C.K. Prasad, J. – Both the appeals arise out of the common judgment dated 9th October, 2006 passed by the Division Bench of the Madhya Pradesh High Court in Criminal Appeal No. 946 of 1993 and Criminal Appeal No. 953 of 1993, hence, they were heard together and are being disposed of by this common Judgment.

2. Ramesh Kumar (appellant) in Criminal Appeal No. 186 of 2008) and Gopal Prasad (appellant in Criminal Appeal No. 185 of 2008), besides Pradhuman Prasad and Dwarika Prasad were put on trial for commission of the offence under Section 341/34 and 302/34 of the Indian Penal Code. All of them were found guilty on both counts by judgment dated 21st September, 1993 passed by the Additional Session Judge, Sidhi in Sessions Trial No. 17 of 1992. All of them were sentenced to undergo imprisonment for life and rigorous imprisonment for six months for the offence under Sections 302/34 and 341/34 of the Indian Penal Code respectively. Ramesh Kumar as well as Dwarika Prasad, Gopal Prasad and Pradhuman aggrieved by the judgment and order of conviction and sentence preferred appeals before the High Court which were registered as Criminal Appeal No. 946/1993 and Criminal Appeal No. 953/1946 respectively.

3. During the pendency of the appeal Dwarika Prasad died and his appeal had abated.

4. The High Court by the impugned Judgment had affirmed the appellants conviction and sentence. Conviction and sentence of Pradhuman Prasad, though has been maintained by the High Court but he has not chosen to file any appeal before this court, perhaps on the ground that he had already undergone the sentence awarded to him.

5. According to the prosecution, a litigation was going on between the accused Dwarika Prasad and PW.4 Chander Bhan Yadav, PW.6 Ram Sahai and other persons and on 29.11.1991 the informant Chander Bhan Yadav had gone to Civil Court, Sidhi to attend the hearing of the case along with Ramdhani (deceased) and PW.6 Ram Sahai. After attending the hearing of the case, according to the prosecution, while they were returning to their home and reached near Tola Parkhure in village Bihirya, all the four accused, which included the two appellants herein, who were hiding behind the tree came out and accused Dwarika pointed his gun on Ramdhani, whereas convict Pradhuman and appellant Ramesh assaulted him by “lathi” and “danda”. Appellant Gopal Prasad then attempted to beat Ram Sahai, who along with the informant ran away from the place of occurrence. Chander Bhan Yadav gave report to the Police and on the basis of that Crime No. 411 of 1991 was registered under Section 341/307/34 of the Indian Penal Code at Police Station Kotwali, Sidhi. The injured Ramdhani died later on and consequently offence under Section 302/34 of the Indian Penal Code was also added.

6. Police after usual investigation submitted chargesheet and ultimately the appellants were committed to Court of Sessions to face the trial. They were charged for wrongful confinement and murder of Ramdhani in furtherance of their common intention; punishable under Section 342/34 and 302/34 of the Indian Penal Code. Appellants denied to have committed any crime and claimed to be tried.

7. In order to bring home the charges, prosecution, altogether examined ten witnesses out of whom PW.4 Chander Bhan Yadav and PW.6 Ram Sahai claimed to be eye-witnesses to the occurrence. PW.7 Dr. S.P. Khare happens to be an Assistant surgeon and had conducted the postmortem examination on the dead body of the deceased Ramdhani. He had also proved the postmortem report. He had found the following external injuries on the person of the deceased:

(1) Contusion linear in shape 10x2 cm. reddish in colour present on the rt. Infra scapular region in axillary line obliquely placed;

(2) Contusion linear in shape 8x2 cm. reddish blue in colour present on left infra-scapular region in axillary line obliquely placed;

(3) Contusion linear in shape 10x2 cm. present over upper scapular region and reddish blue in colou