Madhavendra Saran, J.

1. Cr. Appeal No. 118 of 2004 has been preferred against the judgment and order dated 5.2.2004 passed by Shri Anand Deo Sharma, Additional Sessions Judge, F.T.C.V., Nawada in S. Tr. No. 94 of 2003/48 of 1992 whereby and whereunder he convicted the appellants under sec. 304 Part II read with 34 of the Indian Penal Code (in short as the Penal Code) and sentenced each of them to undergo rigorous imprisonment for ten years. It appears that though the appellants were also convicted under section 307/34 of the Penal Code but no separate sentence was awarded to them.

2. Cr. Revision No. 264/04 has been preferred by the petitioner Mumtaz Ahmad @ Mumtaz for enhancement of sentence awarded to opposite party nos. 2 to 4 i.e. the appellants.

3. This revision has been heard alongwith Cr. Appeal No. 118/04 and this judgment and order shall govern both of them.

4. Prosecution case, in short, is that on 31.10.1991 at about 9.00 AM informants son Md. Ishtehaque @ Nanhu was ploughing his land situated in Pandit Khandha and informant Md. Mumtaz was working in the field. In the meantime, his Gotias Moin Uddin armed with lathi alongwith two sons named Md. Mogis Uddin @ Pappu and Moiez Uddin @ Feku armed with lathi and dagger arrived there and asked them not to plough the land upon which the informants son replied that the land belonged to him. It is said that Moin Uddin and Mogis Uddin @ Pappu knocked him down on the ground and went on pressing his hands and feet. Moin Uddin asked his son Moiz Uddin @ Feku to kill him with dagger upon which Moiz Uddin @ Feku stabbed his son on his back as a result of which he fell down and became senseless. The informant went to save his son but Moin Uddin and Mogis Uddin who were holding lathi in their hands, assulted him as a result of which he sustained injury on his left hand and feet. Moiz Uddin @ Feku who was holding a dagger in his hand with a view to commit his murder, inflicted dagger injury on the left side of his head as a result of which he became injured and blood started oozing. Informants son Md. Imtiaj and other witnesses named Md. Akil, Md. Salimuddin and others witnessed the occurrence. The informant brought his son Md. Istehaque @ Nanhu to Pakaribarma Hospital for treatment but the medical officer referred him to Nawada Sadar Hospital for better treatment. It is said that Md. Istehaque died on way to Nawada Hospital. The fardbeyan of the informant was recorded at 16.15 hours in. Sadar Hospital, Nawada by the police on the basis of which Pakaribarma P.S. Case No. 75/91 dated 1.11.1991 was registered. The police after investigation submitted charge-sheet. The learned Chief Judicial Magistrate, by order dated 24.2.1992 took cognizance and later on committed the case to the court of session. After trial all the three appellants were convicted and sentenced to imprisonment as mentioned above. Against the said conviction and sentence, the appellants have preferred the present appeal before this Court.

5. The defence of the appellants was total denial of the alleged occurrence and false implication in this case due to land dispute.

6. To substantiate the charges the prosecution examined six witnesses who are P.W. 1 Md. Asgar Hussain, P.W. 2 Md. Kalim, P.W. 3 Md. Imtiaj, P.W. 4 Md. Akil, P.W. 5 Mumtaz Ahmad (informant) and P.W. 6 Muktinath Singh. It appears that P.W. 1 simply identified his signature as Exhibit-1 on the inquest report. P.W. 2 turned hostile and did not support the prosecution case.

7. P.W. 6 Dr. Muktinath Singh on 31.10.1991 was posted as Civil Assistant Surgeon at Sadar Hospital, Nawada. On the same day at about 4.45 PM he held post mortem examination on the dead body of Md. Imteyaz and found the following: External Examination:

8. Rigor mortis was present in lower limb only. One stab injury ante mortem in nature was located on the right side of back with incised margins of size 1/2" x 1/2" x 6" below the lower border of scapula. On dissection he found tha