Y. R. MEENA, J.

( 1 ) THESE appeals are directed against the judgment of learned Sessions Judge, District Jaipur, whereby he has convicted Ram Chandra for the offence under Section 302 IPC and other accused persons Ranjit Ram, Rameshwar and Jagdish under Section 302 read with Section 341 IPC and sentenced each of them to undergo life imprisonment and also pay fine of Rs. 500/- each, in default of payment of fine to further undergo three months rigorous imprisonment. They were also convicted for the offence under Section 449 IPC and sentenced to undergo ten years rigorous imprisonment.

( 2 ) SINCE both these appeals are arising out of the same judgment for same offence, we dispose of them by this common judgment.

( 3 ) THE brief facts giving rise to these appeals are that on 8. 8. 1985 at about 7. 30 p. m. Nanu Lal (PW 1) lodged a written report Ex. P. 1 in Police Station, Shahpura alleging therein that at about 6. 00 p. m. when he was going from Bagawas village to his well he heard cry from the house of Madan (deceased) therefore, he went running towards the house of Madan and saw that Ram Chandra Sb Bhola Ram, Jagdish Sb Choona Ram, Rameshwar Sb Choona Ram and Ranjit Sb Laxman armed with sword and farsis, were beating Madan (deceased ). When he reached there, Prabhu, Bhanwar and some other persons also came on the spot. The wife of Madan (deceased) PW 6 Gulab was already present in the house and she tried to save her husband. While the wife of Madan tried to save him, they gave beating to her also. It is also alleged that there was previous enmity between the accused and Madan, as Madan has committed murder of son of Ram Chandra accused. When informant tried to save, they threatened him also and then they ran away. On the basis of this report FIR was lodged in Police Station Shahpura and during investigation the post-mortem of deceased Madan was got conducted. Site plan was prepared. Blood stained soil was taken from the spot. Accused appellants were arrested and at their instance sword and farsis were recovered. After investigation challan has been filed and charges were framed against the accused-appellants. Accused-appellants have denied the charges and claimed for trial.

( 4 ) DURING trial prosecution has examined as many as 11 witnesses. The statements of accused- appellants were recorded under. Section 313 Cr. P. C and in defence statements of (DW 1) Hardwari Lal and (DW 2) Satya Narain Sharma have been recorded. After considering the material on record the trial Court came to the conclusion these accused-appellants have committed the murder of deceased Madan. The specific cause of death is asphyxia due to strangulation associated with the injuries over the body of deceased and the overt act of strangulation has been attributed to Ram Chandra. On the basis of material on record the trial Court has convicted and sentenced the accused-appellants as aforesaid. Being dissatisfied with the judgment of the trial Court, the accused-appellants preferred these appeals.

( 5 ) HEARD learned counsel for the accused-appellants Shri Bajwa, learned P. P. Shri Paker Farooq and Sarv Shri Wali and Garg for the complainant. Accused-appellant Ram Chandra has expired in jail. Therefore, his appeal stands abated. Now it has to be considered whether Rameshwar, Jagdish and Ranjit can be convicted for offence under Section 302 read with Section 34 IPC on the basis of the material on record. The submission of Shri Bajwa, learned counsel for the accused-appellants that in the written report the allegation was that the accused-appellants were armed with sword and farsis and were giving blows by these weapons to deceased, but in court they have improved their version and have given inconsistent statements to the extent that Ram Chandra was sitting on the chest of deceased and was pressing the neck of the deceased and other three co-accused were giving farsi blows from back side. Not only some mud was found on the face of the deceased,