Mohammad Rafiq, J.

These two appeals are directed against judgment dated 05.01.2017 passed by the Court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Cases), Kota (Rajasthan) in Sessions Case No. 32/2008, whereby learned trial court convicted both accused appellants Nand Kishore @ Nand Behari and Devi Shanker for offence under Section 302 read with Section 34 of the Indian Penal Code and also under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. For offence under Section 302 read with Section 34 IPC, both the accused have been sentenced to suffer life imprisonment with fine of Rs. 20,000/- (Rupees Twenty Thousand) each; in default of payment of fine, they were ordered to further undergo one years' simple imprisonment, and for offence under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, they have been sentenced to undergo life imprisonment with fine of Rs. 10,000/- (Rupees ten thousand) each, in default of payment of fine, they were ordered to further undergo six months simple imprisonment. Both the sentences were ordered to run concurrently.

2. Facts of the case are that on 10.03.2008 at 5:50 PM one Heeralal Meena (PW-1), R/o Bambuliya, submitted a written report at Police Station Itawa, District Kota, alleging therein that when his son Murlidhar, after irrigating his agriculture land, was returning to his home at about 4:45 PM on the same day, Devi Shanker, Prahlad, Satyanarain, Lalchand, all sons of Bherulal Dhakad, and Nandji S/o Badrilal Kudwal, with their two servants, all residents of village Gainta, who were armed with 'kulhari', 'dharia', 'gandasi' and other sharp edged weapons, met him in front of shop of Siddique. They came there with the common object to kill Murlidhar and started abusing him for the reason that he got their illegal water pump seized. Devi Shanker had 'kulhari', Prahlad had 'kutiya', Satyanarain and Lalchand had 'gandasis' in their hands. They along-with other persons started beating him and were exhorting each other that he should be killed. His son Murlidhar Meena succumbed to the injuries on the spot. Shambhu Dayal (PW-7) S/o Mangilal Meena, R/o Bambuliya Kalan, who at that time happened to be in village Gainta for buying engine parts, and Lekhraj S/o Motilal Meena (PW-4), R/o Bambuliya, who had also gone to village Gainta on motorcycle of Shambhu Dayal, have witnessed this incident.

3. The police, on the basis of aforesaid written report, registered a regular First Information Report No. 43/2008 for offence under Sections 147, 148, 149 and 302 IPC, and commenced investigation. After completion of investigation, the police filed charge-sheet against the accused-appellants. Charges were framed against the accused-appellants for aforesaid offences. They denied the charges and claimed to be tried. The prosecution, in support of its case, examined 38 witnesses and exhibited 58 documents. Though the defence did not produce any witness but exhibited seven documents.

4. During the course of trial, the prosecution filed an application under section 319 of the Code of Criminal Procedure, 1973. The trial court, vide order dated 02.03.2015, allowed the said application and issued process against accused Prahlad, Satyanarain, Lalchand requiring them to face trial. They approached this court by filing S.B. Criminal Miscellaneous Petition No. 1358/2015. This court, vide order dated 30.03.2015, stayed the proceedings considering that the accused were in jail since 10.03.2008 and that petition is still pending. The trial court proceeded with the matter and finally decided the same by impugned judgment by convicting and sentencing the accused-appellants in the manner indicated above. Hence this appeal.

5. Mr. A.K. Gupta, learned counsel for accused-appellant Devi Shanker in Criminal Appeal No. 49/2017, argued that accused-appellant Devi Shanker has been illegally conv