The Sessions Judge, Gorakhpur in S. T No. 271 of 1979 con victed the appellant under Section 302, I. P. C. and sentenced him to life imprison ment. Through the same judgment co-ac cused Munai appellant in

Criminal Appeal No. 457 of 1980 was convicted under Section 323/34, I. P. C. and sentenced to six months rigorous imprisonment. The appeal of Munai has abated due to his death. We have partly allowed the appeal of Markan dey, appellant have acquitted him under S. 302, I. P. C. but have convicted him under Section 304 (II) and have sentenced him to five years rigorous imprisonment. The-reasons for our judgment are as follows :

2. Appellant Markandey and co-ac cused Munai are son and father. Deceased Chirkut was the elder brother of appellant Markandey. They lived in village Math Khem Karan situate within Police Section Sikriganj, district Gorakhpur. Chirkut being dissatisfied with his father and brother obtained a partition about one year before the occurrence and started living in the northern portion of the house alongwith his wife P. W. 2 Phoola Devi and four children. The appellant and his father lived in the southern portion. On 5. 5. 1979 at about 6. 30 p. m. t