Heard learned counsel for the appellant Mohd. Yahiya and learned A.G.A.

1. This Criminal Appeal has been filed against the judgment and order dated 25.9.1981 passed by 3rd Addl. Sessions Judge Bijnor in S.T. No. 370/81 State Vs. Fakhruddin etc. in which the appellant Fakhruddin was convicted under Section 304 part II I.P.C. and sentenced to four years R.I. and was also fined Rs. 1000/- and in default of fine six months R.I. and appellants Khalil Ahmad and Mohd. Yahiya under Section 304 Part II I.P.C. read with Section 34 I.P.C. and each of the appellant was sentenced to three years R.I. and were fined of Rs. 500/- and in default further R.I. of three months.

2. In brief, the prosecution case is that on 29.6.1980 at 9:30 pm when Shakil Ahmad, the younger brother of complainant Nasir Hussain was going to market to purchase his household goods, the accused persons Fakhruddin, Khalil Ahmad and Mohd. Yahiya resident of Mohalla Quila town Sahanpur met in the way and due to the old enmity stabbed his brother in his stomach. Meanwhile the informant Nasir Hussain came out from the mosque where he had gone for prayer to Almighty God. He heard noise and hearing that Munna, Baboo and S