Navin Sinha, Actg. C.J.

1. The appeals arise from judgment of conviction dated 1.4.1999 by the 3rd Additional Sessions Judge, Durg in Sessions Trial No. 63/1998. Appellant Gajanan and Moti have been convicted under Sections 302/34 IPC to life imprisonment with fine of Rs. 500/- and in the event of failure to pay fine they were required to undergo three months each further imprisonment. The two have been further convicted under Sections 307/34 IPC to seven years rigorous imprisonment each along with fine of Rs. 500/- each, and in the event of failure to pay the fine they were to undergo three months further imprisonment Appellant Alekho @ Budu has been convicted under Section 323/34 IPC and sentenced to rigorous imprisonment for six months.

2. According to the Dehati Nalishi, Exhibit P11, lodged on 12.10.1997 by PW7, Chandrashekhar Mishra the occurrence is stated to have taken place in two parts on 11.10.1997. The first part of the occurrence took place at about 11-11.30 pm at Mukesh Chowk. The witness was returning from the Temple. The Appellants were sitting at the Mukesh Chowk. The witness enquired from one of them why they were sitting so late in the night leading to a verbal duel followed by fisticuffs and kicking. The witness went home and told his brother Rakesh, the deceased, and Mukesh (PW-9). The three brothers then came back to Mukesh Chowk with Lathis leading to the second part of the occurrence. Appellant Gajanan is then alleged to have assaulted the deceased Rakesh in the stomach while the another accused Bablu and the Appellant Moti also assaulted. The sister of Moti (Laxmi) caught the collar of PW7 and when he turned around, the lathi that he was carrying hit Moti's sister. Moti then assaulted him on the head. The deceased and the injured were taken to the hospital where Rakesh was declared dead. The first information report, Exhibit P-14, was also lodged by PW7 on 12.10.1997 at 2:30 am. The postmortem of the deceased Exhibit P-13, was conducted by Dr. S.R. Churendra, PW12, who found three stab wounds on the lower part of the anterior surface of the right side of the chest, on lower part left iliac fossa and upper part of right gluten region. The injury on PW7, Chandrashekhar Mishra, on the forehead lower left side caused by hard and blunt object was opined by Dr. Dr. S.K. Sinha, PW14, to be simple in nature/The injury on PW9, Mukesh, was penetrating in the abdominal area.

3. A Rojnamchasanha, Exhibit P-2A, was recorded by the police on information given by the Appellant Moti with regard to the injury caused to his sister, the medical report of which states of swelling over right ear with no other external injury. The Appellant Alekho @ Budu is also alleged to have suffered lacerated wound on the scalp on the right parieto occipital area and superficial abrasion on the chest.

4. Learned Counsel for the Appellant submitted that in the first part of the occurrence only fisticuffs and kicks were indulged between the informant and the Appellants. The matter had ended with that. The occasion for the fight was too trivial or rather non-existent. PW7 then went home and called his brothers immediately who came armed with lathis. Both PW7 and his brother PW9, Mukesh have stated that the Appellants were still sitting at Mukesh Chowk and none of them had any weapons of assault in their hands. A fracas ensued which obviously was initiated by PW7 and PW9 and their deceased brother who had returned immediately with lathis making them the aggressors with their intentions obvious. If they had wanted to go to the police station to report the earlier fracas, they could have easily avoided going through the Mukesh Chowk as there was an alternative route available. Their intention therefore was not to go to the police station but to come and fight by settling scores. In such a moment of heat of passion, the Appellant Gajanan and Moti whose house was adjacent are stated to have gone and brought a sword and iron rod. The assault