Hon’ble Vineet Saran, J.—One Mahipal had received injuries on 19.6.1981 regarding which a first information report was lodged on the same day by his wife, which was registered under Section 307, I.P.C. Since as a result of the injuries sustained, said Mahipal expired after a few minutes of lodging of the first information report, the case was converted under Section 302, I.P.C. The appellants Yashpal and Jagpal, who are the real brothers of Mahipal, were charged for offence under Section 302, I.P.C. read with Section 34, I.P.C. for which they have been convicted vide judgment and order dated 13.4.1982 passed by III Additional District & Sessions Judge, Meerut in Sessions Trial No. 263 of 1981 and have been sentenced to undergo rigorous imprisonment for life. It is against such judgment that this appeal has been preferred by the said appellants.

2. During the pendency of this appeal it was reported that appellant No. 1 Yashpal has died. Thus by order dated 5.10.2009 the appeal on behalf of Yashpal has already abated.

3. In brief, the prosecution story is that Mahipal had three brothers, namely, Yashpal (appellant No. 1), Jagpal (appellant No. 2) and Jagdish. Mahipal lived separately whereas Yashpal and Jagpal lived together. The dispute is said to be with regard to the pumping set installed on the chak, which was jointly owned by the appellants and Mahipal. It is stated that the accused persons created obstruction in the irrigation of the chak of Mahipal from the said pumping set. As per the prosecution case, on 19.6.1981 Mahipal started irrigating his land from the pumping set of one Balla Pandit of his village. Around noon, his wife Smt. Ombiri, who is the complainant, went to the said boring of Balla Pandit with meals for her husband Mahipal, who, after having his meals, went towards his chak to check the irrigation. According to the prosecution case, when Mahipal arrived on his chak, the accused Yashpal and Jagpal started abusing him saying that before irrigating his fields from the pumping set of some other person, he (Mahipal) should first obtain partition of his pumping set. The accused persons were armed with spades. When Mahipal asked them not to abuse him, the accused Yashpal and Jagpal started giving blows with their spades on the head of Mahipal. The complainant Smt. Ombiri started shouting and went towards her husband Mahipal. The accused Jagpal pushed her, on account of which she fell on the ground. On hearing the shouts of Smt. Ombiri, other persons of the village, namely, Bhullan son of Hargyan and Laxmi Chand son of Shanker rushed to the spot and on seeing them, the accused Yashpal and Jagpal ran away towards the village. It is stated that the incident took place at about 1.00 p.m. in the day. Because of the injuries sustained by him, Mahipal became unconscious and fell on the ground. Thereafter the complainant Smt. Ombiri, with the help of Bhullan and Laxmi Chand, took Mahipal to the police station and lodged the report at 4.45 p.m. on the same day. At the police station S.I. Akhtar Ali was present and he started the investigation. He recorded the statement of the injured Mahipal, who was wavering between consciousness and unconsciousness. The injured Mahipal was then sent to P.H.C. Chhaprauli. At the P.H.C. Dr. Sita Ram, P.W. 3, medically examined the injured Mahipal at 5.00 p.m. Within 5 minutes thereafter i.e. at 5.05 p.m. the injured Mahipal died at the P.H.C. itself, of which an information was sent to the police station on the same day at 5.30 P.M. and the case was converted from one under Section 307 to Section 302, I.P.C. Akhtar Ali, S.I. reached the P.H.C. Chhaprauli and took the dead body of Mahipal in his custody and sent the same for post mortem examination, which was performed by Dr. Raj Kumar at 4.15 p.m. on 20.6.1981. The statement of Smt.Ombiri was already recorded at the police station. The I.O. also interrogated the witnesses Baljeet and Abdul Hameed in whose presence he had recorded th