Ashutosh Kumar, J.—We have heard Mr.Udit Naryan Singh for the appellant and Mr. Ajay Mishra for the State.

2. The sole appellant stands convicted under Section 302 of the IPC and has been sentenced to undergo R.I. for the remainder of his life and a fine of Rs.50,000/-. The fine so realized from the appellant has been directed to be paid to Soni Khatoon, the widow of one of the deceased (Faiyaz) and in her absence, to her legal heirs vide judgment of conviction and order of sentence dated 03.02.2017 and 10.02.2017, respectively, passed in Sessions Trial No.482 of 2011 arising out of Majhaulia P.S. Case No.327 of 2010 by the learned 5th Addl. Sessions Judge, West Champaran.

3. The case of the prosecution is that after a discussion in the family in front of the Panches for partition of property, a dispute arose between three brothers, one being the appellant and the two others being the deceased, with respect to apportionment of family property. When the suggestion of the appellant that a land contiguous to the house owned by the brothers which stood in the name of Faiyaz, one of the deceased, be given to him was denied by the two other brothers, the appellant got enraged and attacked Faiyaz with a knife and when the other brother, namely, Neyaz came to the rescue of Faiyaz, he too was assaulted by knife. This led to the death of both the brothers (Faiyaz and Neyaz). The weapon of assault was handed over to the appellant by his wife / Mahe Ara, who has not been put to trial. After the occurrence, the appellant is said to have fled away with the weapon of assault. On the cries raised by the wife of Faiyaz / Soni Khatoon / P.W. 5, many persons of the neighbourhood arrived and attempted to take both the injured brothers to hospital for treatment; but both of them succumbed to the injuries a little later. Thereafter, their bodies were brought back to the house and police was informed. The father of P.W. 5, on being informed by her about the occurrence, arrived but only after the police had arrived.

4. On the basis of the fardbeyan statement lodged by P.W. 5, Majhaulia P.S. Case No.327 of 2010 dated 04.12.2010 was instituted for investigation for the offence under Sections 302/34 of the Indian Penal Code against the sole appellant.

5. The police, after investigation, submitted charge-sheet, whereupon cognizance was taken and the case was committed to the Courts of sessions for trial.

6. The Trial Court, after having examined eighteen witnesses on behalf of the prosecution and two on behalf of the defence, convicted the appellant and sentenced him to undergo R.I. for life by taking resort to the provisions contained under Section 211(7) read with Sections 236 and 298 of the Code of Criminal Procedure, as noted above.

7. Mr. Udit Narayan Singh, the learned Advocate for the appellant, while assailing the judgment of conviction and order of sentence, submitted that even P.W. 5 is not an eye-witnesses to the actual assault, whereas majority of the prosecution witnesses turned hostile and did not support the prosecution case. He has further submitted that P.Ws. 1, 2 and 7, who have supported the prosecution case along with P.W. 5, are only hearsay witnesses. He has further submitted that there has been an inordinate delay in dispatching the fardbeyan to the nearest Magistrate, which makes the prosecution case highly doubtful. Additionally, it has been argued that there was no reason for subjecting the dead bodies to post-mortem on the next day when the F.I.R. had already been recorded on 04.12.2010 by around 06:30 p.m. The evidence in the case, it has been argued, is absolutely lacking in as much as even the witness on the point of recovery of knife on the pointing of the appellant, which weapon was presumably used in the commission of crime, has not supported such recovery.

8. Apart from this, it has been urged that the tenor of the evidence of P.W. 5 clearly indicates that there was consultation and confabulation before naming the appellant as