1. Heard Sri Shashwat Shukla, learned counsel for the appellant, Sri Awadesh Narayan Mulla, Sri Saghir Ahmad, Kumari Meena, learned AGAs and Smt. Manju Thakur, brief holder for the State.

2. This appeal has been preferred by appellant no.1, Ram Dayal and appellant no.2, Bhanu Pratap against the judgement and order dated 21.08.1989 passed by Ist Additional Sessions Judge, Allahabad in S.T. No. 302 of 1988, State Vs. Ram Dayal & Another, u/s 302 I.P.C. r/w Section 34 I.P.C., P.S.- Mohabbatpur Painsa, District- Allahabad.

3. The brief facts of the case are that on the basis of written report (Ext.Ka.1) lodged by informant Shiv Sahai at P.S.- Mohabbatpur Painsa, District- Allahabad on 28.12.1987 at about 10:35 A.M. in respect of an incident which had taken place on 28.12.1987 at about 8 A.M. Case Crime No. 84 of 1987 u/s 302 I.P.C was registered against A1 Ram Dayal and A2 Bhanu Pratap u/s 302 I.P.C. Check F.I.R. (Ext.Ka.3) and the relevant G.D. Entry were also prepared.

4. In the written report, it was alleged by the informant Shiv Sahai that A1 Ram Dayal was his real brother while A2 Bhanu Pratap was his real nephew and deceased Shiv Kali was his wife. On the date of the incident, deceased Shiv Kali was making cow dung cakes on the kachcha roof of her hut. It was further alleged in the written report that the house of A1 Ram Dayal is adjacent to the informant's house; both houses have separate exits. The roof of Kedar Nath's house is also contiguous to the informant's house which can be accessed through a bamboo ladder. On the date of the incident when the informant was feeding his cattle, he heard the accused abusing his wife Shiv Kali to which she objected, on which A1 Ram Dayal exhorted A2 Bhanu Pratap to finish her as she was the root cause of all the disputes. On hearing the exhortation of A1 Ram Dayal, the informant Shiv Sahai climbed up on the roof by the ladder and saw A2 Bhanu Pratap inflicting lathi blow on Shiv Kali's right hand on which she tried to run away but fell down on the roof of Kedar Nath's house, then A1 Ram Dayal wielded 4 or 5 pharsa blows to his wife Shiv Kali and then both the appellants started advancing menacingly towards the informant on which he jumped from the roof top raising cries for help and immediately returned with Kedar Nath, Ram Dularey and Dharm Raj. But on his return, he found that his wife Shiv Kali had already died and a lot of blood was spilled all over the place. In the F.I.R., it was further alleged that the incident was preceded by an altercation which had taken place at the tube-well between the appellants and Shiv Sahai and his wife Shiv Kali regarding sharing of water for irrigating their fields and A1 Ram Dayal had abused deceased Shiv Kali and the incident was the fallout of the aforesaid altercation. The written report (Ext.Ka.1) of the incident was scribed by one Dharm Raj on the dictation of P.W.1 informant Shiv Sahai. After the registration of it's case, investigation was entrusted to P.W.5 S.I. Hargovind Sahu who immediately reached the place of occurrence and after holding inquest, prepared the inquest report (Ext.Ka.5) and other related documents namely police form 30 (Ext.Ka.6), photo nash (Ext.Ka.7), form 13 challan nash (Ext.Ka.8), letter addressed to R.I. (Ext.Ka.9), two letters addressed to C.M.O (Ext.Ka.10 and Ka.11). Thereafter, he got the dead body of the deceased Shiv Kali sealed and dispatched to District Hospital for conducting postmortem.

5. The postmortem on the cadaver of the deceased was conducted by P.W.4 Dr. A.K. Nigam on 29.12.1987 at about 4 P.M. who also prepared her postmortem report which is on record as (Ext.Ka.2). The postmortem report of the deceased shows following injuries on her dead body:-

1. Abrasion 1-1/2” x 1” of her middle left upper arm

2. Incised wound 1-1/2” x 1/2” on the top of the left shoulder x muscle deep

3. Incised wound 1-1/2” x 1/2” x bone deep back of the left ear 1/2” below to incised wound, inside bone fractured

4. Incised