge framed charge under section 302/34 of the IPC against all the appellants who pleaded not guilty and claimed to be tried. Nine witnesses including three eye-witnesses were examined from the side of the prosecution. Two witnesses were examined by the appellants in their defence. In their statement under Section 313 of the Code of Criminal Procedure (for short "the code"), the appellants denied the prosecution case and alleged false implication on account of enmity. The Sessions Judge, as noted hereinabove, believed the case of the prosecution and convicted the appellants and sentenced them to imprisonment for life under Section 302/34 of the IPC. Against this decision of the sessions Judge, an appeal was preferred before the Allahabad high Court by the appellants. It may be kept on record that when the appeal was taken up for hearing before the High court, the learned counsel for the appellants made a statement that despite repeated letters, the appellants were not responding and therefore he was not in a position to argue the appeal. The high Court, thereafter, scrutinized the entire record with the assistance of Learned Assistant Government Advocate. As noted hereinabove, the appeal was partly allowed and the appellants were convicted and sentenced to rigorous imprisonment of 7 years under Section 304 Part II read with section 34 of the IPC. It is this judgment of the High Court which is impugned in this appeal.

( 5 ) WE have heard the learned counsel for the parties and examined the entire materials on record. We shall now deal with each of the questions raised before