JUDGMENT - VISHNU SAHAI, J. :---Since both these appeals arise out of the same set of facts, we propose disposing them of by a common Judgment.

Vide Judgment and Order dated 12-8-1993, Shri V.C. Singh, Additional Sessions Judge, Greater Bombay, in Sessions Case No. 66 of 1990 and Sessions Case No. 49 of 1991, convicted the appellants of both the appeals on two counts, namely section 387 read with section 34 I.P.C. and 302 read with section 34 I.P.C.; whereas under the first count, he awarded each of the appellants a sentence of five years R.I. and a fine of Rs. 1,000/- in default to further undergo R.I. for 30 days, on the second count, he sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000 in default of payment of fine, to further undergo R.I. for 30 days. The substantive sentences of the appellants were directed to run concurrently. These convictions and sentences have been challenged in the present appeals.

2. The prosecution in brief, as emerging from the recitals contained in the F.I.R., dying declaration of the victim and the evidence of the two eye witnesses namely Abdul Hamid P.W. 1 and Abdul Majid P.W. 2 runs as follows :---

The victim (deceased) Abdul Razak had come to Ajay Transport in S.V.P. Road, Charnal, Dongri, Bombay sometimes between 9 a.m. and 9.30 a.m. on 31-10-1989. Along with him was his nephew Abdul Hamid P.W. 1 and his brother Abdul Majid P.W. 2. It is alleged that they used to manage Ajay Roadways which was a partnership firm dealing in transport business. At about 11.45 a.m. when the victim and P.W. 1 Abdul Hamid were standing on the footpath, in front of Ajay Transport and were talking, the two appellants came from the direction of Charnal. One of them namely Syed Munna told the victim to give Rs. 4,000/- and threatened him that in case he failed to do so, he should be ready to face the consequences. The other appellant Nasir Hussain Shaikh is alleged to have said 'give just now'. On that, the victim replied that since they were from the same Mohalla, why should he pay them the aforesaid amount. He also remonstrated as to why they were threatening him. On that appellant Sayed Munna inflicted a blow, with a knife used for cutting bread, resulting in three fingers of the righthand of the victim being severely injured. The victim's nephew P.W. 1 Abdul Hamid tried to catch Sayed Munna but, the appellant Nasir Hussain Shaikh thwarted his effort by kicking him on the back. Thereafter, both the appellants are said to have run away towards Charnal. It is alleged that some people who were passing by caught hold of Nasir Hussain near Charnal Island. They brought appellant Nasir Hussain near the Transport office. In the meantime, a police wireless van from Dongri police station came there. The appellant Nasir Hussain was handed over to the police. Blood was oozing out from Nasir Hussain's nose as a result of the injuries caused to him by persons in trying to arrest him. Thereafter, Abdul Hamid P.W. 1 took the victim to J.J. Hospital on a motor cycle and at the aforesaid Hospital, the victim was given first aid treatment and thereafter, was sent to Bombay Hospital.

3. The F.I.R. was lodged by P.W. 1 Abdul Hamid at 1.30 p.m. on 31-10-1989, at police station Dongri and in the aforesaid F.I.R., both the appellants are named.

4. Dr. Pravin Bagul, P.W. 7 of J.J. Hospital medically examined the victim and found three of his fingers cut. At the aforesaid hospital, injuries of appellant Nasir Hussain Shaikh were also medically examined.

5. The investigation of the case was conducted by SHO Shivaji Wagh P.W. 6 who at the time of the incident, was attached to police station Dongri. On the basis of the F.I.R., lodged by Abdul Hamid P.W. 1, Shivaji Wagh, P.W. 6 registered C.R. No. 392/89 under section 386, 325, 34 I.P.C. against the appellants. The same day, he went to the place of the incident and between 2.30 p.m. and 3.30 p.m. prepared the spot panchanama. That very day he also went to the Bombay Ho

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