Hon’ble V.D. Chaturvedi, J.—This criminal appeal is directed against the judgment and order dated 17.2.1982 passed by Sri R.N. Agarwal, the then IInd Addl. Sessions Judge, Rampur in Sessions Trial No. 378 of 1980 whereby he convicted the appellant Jumma under Section 302 and 307/34 I.P.C. and appellant Mohd. Zahoor under Section 302/34 and 307 I.P.C. and sentenced them to imprisonment for life and five years R.I. for respective offences. He also sentenced each of them to pay a fine of Rs. 200/- or to undergo six months R.I. in default of payment of fine. The sentences were made to run concurrently.

2. The complainant Akhtar Ali (P.W.1) orally lodged a report (Ex. Ka-1) at 10.30 p.m. on 27.5.80 at P.S. Kemri, district Rampur stating that a litigation regarding the residential land was pending between him and the accused Jumma; that on the date of report (27.5.80) at about 6.00 p.m. his sister Mustafaee (P.W. 3), after taking water from Becha’s house, was on her way back to his house; that when she reached near the house of accused Jumma, he and his son Mohd. Zahoor stopped her and abused her, hence an altercation started between them; that on hearing hue and cry his brothers Safdar and Munney (P.W. 2)(injured) and uncle Habibullah (deceased) reached there; that the altercation turned into exchange of abuses; that Shahid Ahmad, Abdul Mahmood (P.W. 4) and he (complainant) also reached there and saw that accused Jumma and his son Mohd. Zahoor dashed into their house and came back with knives and said that they would close the chapter of their day to day quarrels; that accused persons surrounded Munney, Safdar and Habibullah, and thereafter accused Jumma inflicted a knife blow at the chest of Habibullah, and accused Zahoor inflicted knife blows at the chests of Munney and Safdar; that he (complainant) and witnesses raised shouts whereupon the accused Jumma and Mohd. Zahoor ran towards Jungle; that Habibullah, after entering into his (complainant’s) house, fell down on a cot and died; that injured Munney and Safdar were taken to the police station on a tractor.

3. The investigation was conducted by Satyendra Pal Tyagi , the then Station Officer of P.S. Kamri. He was juxtaposed as D.W.3.

4. Dr. G.N. Saxena conducted autopsy on the corpse of Habibullah on 28.5.80 at 12.30 p.m. He was aged about 55 years and about 18 hours had passed since his death. He found the following single ante mortem injury on his corpse :

(1) Stab wound 3 cm x 1 cm. x chest cavity deep over the middle part of sternum in the mid line of chest 4 cm. below from the inner end of clavicle of right side. The direction is upward and downward.

5. In Doctor’s opinion the death was caused due to shock and haemorrhage as a result of this injury.

6. The post mortem report (Ex.Ka 8) shows that pericardium and the lower part of the left chamber was cut under injury No. 1. Both chambers of heart were empty and one litre fluid blood was found present in (left) chest cavity.

7. Dr. A.U. Khan examined injured Munney and Safdar on 28.5.80 at 2.05 a.m. and 2.30 a.m. respectively and prepared their injury reports Ext. Ka-10 and Ka-9 respectively.

The following injuries were found on the person of Munney :

(1) Incised wound 2.5 cm x 1cm. x depth not probed over the left side upper part of chest 3 cm. lateral to the medial end of the left clavicle. Surgical emphysema present. Injury kept under observation and X-ray advised.

(2) Linear abrasion of 7 cm. in length transverse in direction over the left side chest upper part 1.5 cm. away from the injury No.(1)

The Doctor found the following two injuries on the person of injured Safdar :

(1) Incised wound 3 cm. x 1cm. x depth not proved over the right side chest 6.5 cm. above and medial to the right nipple. Injury kept under observation and X-ray advised.

(2) Abrasion 1 cm. x 1cm. over the middle of the chin in its front.

8. The blood stained clothes of injured Munney and Safdar were collected and their memo