Bharat Bhushan & Shailendra Kumar Agrawal, JJ.

1. These two connected appeals stem from the same impugned judgment dated 8.7.2005 passed in S.T. No. 286 of 2004 arising out of Crime No. 273 of 2004 (State vs. Shivkesh and Others) under Section 302 of Indian Penal Code (IPC), Police Station (P.S.) Ghatampur, district Kanpur Dehat whereby appellants Shiv Kesh and Rajjan were convicted under Section 302 IPC and Section 302 read with Section 34 IPC respectively. Both appellants were sentenced to life imprisonment along with fine of Rs. 5000/- each with default stipulation. Both appeals have been heard together and are being decided by common judgment.

2. The prosecution story in brief is that Harish Chandra (deceased) cousin brother of informant Shiv Singh Yadav (P.W.1) was sleeping in his house in the night of 3/4.7.2004. Suddenly at about 1 a.m. in the night deceased Harish Chandra raised alarm whereupon informant and other neighbors woke up and rushed towards the place of occurrence flashing battery torches. They saw that appellant Shiv Kesh and his two unknown companions were stabbing Harish Chandra (deceased) with a knife, while co-appellant and father-in-law of Shiv Kesh, namely, Rajjan was holding deceased Harish Chandra. As soon as the witnesses approached the place of occurrence, assailants fled from the spot. It is claimed that the incident was witnessed by P.W.1 Shiv Singh Yadav (informant), P.W.2 Gomti (mother of deceased) and some other persons.

3. The prosecution has claimed that there was sufficient light of battery torches and there was enough moon light as well. P.W.1 Shiv Singh Yadav (informant) dictated the FIR to one Meer Singh scribe which was later on lodged at P.S. Ghatampur under Section 307 IPC at 03.05 am. (Ext. Ka-1) at night. i.e. almost within two hours of the incident. The police personnel sent injured Harish Chandra for treatment to the Primary Health Centre (PHC), Ghatampur through constable Girendra Singh with Chitthi Mazrubi. P.W.9 Dr. Dinesh Singh examined the injured Harish Chandra and found following injuries on his person:

1. Incised wound 4 cm x 1 cm x Scalp deep present on right side of scalp 3 cm above from right ear.

2. Incised wound 5 cm x 0.5 cm x scalp deep present on right side of scalp 1 cm above from right ear.

3. Incised wound 3 cm x 0.5 cm x scalp deep on right side of scalp 10 cm above from right ear.

4. Incised wound 2 cm x 0.5 cm x muscle deep right side of neck 4 cm away from right ear.

5. Incised wound 1.5 cm x 1.0 cm x muscle deep present on right side of face just above angle of mandible.

6. Incised wound 1.5 cm x 0.5 cm x muscle deep present on right side of face 5 cm away from right angle of mouth Adv. xray.

7. Incised wound 2 cm x 1 cm x bone deep in front of neck just above sternum, adv. xray.

8. Incised wound 1.5 cm x 0.5 cm x muscle deep present on right side of chest 1 cm below from injury no. 7

9. Incised wound 6 cm x 0.5 cm x muscle deep present on dorsum of right forearm 6 cm below from right elbow.

10. Incised wound 1.5 cm 1.0 cm x muscle deep on the lateral aspect of right upper arm 7 cm below from right shoulder joint.

4. P.W.9 Dr. Dinesh Singh referred the injured to Kanpur hospital. The medical report prepared by P.W.9 is available on record as Ext. Ka-17. The reference made by P.W.9 Dr. Dinesh Singh has also been proved as Ext. Ka-18.

5. Initially the investigation was taken over by P.W.6 I.O. Ugra Singh Yadav who claims to have recorded the statements of constable Gyan Sagar, P.W.1 Shiv Singh Yadav and injured Harish Chandra immediately. The injured was taken to Kanpur for treatment but he succumbed to injuries at about 6 am. on 4.7.2004 at Madhuraj Nursing Home. This information was furnished to P.S. Ghatampur which was recorded in concerned general diary (GD). Thereafter PW-6 I.O. Ugra Singh Yadav along with constable Urffuddin reached LLR hospital Kanpur where the corpse of deceased Harish Chandra was lying in the precincts of mortuary. Inquest proceedings wer