( 1 ) IN Sessions Trial No. 51 of 1980, Additional Sessions Judge, Narsimpha Pur, by his judgment dated 10-12-1980 convicted the two appellants for the murder of Sukka and sentenced each of them to imprisonment for life. Appellant Somtibai and appellant Vishal have also been respectively convicted under Sections 328 and 328/34, Indian Penal Code and each has been sentenced to 5 (five) years R. T. for that offence. The sentences have been ordered to run concurrently. By this appeal the two appellants have challenged their convictions and sentences.

( 2 ) APPELLANT Vishal is the son of deceased Sukka. Appellant Somtibai was living with Sukka as his keep since last five years prior to this incident. Appellant Somtibai, from deceased Sukka had a daughter aged about 3 to 4 years, Deceased Sukka and Todal Prasad (P. W. 1) used to work as labourers with one Har Prasad (P. W, 3) who had his brick kiln near river Tinsra. For that reason deceased Sukka, appellant Somtibai and the daughter used to live near the brickkiln in a hut. Todal Prasad (PW. 1) his wife Mantiya (P. W. 2) and three children also lived nearby in a hut at the brickkiln.

( 3 ) THE prosecution case briefly stated is that appellant Vishal had come to his mother appellant Somtibai and was staying with her and the deceased since last three to four days. In the evening of 7-5-1980 shortly before the work was over appellant Somtibai returned to her hut for cooking the food. After sometime deceased Sukka also came there but went away to answer call of nature. In the meantime appellant Vishal and Somtibai ate their food. When deceased Sukka returned back after answering the call of nature, he also ate his food. The deceased then started talking in coherently. Todal Prasad (P. W. 1) and Mantiya (P. W. 2) asked Sukka as to what has happened but Sukka could not answer. Sukka even committed twice. At about mid-night Todal Prasad (P. W. 1) had taken his minor son for answering the call of nature. Mantiya was also in front of her hut. At that time appellant Vishal inflicted knife blows on Sukka. Todal Prasad (P. W. 1), who was then returning with his son, told the appellant Vishal as to what he has done but Todal Prasad was threatened by Vishal and ran away from there.

( 4 ) TODAL Prasad (P. W. 1) went to Police Station Kareli and lodged the First Information Report Ex. P/i on 8-5-1980 at about 7 a. m. This report was recorded by Sub-Inspector J. S. Patel (P. W. 11 ). The Sub-Inspector then went to the spot. He recorded the statements of some witnesses and held an inquest of the dead body of Sukka. He had also seized the blood stained and unstained earth from the spot vide Memo Ex. P/3. He had also seized the vomit which was at a distance of about three feet from the place where the dead body was lying. At a distance of about 12 feet from that spot where the dead body was, he had also seized a white PUDA with fold containing some sugar particles and some powder like thing which was seized vide memo Ex. P/5. On appellant Somtibai's production, an aluminum THALI containing some dried particles was seized vide Memo Ex. P/6. Later on the same day a PUDIYA containing powder like article was also seized at the instance of appellant Somtibai from the hut which was found behind a tin containing flour. Memo Ex. P/7 was prepared in this behalf. ( 5 ) FROM appellant Vishal a shirt and a fullpant were seized from his body vide Memo Ex. P/il. Appellant Vishal had taken the Police Officer to village Aamgaon and from the enclosure behind a house a piece of stone with marks of grinding containing some particles of the article grinded was seized vide Memo Ex. P114. On the same day i. e. on 10-5-1980 appellant from behind his house produced five pieces of outer layer of Dhatura, which were seized vide Memo Ex. P/13. Appellant Vishal had also produced a knife (CHHURI), which was lying concealed near his GHURE. This knife was seized vide Ex. P/12.

( 6 ) DR. Mohnot (P. W. 9) on 8-5-198