V.P.MATHUR, J. - (1.) THE appellants are real brothers. Mr. M. P. Tripathi, the then III Additional Sessions Judge, Deoria, tried them for an offence punishable under Section 302 read with Section 34, I.P.C. and vide his judge­ment in Session Trial No. 22 of 1978, dated 18-9-78 he found both of them guilty and returned their convicted and sentenced them to imprisoment for life. Against this order the present appeal has been filed.
(2.) A small pedigree which is not disputed may be noted down here : Total Biran Amruddin (deceased) Samrao Trilochan Deoraj (Informant) Jatan = Smt. Kasidani (wife) The deceased of this case is Amruddin, son of Biran, and the first in­formant is Deoraj, son of Samroo, a cousion brother of Amruddin, Shahabjan and Ramjan the two appellants, are brothers of Kasidani, wife of Jatan. The evidence shows that Smt. Kasidani had deserted Jatan and was living separate from him. In any view of the matter, she is a cousin brother's wife of the Amruddin and real brother's wife of Deoraj. The occurrence took place on 9-12-74 at 4.00 p.m. in village Parsani Buzurg within police station Tarysujan of District Deoria lodged the first information report 6 miles away in the Thana Taryajujan the same day at 6.45 p. m. He had got it scribed from one Inder Prasad of the village.
(3.) THE prosecution story is that the agricultural plot of deceased Amrud­din adjoined the plot of Smt. Kasidani on 9-12-74 at about 4.00 p.m. Smt. Kasidani had broken the boundary wall between the two plots and with a view to encroach upon a part of the land of Amruddin was breaking the earth (Dhelas) when Amruddin came therewith a bundle of Mounzh on his head from the southern side. He saw what Smt. Kasidani was doing and raised an objection. There was an exchange of heated and abusive words between them. Smt. Kasidani raised alarm which brought at the place of occurrence her brothers Ramzan and Shahabjan, the former with a spear and the latter with a lathi. The cries attracted Deoraj. Jaddu, Gagan and Lal Bahadur from the thrashing floor of Inder Prasad Sahu, about 40 steps away from the place of occurrence. They also rushed to prevent any untoward incident but before they could reach to save the situation, the two appellants had already reached there and had started assaulting Amruddin with their weapons, as a result of which he fell mortally in the field and the two appellants ran away from the spot. The witnesses brought Amruddin from the place of place of occurrence to the thrashing floor of Inder Prasad Sahu but he succumbed to his injuries there, before any medical assistance could be rendered. Then Deoraj got the first information report (Ext. Ka-3) scribed by Inder Prasad, thumb marked it, and proceeded to the Thana where he lodged it. A case was registered and Sri Komal Misra, the then Station Officer of the Thana, started the investiga­tion. He conducted the inquest on the deadbody and arranged to send it to the Mortuary for postmortem examination.;