ORDER :

S.B. Majmudar, J.

1. Special leave granted.

2. We have heard learned counsel for the parties. Accused 2 and 4 have brought in challenge their conviction and sentence awarded by the trial court under Section 304, Part I read with Section 34 of the Indian Penal Code ("Indian Penal Code" for short) and as confirmed by the High Court in appeal. The incident which resulted in conviction of the appellants by the trial court which sentenced them to suffer rigorous imprisonment for ten years for the said offence which occurred on 10-8-1977 at 5.30 p.m. Prosecution Witness 5, Gopal Sah clearly implicated both these accused in the said offence. It was found by the trial court and as agreed to by the High Court that Accused 2 had given a spear blow to the deceased Gauri Shankar Sah and Accused 4 had given a blow on the head of the deceased with a sharp-cutting instrument, "garasa". In view of the evidence of PW 5 who had clearly implicated these accused and also in view of the corroborating evidence of PW 3 no exception can be taken to the role played by these accused in causing the death of the deceased.

3. However, the question is whether they could not have been convicted under Sectio