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