B. P. DHARMADHIKARI, J.

In these appeals filed under Section 374 of the Code of Criminal Procedure, accused Nos. 1 & 2 in Sessions Trial No. 79 of 2005 question the judgment dated 31.03.2007. The Adhoc Additional Sessions Judge, Gondia, has found both the accused guilty of offence under Section 302 read with Section 34 of Indian Penal Code for committing murder of one Shivchand Patle and sentenced them to suffer imprisonment for life and to pay fine of Rs.3,000/-, in default to undergo Rigorous Imprisonment for six months. Accused No. 1 - Pyarelal is further convicted under Section 307 of I.P.C. for attack on P.W.1 - Mulchand and sentenced him to suffer R.I. for five years, to pay fine of Rs.2,000/-, in default to undergo R.I. for four months. Sentences of accused No. 1 are to run concurrently. Accused No. I - Pyarelal s/o Mangasu Tumsare, is appellant in Criminal Appeal No.478 of 2011 while accused No.2 Shyama Tukaram Sahare, is appellant in Criminal Appeal No. 362 of 2007.

2. We have heard Shri Daga, learned counsel for the appellant - Shyama and Shri Joshi, learned counsel for the appellant-Pyarelal and Shri Patel, learned APP for the respondent, in both the appeals.

3. The date of incident is 11.10.2005. The prosecution alleges that on that date, deceased - Shivchand and his cousin brother/victim/complainant/P.W.1 - Mulchand had gone to their fields and then they proceeded to water tank to verify whether water was flowing through channel to their respective fields. They found the channel blocked/closed. Accused No.1 - Pyarelal and Accused No.2-Shyama, who also own their fields in the vicinity and take water from the very same tank, arrived there. Pyarelal was having Sabbal while Shyama was having Khatawa. The deceased asked both the accused as to why they closed the water supply. There was quarrel between the deceased Shivchand, Mulchand on one side and both the accused on other side. Pyarelal delivered two blows of Sabbal which struck on left hand and head of P.W.1 - Mulchand. He fell down in the water tank. Both accused then rushed towards the deceased - Shivchand and delivered number of blows with weapons on him. Shivchand also fell down on the bank and both the accused then left the place of occurrence. Mulchand then rushed to village, communicated the assault to P.W.2 - Bharat and P.W.5 - Shivani Kumar Kulsinge. He requested all of them to accompany him to the spot to verify whether Shivchand was alive or not. They all found Shivchand dead. They, then, proceeded to his house and narrated incident to the family members. Shivchand's relatives then approached Police Station at Tirora. P.W.1 - Mulchand lodged an oral report (Exh. 18). P.W.9 - Police Inspector registered offence under Sections 302, 307 read with Section 34 of I.P.C. by issuing First Information Report (Exh. 19). After completing investigation, charge sheet was presented. The prosecution alleges that Khatawa used as weapon by accused No.2 - Shyama was found lying near dead body while Sabbal was recovered under Section 27 of the Evidence Act, from accused No. 1 - Pyarelal.

4. Shri Daga, learned counsel, has in this background submitted that when Section 34 of I.P.C. could not be used to connect Shyama with assault on Mulchand and Shyama has been acquitted of that charge, by the very same logic that section could not have been invoked in respect of alleged attack on the deceased Shivchand. He contends that Shyama, therefore, needed to be acquitted for said offence. He further submits that P.W.2 and P.W.5 have turned hostile. Their evidence show that Mulchand came to them and informed that Shivchand had vanished and sought their help to trace him out. He submits that this is consistent with the fact that on 11.10.2005 i.e. in winter in the night at about 7.00 P.M. to 7.30 P.M., the attack has been alleged and in the absence of light, P.W.1 - Mulchand could not see Shivchand. As he could not see Shivchand, he also could not see any of the persons attacking