The main legal point established in the judgment is the interpretation and application of the legal provisions under Section 302 and Section 304 (ii) IPC in determining the appropriate conviction and sentence for the appellant.

( 1 ) THROUGH this appeal, the appellant challenges the judgment and order dated 8-10-1980 passed by the iii Additional Sessions Judge. Lucknow, in sessions Trial No. 21/1980, convicting and sentencing him to undergo imprisonment for life for the offence punishable under Section 302 I. P. C. It is pertinent to mention that along with the appellant was tried his real brother sadhu, who has been acquitted vide the impugned judgment and the State of U. P. has not impugned his acquittal by preferring an appeal under Section 378 (1) Cr. P. C.

( 2 ) SHORTLY stated the prosecution case runs as under : the informant Umrao (PW-1) was the brother of the deceased Newaji. At the time of the incident the informant, deceased, the informants wife Smt. Kamla (PW-3), the informant s sister-in-law Smt. Madhu Rani (CW-1), the appellant and the acquitted accused sadhu were living in different portions of the same house in village babapurwa, hamlet of Shivpuri within the limits of Police Station, Itaunja, District lucknow. The appellant and Sadhu were the sons of the uncle of the informant. There was a common outlet of the house of the informant and others on one hand and the appellant and Sadhu on the other. With regard to it the relations between them were strained. On the date of the incident i. e. on 4-9-1979, at about sunrise, the son of the appellant had defecated near the fodder cutting machine of the deceased Newaji, in front of the house of the appellant and the informant. As a consequence thereof the leg of the deceased Newaji got soiled. Newaji shouted as to who had defecated. Thereupon the wife of the appellant replied that her son had defecated. On that the appellant said that the daily pin pricks be finished and challenged that Newaji be killed. Appellants brother Sadhu was also present there. Then the appellant, who was having a ballam in his hands, inflicted a blow on the abdomen and neck of Newaji. When the informant protested against Newaji being assaulted co-accused Sadhu inflicted a lathi blow on him. The informants wife Kamla tried to save the informant whereupon the appellant assaulted her with a ballam. Co-accused sadhu also assaulted the informant and kamla and inflicted a gandasa blow on the person of Kamla. After assaulting, Newaji. the informant Umrao and his wife Kamla, the appellant, and acquitted accused Sadhu ran away. The informant, who as a consequence of the assault had become unconscious, regained his conscious ten to fifteen minutes later and discovered that Newaji was dead. Thereafter on the place of the incident he scribed his F. I. R. and along with his wife proceeded to Police Station Itaunja, where he lodged his F. I. R.

( 3 ) THE evidence of Constable K. P. Tiwari (PW-4) shows that on 4-9-1979 he was posted as Constable Clerk at Police Station itaunja and the informant Umrao lodged his f. I. R. on the basis of which he registered an offence under Section 302 I. P. C. A copy of the chik F. I. R. shows that the F. I. R. was registered on 4-9-1979 at 8. 30 A. M. and the distance between the place of the incident and the police station was five kilometers.

( 4 ) THE autopsy on the corpse of the deceased Newaji was conducted on 5-9-1979 at 11. 30 A. M. by Dr. M. S. Kunwar (PW-5), who found on it the following ante-mortern injury:"stab wound 3 cm x 2. 5 cm present on right side of neck 10 cm below the right ear. The wound have clean cut edges which are parallel but slightly curved to each other like an ellipse and have sharp angle at the two extremeties. The wound is muscle deep and probe Is passing upto 9 cm deep. The clotted blood is coming out from the wound and present around the wound. "the cause of death spelt out in the post mortem report was shock and haemorrhage as a result of the ante-mortem injuries suffered by the deceased.

( 5 ) THE injuries of Umrao were medically examined by Dr. V. S. Shukla (PW-8) on 4-9-1979 at 11. 00 A. M. at PHC Itaunja, lucknow. Dr. Shukla found on his person