MUKUNDAKAM SHARMA, J.

( 1 ) THIS appeal is filed by the two accused who have been convicted by the division Bench of the Allahabad High Court under Section 302 read with section 34 of the Indian Penal Code (for short `ipc') and sentenced to undergo imprisonment for life.

( 2 ) ORIGINALLY, there were three accused persons, namely, Virendra @ Buddhu, ram Asrey @ Tami and Girish Chandra @ Gappu and they were charged under Section 302 read with Section 34 IPC and Girish Chandra was also charged under Section 307 IPC. The Trial Court after recording evidence and hearing arguments acquitted all the accused persons of the charges leveled against them under Section 302 read with Section 34 IPC and Girish chandra from the charges leveled against him under Section 307 IPC. Being aggrieved by the order of acquittal passed by the Trial Court an appeal was filed by the State of U. P. before the Allahabad High Court. The said appeal was allowed in part to the extent that acquittal of the accused -appellant in the present appeal was set aside and they were sentenced to undergo imprisonment for life under Section 302 read with Section 34 IPC, while the acquittal of third accused, namely, Girish Chandra was affirmed by the same judgment and order of the High Court of Allahabad. Being aggrieved by the said order of the High Court the present appeal was filed by the accused persons, in which notice was issued and an order was also passed rejecting the prayer for bail but with direction for expeditious disposal of the appeal. Pursuant to the said order, the present appeal was listed before us for hearing and disposal and we heard the learned counsel appearing for the parties. In this appeal, learned counsel appearing for the parties have taken us through the entire evidence on record in support of their contentions before us.

( 3 ) BEFORE analyzing the submissions made before us by the counsel appearing for the parties, it will be necessary to set out the factual position leading to the filing of the present appeal by both these accused persons. On 05. 10. 1979 at about 4. 45 p. m. Smt. Sarla Devi, wife of Rameshwar dayal (hereinafter referred to as `deceased') lodged a First Information Report at police station Shamshabad, District Farrukhabad alleging that Pyarey Lal who happened to be her grand father in relation had executed a sale deed of his landed property in favour of her son Pradeep Kumar but subsequently Het Ram and Sahdev got a deed of will regarding the same property allegedly executed by their maternal uncle Pyarey Lal in their favour. Therefore, in respect of the same piece of land, litigation was going on between her deceased husband on one hand and Het Ram and Sahdev on the other hand. Three months prior to the occurrence Sahdev was murdered and in connection with the said murder her son Pradeep Kumar, brothers Jaidev and Rakesh were falsely roped in as accused and Pradeep was still in jail at the time of murder of his deceased father. It was also alleged that proceedings under Section 107 and 117 of the code of Criminal Procedure, 1973 (for short `cr. P. C) were also going on between the deceased on one hand and Het Ram on the other hand. It was further alleged that Het Ram and his son Virendra @ Buddhu were nursing grudge against the deceased. On the fateful day i. e. on 05. 10. 1979, early morning the deceased, the complainant Sarla Devi, P. W. 1 and their daughter km. Guddi, P. W. 2 had gone for taking a holy dip into the river Ganges on the pious occasion of "poornamashi". Thereafter, at about 10. 00 a. m. while they were returning back after seeing Patavar in their field through the field of raghubar Dayal and reached near mango tree standing in that field, Virendra alias Buddhu along with his cousins Ram Asrey alias Tami and Girish Chandra alias Gappu armed with country made pistols emerged from Patavar standing at the medh of Chhavinath and rushed towards the deceased. Ram Asrey was shouting that the deceased should be cau