JUDGMENT :

Ashwani Kumar Mishra, J.

1. These two appeals are by the brothers of Dilshad, namely Saleem and Firoz, challenging the judgment and order of conviction and sentence, dated 28/29.8.2008, passed by the Additional Session Judge, Court No.11, Ghaziabad in Session Trial Nos. 383 of 1998 (State vs. Saleem @ Pappu and Firoz) and 309 of 1999 (State vs. Firoz), whereby the accused appellant Saleem @ Pappu has been convicted and sentenced to life imprisonment under Section 302/34 IPC with fine of Rs.10,000/- and has also been convicted and sentenced to ten years rigorous imprisonment under section 307/34 IPC with fine of Rs.5,000/- and accused appellant Firoz has been convicted and sentenced to life imprisonment under Section 302/34 IPC with fine of Rs.10,000/- and has also been convicted and sentenced to ten years rigorous imprisonment under Section 307 IPC with fine of Rs.5,000/- and he has also been convicted and sentenced to one year rigorous imprisonment under Section 25/4 Arms Act with fine of Rs.1,000/-. In default of fine accused appellants are to undergo two years rigorous imprisonment under section 302/34 IPC and one year rigorous imprisonment under Sections 307/34 IPC and 307 IPC and three months rigorous imprisonment under Section 25/4 Arms Act. All the sentences shall run concurrently.

2. Prosecution case, in brief, is that the first informant Tahzeeb alongwith Suhail had gone to meet Mazid Ali (injured witness, PW-2) and his brother-in-law Fasiuddin (deceased) at their workshop and their helper Moinuddin was also present at 09.30 AM, when their neighbour Saleem @ Pappu, Firoz and Dilshad sons of Imamuddin started sweeping areas in front of their workshop such that dust started coming to the workshop of Mazid. Mazid and Fasiuddin accordingly asked the three accused to sprinkle water before sweeping the area so that dust does not come to their workshop and on this Saleem, Firoz and Dilshad started abusing them. Mazid and Fasiudding asked them not to do so on which the accused persons attacked them with knife. Saleem grabbed Fasiuddin and Dilshad stabbed him and Firoz stabbed Mazid. Seeing the occurrence neighbours and adjoining workshop owners rushed to the spot and tried to apprehend the accused persons but they fled. Mazid and Fasiuddin were taken to government hospital where Fasiuddin was declared dead and his dead body was kept in mortuary. Mazid after first aid was taken to Yashoda Hospital and was admitted there. It is with these contents that written report (Ext. Ka-1) was entered in the General Diary and registered as Case Crime No.594 of 1997 on 27.09.1997 at 12.20 PM, under Sections 302/307 IPC, Police Station Sihanigate, District Ghaziabad. Individual role of accused appellant Saleem @ Pappu is of grabbing/catching hold the deceased Fasiuddin while accused appellant Firoz is accused of causing stab injury to Mazid. Section 34 IPC has also been invoked since the prosecution asserted that with a common intent the three accused persons have committed the offence in which one person, namely Fasiuddin, died and another Mazid sustained stab injury.

3. After registration of FIR the investigation proceeded. The Investigating Officer reached the spot and collected the bloodstained and plain earth. The inquest also followed. The inquest witnesses were of the view that the deceased died due to stabbed injury caused on his chest. The post-mortem of the deceased Fasiuddin was conducted on 28.09.1997 and the autopsy doctor opined the cause of death to be shock and haemorrhage due to following ante-mortem injury:-

"1. Incised wound 2cm x 1(1/2)cm x chest cavity deep on left side chest 7 cm away from left nipple at 10 o' clock position."

4. A subsequent FIR came to be lodged on 12.10.1997 at 02.00 AM when accused appellant Firoz and Dilshad were arrested on 11.10.1997 at 11.15 PM and two similar knives were recovered fro