Judgment Syed Md.Mahfooz Alam, J. 1. Both these criminal appeals are being disposed of analogous as they arise out of the common judgment. The judgment will be delivered in Criminal Appeal No. 253 of 2001. 2. Both these criminal appeals are directed against the judgment dated 15.5.2001 and order dated 16.5.2001 passed by Sri Mungeshwar Sahoo, 4th Additional Sessions Judge, Bhojpur, Ara in Sessions Trial No. 410/98 whereby he has been pleased to convict appellant Rajendra Kahar under Section 302 of the Indian Penal Code (hereinafter will be called "I.P.C.") and appellant Digree Kahar under Section 302/34 of the I.P.C. Both the appellants were sentenced to undergo imprisonment for life under Section 302 I.P.C. and under Section 302/34 of the I.P.C, respectively. 3. The prosecution case, as per the fardbeyan of P.W. 6 Brij Nandan Yadav alias Brij Nandan Singh of village Bhadwar P.S. Chandi, District Bhojpur recorded by ASI R.P. Singh of Pirbahore Police Station, District Patna on 21.4.1998 at 10.A.M. at P.M.C.H in Emergency Ward, in brief, is that he is a cultivator and his son Sanjay Kumar (deceased) was also a cultivator. On 19.4.98 at about 5.30 P.M. when he (P.W. 6) was working in his Khalihan situated in front of his house, his younger son Ajay Kumar came there and told him that appellant Rajendra Kahar has charged higher price of Surf. On getting this information, P.W. 6 sent his another son Sanjay Kumar (deceased) to the shop of Rajendra Kahar. Further case is that a few minutes later informants nephew Jagesh Rai (P.W. 4) came there and told the informant that both the appellants alongwith Kaus Kahar had caught hold of his son Sanjay Rai after surrounding him and thereafter Rajendra Kahar had inflicted Chhura blow on his neck. On getting this information about the occurrence, the informant immediately rushed to the place of occurrence and saw his son Sanjay Kumar lying in front of the shop of appellant Rajendra Kahar in injured condition. Blood was oozing out from his wound. He was lying unconscious. Further case is that the occurrence was witnessed by Jagesh Rai (P.W. 4), Jitendra Kumar (P.W. 2), Mahendra Rai and Others. Further case is that his son Sanjay Kumar was firstly removed to Ara Hospital wherefrom he was referred to Patna Medicai College & Hospital where in course of treatment he. He was lying unconscious. Further case is that the occurrence was witnessed by Jagesh Rai (P.W. 4), Jitendra Kumar (P.W. 2), Mahendra Rai and Others. Further case is that his son Sanjay Kumar was firstly removed to Ara Hospital wherefrom he was referred to Patna Medicai College & Hospital where in course of treatment he. died in between the night of 20/21.4.1998 at P.M.C.H. After death of Sanjay Kumar Pirbahore Police arrived at P.M.C.H, and before ASI, R.P. Singh of Pirbahore Police Station, informant Brij Nandan Singh gave his fardbeyan which was forwarded to Chandi Police Station and on receipt of the fardbeyan in the P.S., Chandi P.S. Case No. 40/98 dated 25.4.1998 under Sections 341, 342, 326, 307 and 304/34 of the Indian Penal Code was instituted and investigation was entrusted to ASI, Moti Thakur of the said P.S. who investigated the case and submitted chargesheet under abovementioned sections. Accordingly, cognizance was taken and the case was committed to the Court of Session. 4. The defence case, in brief, is that the appellants were falsely implicated in this case and the fact is that on the alleged date of the occurrence (19.4.98) at about 7 P.M. Sunil Kumar, son of appellant Digree Kahar and own brother of appellant Rajendra Kahar was selling eggs and betel in his shop. In the meantime, Sanjay Kumar Yadav (deceased) alongwith Tengar Yadav alias Rajesh Rai (P.W. 5) came there and demanded betel as well as eggs from Sunil Kumar whereupon Sunil Kumar told him to firstly clear the previous dues. On this both the persons got enraged and started assaulting Sunil Kumar with Danda. Appellant Digree Prasad tried to intervene whereupon Pintu Yadav, Rajesh Yadav and Brij Nandan Yadav (father of the deceased, Sanjay Kumar) came there with lathi in their hands and started assaulting and abusing him. The occurrence was witnessed by Tapeshwar Rai and others. Further defence case is that for the said incident appellant Digree Prasad lodged a written complaint in Chandi Police Station on the basis of which Chandi P.S. Case No. 39/98 under Sections 341, 323 and 504/34 of the Indian Penal Code was instituted against Sanjay Kumar (deceased) and four others including the father of the deceased Brij Nandan Yadav. Further defence case is that for the said incident appellant Digree Prasad lodged a written complaint in Chandi Police Station on the basis of which Chandi P.S. Case No. 39/98 under Sections 341, 323 and 504/34 of the Indian Penal Code was instituted against Sanjay Kumar (deceased) and four others including the father of the deceased Brij Nandan Yadav. Further case of the defence is that this case has been filed by the informant Brij Nandan Yadav to make out a defence of Chandi P.S. Case No. 39/98. 5. On 7.11.1998 learned 4th Additional Sessions Judge, Bhojpur Ara after hearing both the parties framed charge under Section 302 of the I.P.C. against appellant Rajendra Kahar and under Section 302/34 of the I.P.C. against appellant Digree Kahar. Both the appellants denied the charge and as such, they were put on trial and by the impugned judgment, they were convicted and sentenced, as mentioned above. 6. The argument of the learned defence counsel was that the judgment and order of conviction is bad in law as well as on facts and the learned trial Judge has not properly appreciated the evidence available on record. The learned trial court has also failed to appreciate that all the witnesses examined on behalf of the prosecution are highly interested witnesses and not a single independent witness has been examined on behalf of the prosecution. The learned trial court failed to consider that there was abnormal delay in lodging this case and no plausible explanation has come from the side of the prosecution regarding (his abnormal delay. It has further been submitted that the learned trial court failed to appreciate that although it is established that the appellants had also sustained injuries on their persons and there was counter version of the occurrence but the learned trial court did not consider this aspect of the case. On the basis of the above arguments, the learned defence counsel has prayed to acquit the appellants. 7. From perusal of the records of the trial court it appears that in support of the prosecution case, altogether eight witnesses were examined, namely, Surendra Sah P.W. 1, Jitendra Rai P.W. 2, Rajendra Rai P.W. 3, Jagesh Rai P.W. 4, Tengar Rai @ Rajesh Rai P.W. 5, Brij Nandan Yadav P.W. 6, Moti Thakur P.W. 7 and Dr. Ashok Kumar Dutt P.W. 8. Ashok Kumar Dutt P.W. 8. Out of the said witnesses, P.W. 6 Brij Nandan Yadav is the informant of the case, he is not the eye-witness of the occurrence rather he is a hear-say witness. P.W. 1 Surendra Sah, P.W. 2 Jitendra Rai, P.W. 3 Rajendra Rai, P.W. 4 Jagesh Rai and P.W. 5 Tengar Rai @ Rajesh Rai are said to be eye-witnesses of the occurrence. P.W. 7 Moti Thakur is the Investigating Officer whereas P.W. 8 Dr. Ashok Kumar Dutt is the Associate Professor, Department of Forensic Medicine, P.M.C.H., Patna, who had conducted autopsy on the dead body of Sanjay Kumar aged about 20 years, son of informant Brij Nandan Singh. On behalf of the defence, two witnesses were examined, namely, Ram Shankar Lal and Tarkeshwar Prasad. 8. First of all, I would like to examine whether the death of Sanjay Kumar was homicidal? In this regard the evidence of P.W. 8 Dr. Ashok Kumar Dutt and his post mortem report (Ext. 7) will be relevant. His evidence is as follows: On 24.4.1998 at about 11.30 A.M. he conducted post mortem examination on the dead body of Sanjay Kumar, a Hindu Male aged 20 years and found the following: (i) Rigor mortis was present all over the body. One punctured wound 2" x 3/4" x 3" (As per P.M. report 2" x 1/4" x 3") was found just below the right ramus of mandible, on the upper part of right side of neck. The margins were clear cut infiltrated with blood and blood clots. On internal examination, muscles, soft tissues including blood vessels were found cut with trachea and oesophagus with blood and blood clots. He has further deposed that the abovementioned injury was ante mortem, grievous and dangerous to life in ordinary course of nature caused by sharp pointed weapon. He has opined that the cause of death was haemorrhage and shock. He has proved his post mortem report which has been marked Ext. 7. Thus, from the evidence of P.W. 8 coupled with the post mortem report (Ext. 7), l do not find any difficulty in holding that the death of Sanjay Kumar was homicidal. This fact further finds corroboration from the inquest report (Ext. 5) column 8 of which shows that the Investigating Officer had also found that the deceased had died due to the dagger injury inflicted to him on his neck. 7), l do not find any difficulty in holding that the death of Sanjay Kumar was homicidal. This fact further finds corroboration from the inquest report (Ext. 5) column 8 of which shows that the Investigating Officer had also found that the deceased had died due to the dagger injury inflicted to him on his neck. On the basis of the above materials, I hold that the death of Sanjay Kumar was homicidal. Now I would like to see whether the prosecution witnesses have supported the prosecution case that the appellants are responsible for committing the murder of deceased Sanjay Kumar. Therefore, in the following paras, I would discuss the evidence of the prosecution witness. 9. P.W. 1 Surendra Sah has deposed that on 19.4.1998 at about 5.30 P.M. he had gone to the Gumati of Jagesh for purchasing Khaini. On reaching there he saw some altercation taking place between the deceased Sanjay Kumar and appellant Rajendra on the point of the price of Surf and in the meantime, Digree and Kaus caught hold of Sanjay and Rajendra Kahar inflicted Chhura blow on the neck of Sanjay. Sanjay started bleeding. He fell down and became unconscious. Sanjay was taken to Ara on a cot and after 3 or 4 days he came to know that Sanjay had died. In cross-examination, this witness has deposed that although he saw altercation taking place between Sanjay and Rajendra but he did not intervene. 10. P.W. 2 Jitendra Rai has deposed that at the time of the occurrence he was at his Gumati. He heard huita coming from the Gumati of Jagesh. (There is evidence that adjacent to the Gumati of Jagesh there is Gumati of appellants). He has further deposed that on hearing hulla he went near the Gumati of Jagesh Rai and on reaching there he saw appellant Digree and Kaus (not appellant) catching hold of Sanjay and appellant Rajendra inflicting Chhura blow on the right side of the neck of Sanjay as a result of which Sanjay fell down and became uconscious. He was taken to Ara Hospital and from there he was taken to P.M.C.H. where he died. He has further deposed that due to charging of excess price of Surf, the quarrel had taken place. In cross-examination he has deposed that he did not try to intervene in the quarrel or to rescue Sanjay Kumar. 11. He was taken to Ara Hospital and from there he was taken to P.M.C.H. where he died. He has further deposed that due to charging of excess price of Surf, the quarrel had taken place. In cross-examination he has deposed that he did not try to intervene in the quarrel or to rescue Sanjay Kumar. 11. P.W. 3 Rajendra Rai has deposed that at the time of the occurrence he was taking betel from the shop of Jagesh. He saw some altercation taking place between Sanjay and Rajendra Kahar, Digree Kahar and Kaus Kahar. He has further deposed that in the meantime, Digree Kahar and Kaus Kahar caught hold of Sanjay and Rajendra gave Chhura blow on the right side of the neck of Sanjay. Sanjay fell down and became unconscious. This witness has also deposed in para-10 of his cross-examination that he also did not try to intervene in the quarrel between Sanjay Kumar and Rajendra Kahar. 12. P.W. 4 Jagesh Rai has deposed that at the time of the occurrence i.e. on 19.4.1998 at 5.30 P.M. he was at his Gumati. Adjacent to his Gumati there is a Gumati of appellant Rajendra Kahar. He heard hulla coming from the Gumati of Rajendra Kahar as altercation was going on between Sanjay and Rajendra Kahar on the question of charging of higher price of Surf. He has further deposed that in the meantime Digree Kahar and Kaus Kahar caught hold of Sanjay and appellant Rajendra Kahar gave Chhura blow to Sanjay on his right side of the neck. Sanjay fell down and became unconscious. He has further deposed that he immediately rushed to the house of Sanjay and informed his father and thereafter he took Sanjay to Sadar Hospital, Ara and from there he was referred to P.M.C.H. where Sanjay died in the night. He has further deposed that the police had recorded the statement of the father of Sanjay upon which he had also put his signature. He has further deposed that the Police Officer had prepared inquest report of deceased Sanjay and he had also signed over the inquest report. This witness has also deposed in cross-examination that he also did not try to intervene in the quarrel taking place between Sanjay Kumar and the accused persons. 13. He has further deposed that the Police Officer had prepared inquest report of deceased Sanjay and he had also signed over the inquest report. This witness has also deposed in cross-examination that he also did not try to intervene in the quarrel taking place between Sanjay Kumar and the accused persons. 13. P.W. 5 Tengar Rai alias Rajesh Rai has deposed that on 19.4.1998 at about 5.30 P.M. he was at his shop. On hearing hulla he came out of his shop and saw Digree and Kaus Kahar catching hold of Sanjay and appellant Rajendra Kahar inflicting Chhura blow on his neck. He has further deposed that Sanjay fell down and became unconscious. 14. RW. 6, Brij Nandan Yadav, who is the informant of the case and is the father of the deceased Sanjay, has deposed that he got knowledge about the incident from RW 4 Jagesh Rai. He has further deposed that P.W. 4 Jagesh Rai told him that Digree Kahar and Kaus Kahar had caught hold of Sanjay and thereafter Rajendra Kahar had given Chhura blow to him. He has further deposed that on getting the above information, he went to the place of occurrence and saw his son Sanjay lying there in injured condition. He was bleeding profusely. The wound was at his neck. He has further deposed that he brought Sanjay to Sadar Hospital, Ara from where he was referred to P.M.C.H. after some treatment but in the night of 21.4.1998 Sanjay died in P.M.C.H. He has further deposed that in P.M.C.H. he gave his fardbeyan before the police and put his signature on the said fardbeyan which has been marked Ext. 1/1. He has further deposed that the Sub-Inspector of Police had also prepared inquest report and on that report also he put his signature which has been marked Ext. 2/1. 15. From the evidence of P.W. 6 it appears that he has corroborated the evidence of P.W. 4 that for the first time he (P.W. 4) had given information to P.W. 6 about the incident. The evidence of the abovesaid witnesses further shows that all the abovesaid witnesses have unanimously deposed that appellant Digree Kahar and Kaus Kahar (not appellant) had caught hold of deceased Sanjay and appellant Rajendra Kahar had given Chhura blow on the right side of the neck of Sanjay. The evidence of the abovesaid witnesses further shows that all the abovesaid witnesses have unanimously deposed that appellant Digree Kahar and Kaus Kahar (not appellant) had caught hold of deceased Sanjay and appellant Rajendra Kahar had given Chhura blow on the right side of the neck of Sanjay. They have also deposed that being injured Sanjay fell down and blood started oozing out profusely from his wound. 16. Thus, from the evidence of P.Ws. 1, 2, 3, 4, 5 and 6 it appears that all the abovesaid witnesses have supported the prosecution case that the appellants are responsible for committing the murder of deceased Sanjay Kumar. They are unanimous on the point that firstly Digree Kahar and Kaus Kahar caught hold of Sanjay Kumar and then appellant Rajendra Kahar inflicted Chhura blow on his neck as a result of which he (Sanjay Kumar) fell down, started bleeding profusely and was shifted to Ara Hospital and thereafter he was taken to PMCH where he died due to Chhura injury suffered by him on his neck. According to the evidence of P.W. 8 Dr. Ashok Kumar Dutt, the injury found on the right side of the neck of the deceased was ante mortem, grievous and dangerous to life in ordinary course of nature. Thus, it is established beyond doubt that deceased Sanjay had died due to the injuries suffered by him at the hands of the appellants and therefore, it is established beyond doubt that the appellants are responsible for the death of deceased Sanjay Kumar. 17. It has been argued on behalf of the appellants that practically all the eyewitnesses are close relatives of the informant as well as the deceased and no independent witness has been examined on benalf of the prosecution and so, the learned trial court should have disbelieved the evidence of the prosecution witnesses. It is true that in this case most of the prosecution witnesses are close relatives of the informant as P.W. 3 Rajendra Rai is cousin brother of the informant whereas P.W. 4 Jagesh Rai and P.W. 5 Tengar alias Rajesh Rai are own nephews of the informant. It is true that in this case most of the prosecution witnesses are close relatives of the informant as P.W. 3 Rajendra Rai is cousin brother of the informant whereas P.W. 4 Jagesh Rai and P.W. 5 Tengar alias Rajesh Rai are own nephews of the informant. Even P.W. 2 Jitendra Rai is also relative of the informant but only on this point that the witnesses are close relatives of the informant, their testimony cannot be discarded as they appear to be natural witnesses and at least, the presence of P.W. 2 Jitendra Rai, P.W. 4 Jagesh Rai and P.W. 5 Tengar Rai @ Rajesh Rai at the P.O. cannot be doubted as they have got their own Gumati near the place of occurrence. Even the l.O. (P.W. 7) has deposed that at the place of occurrence there are altogether 4 Gumatis and the Gumati of Rajesh Rai (P.W. 5) is in the southern boundary of the Gumati of appellant Digree Kahar. I, therefore, hold that although most of the prosecution witnesses are relatives of the informant/deceased but since they appear to be natural witnesses, as such their testimony cannot be discarded. 18. It has further been argued that the cross-examination of the prosecution witnesses will establish that they were not actually present at the time of the occurrence as all the witnesses have stated that they did not try to intervene in the quarrel which was going on between appellant Rajendra Kahar and Sanjay Kumar although they saw the appellant Rajendra Kahar with Chhura. In this regard, the learned defence counsel referred to para-4 of the deposition of P.W. 1, para-6 of the deposition of P.W. 2, para-10 of the deposition of P.W. 3 and para-8 of the deposition of P.W. 4. In the paras referred to above, the abovementioned witnesses have deposed that they did not try to intervene in the quarrel which was going on between deceased Sanjay Kumar and appellant Rajendra Kahar. But I am of the opinion only that on this ground that the witnesses did not intervene in the quarrel or they did not try to rescue the deceased, their presence at the place of occurrence cannot be doubted because the manner of occurrence shows that the entire occurrence was finished in a very short time. But I am of the opinion only that on this ground that the witnesses did not intervene in the quarrel or they did not try to rescue the deceased, their presence at the place of occurrence cannot be doubted because the manner of occurrence shows that the entire occurrence was finished in a very short time. The evidence on record shows that on the point of realisation of higher price of Surf, some altercation took place between the deceased Sanjay Kumar and appellant Rajendra Kahar and so it was natural that none could have imagined that altercation would take a serious turn and that is why, during altercation not a single witness tried to intervene. The rest part of the occurrence happened so swiftly that there was no occasion for any other person to rescue the deceased as suddenly two persons caught hold of the deceased and appellant Rajendra Kahar gave a single Chhura blow to the deceased and thereafter all the three persons fled away from the place of the occurrence. Thus, the evidence on record shows that there was no opportunity for the prosecution witnesses to intervene in the quarrel or to rescue the deceased from doing the assault. I am, therefore, of the view that non-interference of the witnesses in the dispute which was going on between deceased Sanjay Kumar and appellant Rajendra Kahar is not sufficient proof to hold that at the time of the occurrence the witnesses were not present at the place of the occurrence and so, I reject the argument of the learned defence counsel in this regard. 19. It has further been argued that in this case there is abnormal delay in lodging the first information report for which no explanation has come from the side of the prosecution. The argument of the defence counsel was that although the alleged occurrence had taken place on 19.4.1998 at about 5.30 P.M. but the formal F.I.R. was drawn on 25.4.1998 which establishes that the first information report was antidated and the same was instituted after much deliberation and with false allegation and the sole purpose of institution of this case was to make out a defence of the case instituted by appellant Digree Kahar which was earlier in time bearing Chandi P.S. Case No. 39/98. The learned defence counsel further submitted that only on the ground of abnormal delay in lodging the F.I.R., the appellants should have been acquitted. It is true that there is abnormal delay of about six days in institution of this case at Chandi Police Station and it is also true that no satisfactory explanation has come on record from the side of the prosecution regarding this abnormal delay except that the informant and his other close relatives were running from Ara Hospital to PMCH for saving the life of deceased Sanjay but then there is no explanation as to why any other person did not lodge the F.I.R. when the police officer had visited the place of occurrence to investigate the case lodged by appellant Digree Kahar bearing Chandi P.S. Case No. 39/98. However, I am of the opinion that this delay in lodging the first information report is not fatal in his case as the F.I.R. of Chandi P.S. Case No. 39/ 98 itself establishes that on the alleged date and time, the occurrence of assault had taken place near the Gumatiot appellant Digree Kahar (which is the P.O. of this case) and when the police visited the place of occurrence for investigating the case lodged by appellant Digree Kahar the police recovered a blood-stained Chhura from the place of the occurrence vide Ext. 6. The injury reports of appellant Digree Kahar and his son Sunil Kumar (Exts. B and B/ 1, respectively) proved by D.W. 1 Dr. Ram Shankar Lal show that appellant Digree Kahar as well as his son Sunil Kumar had sustained injuries on their persons caused by hard blunt substance. The evidence of D.W. 1 as well as the F.I.R. of Chandi P.S. Case No. 39/98 do not show that there was any case of defence that appellant Digree Kahar as well as his son Sunil Kumar had sustained injuries by means of Chhura. On the other hand it is the specific case of the prosecution that the deceased Sanjay Kumar had sustained Chhura injuries on his neck on the alleged date of occurrence. On the other hand it is the specific case of the prosecution that the deceased Sanjay Kumar had sustained Chhura injuries on his neck on the alleged date of occurrence. So, the recovery of Chhura in connection with the case lodged by appellant Digree Kahar also establishes that on the alleged date of occurrence, Chhura was also used in doing assault and it is the specific case of the prosecution that appellant Rajendra Kahar had inflicted Chhura blow to the deceased which had resulted in his death. I am, therefore, of the opinion that this delay in lodging the F.I.R. from the side of the prosecution is not fatal to the prosecution case as the same has been explained by the F.I.R. of the counter case itself lodged by appellant Digree Kahar bearing Chandi P.S. Case No. 39/98. 20. it has further been argued that the learned trial court has not considered the case of the defence and without considering the case of the defence he has convicted the appellants. In this regard I have to say that as per the evidence of D.W. 1 Dr. Rama Shankar Lal, the injuries found on the persons of appellant Digree Kahar and Sunil Kumar were not grievous in nature and the same might be concocted as such, I am of the opinion that the learned trial court has rightly not given any weightage to the defence case. 21. Lastly it has been submitted that this case does not fall under Section 302 of the l.P.C. rather the case fails under Section 304 Part II of the l.P.C. The learned Advocate submitted that Section 299 of the l.P.C. defines culpable homicide whereas Section 300 of the l.P.C. defines murder but there are some exceptions according to which all the culpable homicide is not murder. To support his argument the learned defence counsel referred Exception 4 of Section 300 of the l.RC. which runs as follows: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. which runs as follows: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. Exception.It is immaterial in such cases which party offers the provocation or commits the first assault." The learned defence counsel submitted that the case of the appellants falls within the framework of Exception-4 of Section 300 of the l.P.C. He further submitted that the case of the prosecution is that on the point of charging excess price of Surf, an altercation took place between the deceased and appellant Rajendra Kahar. The altercation generated some heat of passion and suddenly, appellant Digree Kahar and Kaus Kahar caught hold of the deceased and appellant Rajendra Kahar gave a single Chhura blow to the deceased. He submitted that the fact of this case fully establishes that the offence was committed without premeditation in a sudden fight which took place in the heat of passion and so, the offence will not fall under Section 302 of the l.RC. rather the offence will fall under Section 304 Part II of the l.P.C. I am also of the view that the evidence on record suggests that on a flimsy matter of charging excess price of Surf, some altercation took place between the deceased and appellant Rajendra Kahar and as per the defence case vide F.I.R. of Chandi P.S. Case No. 39/98, some assault was done to the appellants from the side of the prosecution and during that scuffle/ assault, appellant Digree Kahar caught hold of the deceased and appellant Rajendra Kahar gave a single Chhura blow to the deceased. So, it is established that there was neither any premeditation nor there was any intention on the part of the appellants to commit murder of the deceased Sanjay Kumar. l am, therefore, of the view that the offence will fall under the category of Section 304 Part II of the l.P.C. and not under Section 302 of the l.P.C. 22 In such view of the matter, I am of the opinion that there is need of interfering in the judgment of the lower court to this extent that conviction of appellant Rajendra Kahar under Section 302 of the l.P.C. should be converted under Section 304 Part II of the l.RC. and the conviction of appellant Digree Kahar under Section 302/34 of the I.P.C. should be converted under Section 304 Part II read with Section 34 of the I.P.C. I am further of the opinion that ends of justice will be met by sentencing appellant Rajendra Kahar to undergo rigorous imprisonment for a period of eight years under Section 304 Part II of the l.P.C. and by sentencing appellant Digree Kahar to undergo rigorous imprisonment for a period of five years under Section 304 Part II read with Section 34 of the I.P.C. Accordingly, appellant Rajendra Kahar is convicted under Section 304 Part II of the I.P.C. and sentenced to undergo rigorous imprisonment for eight years under the said section and appellant Digree Kahar is convicted under Section 304 Part II read with Section 34 of the I.P.C. and sentenced to undergo R.l. for 5 years under the aforesaid section. 23. In the result, both these criminal appeals filed on behalf of the appellants are hereby dismissed with modification in the order of conviction and sentence as stated above. Appellant Digree Kahar is on bail. His bail bond is cancelled and he is directed to surrender before the lower court at once. Appellant Rajendra Kahar is in custody. He is ordered to serve out the remaining part of his sentence in jail. Shashank Kr.Singh, J. 24 I agrea