Rajeev Misra, J.

1. The present Criminal Appeal stems out of the judgement and order dated 08.02.2010 passed by the Additional Sessions Judge, Court No.-8, Varanasi in S.T. No. 384 of 2007 (State Vs. Shaloo @ Manjeet Pandey and another) convicting the accused appellants under Section 302/34 I.P.C., and sentencing them for life imprisonment with a fine of Rs. 10,000/-. Upon failure to deposit the fine the accused appellants are to further under go additional imprisonment of one year. The period of sentence already under gone is to be adjusted towards the period of sentence so awarded.

2. Before adverting to the prosecution story as unfolded in the F.I.R., the back ground facts as emerging from the evidence of the three prosecution witnesses of facts i.e. P.W. -1, P.W.-2 and P.W.-3 need to be noticed for better appreciation of the motive alleged behind the cause of occurrence, the circumstantial evidence which will complete the chain of events leading to the occurrence for which prosecution has been launched against the accused appellants, the credibility of the oral dying declarations alleged to have been made by the deceased implicating the accused appellants in the commission of the crime in question for which they have been charged and the defence set up by the accused-appellants in opposition to the aforesaid.

3. One Ganga Saran Misra was working as a Manager in a Dharmsala situate at Pisach Mochan, Varanasi owned by Girish Chand Misra. As such Ganga Saran Misra was the employee of Girish Chand Misra. Satisfied with the hard work, honesty and integrity of Ganga Saran Misra the owner of the Dharmsala namely, Girish Chand Misra gave a shop situate in the Dharmasala to Ganga Saran Misra on rent. Ganga Saran Misra opened a service centre in the rented shop in the name and style of Balaji Service Center. Seven years before the occurrence, Ganga Saran Misra inducted one of the accused Shaloo Pandey (who happens to be the son of his sister) in the running of the service center with the understanding that the accused Shaloo Pandey will run the service center and give one half of the net profit to Ganga Saran Misra. As such, Shaloo Pandey started running the aforesaid service center. One year before the occurrence, some verbal altercation took place between the accused Shaloo Pandey and Ganga Saran Misra. The accused Shaloo Pandey took the stand that he alone shall run the service center and thus would not part with the profits of the same. The situation did not rest here. On 8.7.2007, the accused Shaloo Pandey misbehaved with Ganga Saran Misra and exchanged hot words with him. Feeling desperate, Ganga Saran Misra commanded the accused Shaloo Pandey to vacate the shop within 15 days. This was taken as a challenge by Shaloo Pandey and he retorted by stating that only if Ganga Saran Misra survives for 15 days, he will be able to get the shop vacated.

4. On 10.7.2007, the marriage reception of one Vikas Pandey was scheduled at Pallavi Hotel, Varanasi. Ganga Saran Misra along with Mikky Rai left his home at 7:30 pm to attend the aforesaid marriage reception. At 9:15 p.m., the accused persons along with four other unknown men came to Pallavi Hotel and took Ganga Saran Misra along with them.

5. Thereafter, according to the prosecution case the accused-appellants are alleged to have assaulted Ganga Saran Misra (the injured) inflicting deep and grievous injuries on his body. Having assaulted the injured in a manner that would virtually leave him dead, the accused persons abandoned him near the railway track on the outer side of the railway Station which is a lonely place in hope that he would die soon. However, as luck could have it, the pain and agony of the injured attracted the attention of some people and a small crowd gathered around him. At this point of time, P.W.-4, who is a Constable Driver, was returning from his home i