S.B.DESHMUKH, J.

1. The appellants, who have been convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code, in Sessions Case No. 101/2003, directing them to suffer imprisonment for life, are in appeal before this Court under Section 374(2) of the Code of Criminal Procedure.

2. This appeal was before this Court on July 20, 2005. After hearing the counsel for the appellants, the appeal was admitted by this Court and record and proceedings was called. Two appellants, after conviction and sentenced by the learned trial Court, were lodged in jail. Their communication addressed to this court was registered as Criminal Appeal No. 414/2005. The appeal filed on behalf of these two appellants through advocate was already registered as Criminal Appeal No. 366/2005. In this view of the matter, Criminal Appeal No. 414/2005, registered on the basis of the communication from the appellants who were in jail at the relevant time, came to be dismissed as infructuous. This order was passed by the Division Bench of this Court on August 18, 2005. By the said order this Court had directed to keep Criminal Appeal No. 414/2005 (decided) along with the present Criminal Appeal for future reference and this is how the present Criminal Appeal No. 366/2005 was listed for hearing before this Court.

3. At the outset, the learned counsel Mr. Badar, appearing for the appellants, on instructions, made a statement that the appellant no.2 – Fulsing Akaram Solanke, who was 65 years old on the date of filing of the appeal, expired during the pendency of the appeal in jail. His statement, has not been disputed by the learned APP present before the Court that appellant no.2 Fulsing Akaram Solanke has expired. In view of this circumstance, the present appeal, in relation to appellant no.2 Fulsing Akaram Solanke, stands abated.

4. We have, however, proceeded to hear the learned counsel Mr. N.A.Badar for appellant no.1 and APP for the respondent State.

5. The prosecution story, in brief, may be stated thus;

Both the appellants and deceased Shrikrishna and complainant Balu are cousin brothers. Six months prior to the incident, wife of deceased Shrikrishna viz. Indira had eloped with the son of appellant no.1 Mr. Ramchandra Solanke. This was the cause of enmity amongst deceased Shrikrishna on one side and both the appellants on the other hand. On 5th March, 2003, in the night time, Shrikrishna after consuming liquor started abusing the appellant in filthy language. This annoyed the appellants and, therefore, both of them along with one Dnyaneshwar came out armed with sticks and knife and inflicted blows on Shrikrishna. Shrikrishna was taken to the hospital and was declared dead by the Medical Officer concerned. Both the appellants were arrested. Balu Motiram Solunke, lodged oral report to the Police Station, Walgaon. It was reduced into writing by one A.P.I., K.M.Meshram. Based on the report (Exh.37), Crime No. 42/2003 under section 307 read with section 34 of the Indian Penal Code was registered. Thus, the criminal law was set in motion. P.W.6 API, Meshram went to the General Hospital, Amravati since deceased Shrikrishna was admitted there. On the next date i.e. on 6th March, 2003 API, Meshram (P.W.6) recorded the scene of offence panchanma (Exh.61) in presence of two pancha witnesses. Amongst these two panch witnesses, P.W.5 Mr. Ramdas s/o Jairam Malwe has been examined on behalf of the prosecution. A.P.I., Meshram (P.W.6) has also held inquest panchanama (Exh.62). Under this inquest panchanama (Exh.62) from the place of incident sample of blood stained earth, plain earth, pieces of bangles were attached under seizure memo (Exh.67) in presence of the panch witnesses. The appellants i.e. both the accused persons were arrested. According to P.W.6 API, Meshram, appellant no.1 Ramchandra made a disclosure statement and showed his willingness to produce sword stick – the weapon allegedly used in commission of crime. Such stateme