( 1 ) ALL the aforesaid three appeals arise out of one and the same judgment, therefore, they are being decided and disposed of by this common judgment.

( 2 ) THE appellants Babukhan and chhotekhan have filed Cri. Appeal No. 222/ 96 and they are also appellants Nos. 4 and 5 in Cri. Appeal No. 253/96. Therefore, this judgment shall also govern the disposal of both these appeals.

( 3 ) THE abovenamed six appellants stand convicted for the offences punishable under Sections 302, 302/149, 323/149 and 148 of the Indian Penal Code by the learned third Additional Sessions Judge, Ratlam in sessions Trial No. 97/94 on 6-3-94 who sentenced each of the appellants to suffer r. I. for two years under Section 148, Indian penal Code, Abidkhan, Babukhan, chhotekhan, Gullukhan, Muzaffar Dilwar to suffer imprisonment for life with fine of Rs. 2,00/- each, in default of payment whereof to further undergo R. I. for one year under sections 302 and 302/149, Indian Penal code and to suffer R. I. for six months under Section 323/149, Indian Penal Code. Being dissatisfied by the aforesaid judgment of conviction and sentence, the appellants have preferred these appeals.

( 4 ) INITIALLY, ten accused persons were tried, but the learned trial Court finding the aforesaid six appellants guilty convicted and sentenced them. However, the remaining four appellants i. e. Iqbal, Ayyub, Jamil and israt Hussain have been acquitted.

( 5 ) THE brief facts of the prosecution case as unfolded before the trial Court were that on 27-1-94 in the night at 10. 45 p. m. in pramilaganj Alote, PW-4 Omprakash alias guddu along with his brother deceased pappu was witnessing T. V. programme in their house and their mother was sitting outside the house. At that juncture, they heard the voice that Laxinarayan has been surrounded by some persons, on which, they rushed towards Pramilaganj square, Alote, and saw that Babu cyclewala having a country-made pistol in his hand along with Gullu, muzaffar, Abid and others had encircled laximinarayan. When Omprakash and pappu reached over there, Muzaffar and gullu inflicted blows on the head of omprakash and Abid and his companions inflicted knife-blows to Pappu. The remaining assailants were having lathi and Farsa with them. When Omprakash and Pappu fell down on the ground, a vehicle belonging to s. P. reached over there, seeing which, the assailants fled away from the scene of occurrence. It is said that there was a dispute pertaining to money transaction between laximinarayan and Muzaffar and the present incident is the outcome therof.

( 6 ) IN the said vehicle of Sub-Divisional officer (Police), Omprakash (PW-4) went to the Police Station and lodged the report (Ex. P/5) which was reduced into writing by PW-10 Satish Sharma, Station House Officer, alote on the basis of which Cr. No. 26/94 was registered and investigation ensued. Injured Omprakash (PW-4) and laximinarayan (PW-6) and Pappu were sent to the hospital where PW-9 Dr. B. L. Chaturvedi examined Laximinarayan and omprakash vide Ex. P/32 and P/30. Pappu was examined by Dr. Anil Palod vide Ex. D/ 5. On 28-1-94 Yeshwant was also medically examined vide Ex. P/31. PW-10 Satish sharma inspected the place of occurrence in the same night where he noted some blood. The spot-map is Ex. P/35. Since, injured Pappu was in a serious state, Tehsildar was requested to record his dying-declaration. However, Pappu breathed his last, therefore, his dying-declaration could not be recorded. On 28-1-94 Dr. B. L. Chaturvedi (PW-9) conducted autopsy on the dead body of Pappu and issued postmortem examination report Ex. P/29. The accused persons were arrested and weapons of offence were seized at their instance and after completing all formalities of investigation, they were charge-sheeted before the Court. The accused persons denied the charges and some of them took the plea of alibi.

( 7 ) TO prove its case, the prosecution examined as many as 11 witnesses while the accused persons exam