JUDGMENT 1. Since both the aforementioned appeals arise out of the same judgment and order dated 19.12.1996 passed by Additional Sessions Judge, Ambikapur, Surguja in Sessions Trial No. 387/1994, they are being disposed of by this common judgment. By the judgment impugned, accused/appellants in both the aforesaid Criminal Appeals have been convicted under Sections 302/149 & 120-B, 325/149, 324/149, 323/149, 452 and 148 I.P.C. and each of them sentenced to undergo imprisonment for life u/s. 302/149 & 120-B, RI for 4 years u/s. 325/149, RI for 3 years u/s. 324/149, RI for 1 year u/s.323/149, RI for 7 years u/s. 452 and RI for 3 years u/s. 148 I.P.C. 2. Name of the deceased in the present case is Ram Roop. According to the case of prosecution, there was a land dispute between Ram Avtar (PW-4) and accused/appellants Rampal, Gopal Ram and Rambriksha. On 24.7.1994 the deceased was called by the villagers to attend the village meeting in the house of accused Ram Sundar and when he along with other persons was on the way to the house of Ram Sundar, they were assaulted by the accused persons and to save themselves the deceased and other injured persons ran away from the spot. While running away, they were chased by the accused persons and it is alleged that in his house the deceased was again assaulted by the accused persons as a result of which he died. F.I.R. Ex. P-16 was lodged by Jitni Bai (PW-2) - wife of the deceased on 25.7.1994 for the offences sections 147, 148, 149, 341, 307 and 302 I.P.C. Postmortem examination on the body of the deceased was conducted on 26.7.1994 by Dr. Irnus Khalko (PW-13) who gave his report Ex. P-32-A stating that he noticed 10 injuries on his body and the cause of death was coma due to head injury and the death Was homicidal in nature. After completion of investigation, charge-sheet was filed against 13 accused persons under sections 147, 148, 149, 341, 307 and 302, 450, 325 and 120-BI.P.C. 3. In support of its case the prosecution has examined 14 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. In support of its case the prosecution has examined 14 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused persons as mentioned in paragraph No. 1 of the judgment. 5. Record goes to show that accused/appellants Gopal Ram and Rambriksha have died during the pendency of this appeal. Accordingly, the appeal as far as it relates to them, stands abated. 6. Heard counsel for the parties and perused the material available on record. 7. Counsel for the accused/appellants supports the judgment impugned and submit as under: (i) That, though the name of accused/appellant Ram Sundar (in Criminal Appeal No. 2322/1996) figures in the statements of the witnesses wherein it is stated that a meeting was called in his house but there is no allegation against him for taking part in the marpeet in any manner. None of the witnesses has deposed anything against this accused and in fact present is a case of no evidence in respect of him. (ii) That the names of accused/appellants (in Criminal Appeal No. 152/1997) have been mentioned in the F.I.R. on account of previous land dispute. (iii) That while lodging the F.I.R., Jitni Bai (PW-2) has also disclosed the names of number of other villagers with whom she was having inimical relations but they have not been arrayed as accused whereas the present appellants have wrongly been dragged in this case. (iv) That as there are material contradictions and omissions in the statements of Jitni Bai (PW-2), Vinod (PW-3), Ram Avtar (PW-4), Parvtia (PW-5), Lal Sai (PW-6) and Laxman (PW-7), they lose reliability and are not enough to be made a basis for conviction. (v) That identity of accused/appellants is also disputed as according to the case of the prosecution the incident occurred at 9 P.M. and according to some of the witnesses the accused persons had covered their faces and it was not possible for them to identify the accused persons as even test identification parade was not conducted by the prosecution. (v) That identity of accused/appellants is also disputed as according to the case of the prosecution the incident occurred at 9 P.M. and according to some of the witnesses the accused persons had covered their faces and it was not possible for them to identify the accused persons as even test identification parade was not conducted by the prosecution. (vi) That there was no intention on the part of the accused persons to commit murder of the deceased and therefore at best it can be said that there was simply an intention to cause injuries to him but unfortunately he succumbed to the same. Counsel for the accused/appellants in Cr. A. No. 152/1997 submits that even if the entire evidence of the witnesses is taken as it is, the accused/appellants cannot be convicted under Section 302/149 and at the most their act would come within the ambit of Section 302 (Part-II) I.P.C. He further submits that accused/appellants Rampal, Shyamlal, Dukhan alias Bhulan, Surajdev, Amrik alias Amrika and Amrit have already remained in jail for 7 years and 11 months whereas accused/appellants Samrath, Mudrika, Dwarika and Charku have remained inside for 8 years and 10 months, they may be sentenced to the period already undergone by them. 8. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below are strictly in accordance with law and there is no in F.I.R. mity in the same. 9. Bandhuram (PW-1) is the witness to inquest notice Ex. P-1, inquest Ex. P-2, seizure of plain and blood stained earth and lathi made under Ex. P-3, P-4, P-5 and P-15 respectively who has not supported the case of the prosecution but has admitted his signatures thereon. Jitni Bai (PW-2) - wife of the deceased and injured eyewitness to the incident is the lodger of the F.I.R. Ex. P-16. This witness has stated that on the date of incident village Kotwar Haricharan came to her house and informed her that a meeting was called by Ram Sundar and her husband was asked to attending the said meeting. When her husband accompanied Haricharan and several other persons, on the way they were beaten by the accused persons. She has stated that accused Rampal was carrying axe and Gopal, Mudrika, Dwarika, Jhulan, Amrika, Rambriksha, Shyamlal, Charku, Samrath and Amrit were carrying lathi. When her husband accompanied Haricharan and several other persons, on the way they were beaten by the accused persons. She has stated that accused Rampal was carrying axe and Gopal, Mudrika, Dwarika, Jhulan, Amrika, Rambriksha, Shyamlal, Charku, Samrath and Amrit were carrying lathi. While the accused/appellants were assaulting her husband, he somehow came to the house but the accused/appellants followed and assaulted him in the house as well. In cross-examination, she has stated that there was some land dispute between her family and father of accused/appellant Rampal. She has admitted that on account of land dispute she had disclosed the names of six persons in the F.I.R. Ex. P-16. She has further admitted that on account of land dispute she had disclosed the names of accused Rampal, Gopal Ram, Jhulan, Rambriksha, Charku, Amrika and Samrath. There appear to be some contradictions and omissions in the statement of this witness. Vinod (PW-3) - son of the deceased and injured eyewitness Jitni Bai (PW-2) while supporting the case of the prosecution has stated that his father was beaten by the accused/appellants. He has named all the accused persons except Shyamlal and Rambriksha. According to him, he was given a lathi blow on his waist and the accused/appellants namely Rampal, Gopal Ram, Surajdev and Mudrika had assaulted his father. He has stated that after sustaining injury, he ran away from the place of incident. In paragraph No. 11 he has stated that he could not identify the persons who had assaulted him and his father. Ram Avtar (PW-4) - elder brother of the deceased and injured eyewitness to the incident has also named the accused persons saying that they assaulted the deceased. He has further stated that the persons who had assaulted him and the deceased were hiding themselves behind the Mahua tree and had covered their faces with scarf. According to this witness, he has not implicated anyone in a false case on account of land dispute. Parbatia (PW-5) - wife of Lalsai (PW-6) and one of the injured eyewitnesses to the incident has stated that she was assaulted by accused Dwarika and Mudrika. She has further stated that the incident had occurred inside her house. According to this witness, he has not implicated anyone in a false case on account of land dispute. Parbatia (PW-5) - wife of Lalsai (PW-6) and one of the injured eyewitnesses to the incident has stated that she was assaulted by accused Dwarika and Mudrika. She has further stated that the incident had occurred inside her house. Lal Sai (PW-6) - nephew of the deceased and one of the injured eyewitnesses to the incident has stated in paragraph No. 3 of his statement that except accused Surajdev and Ramsundar, all other accused persons had assaulted him and the deceased. He has stated that after sustaining injury he left the spot. Laxman (PW-7) - another injured eyewitness to the incident has named all the accused persons except Ramsundar, and described the manner in which he and the deceased were beaten by them. Dr. Sanjay Kumar Tripathi (PW-8) is the witness who conducted MLC of Vinod (PW-3), Ram Avtar (PW-4), Lal Sai (PW-6), Rukbada (not examined), Phulmati (not examined), Mangri (not examined), Parbatia (PW-5) and described the injuries noticed by him. Haricharan (PW-9) has not supported the case of the prosecution and has been declared hostile. Dubraj Rajwade (PW-10) is the Patwari who prepared spot map Ex. P-28. Rakesh Pratap Singh (PW-11) is the investigating officer who has duly supported the case of the prosecution. Dr. Mukesh Kumar Jain (PW-12) is the witness who took x-ray of Laxman (PW-7) and noticed fracture of his left index finger. Dr. Irnus Khalko (PW-13) is the witness who conducted postmortem examination on the body of the deceased and gave his report Ex. P-32-A. He also conducted MLC of injured Laxman (PW-7) and Jitni Bai (PW-2) vide Ex. P-34-A and 35-A. According to this witness, he noticed following injuries on the body of the deceased: (i) Abrasion on middle 1/3 of left clavicle (3 c.m.) transverse in direction. (ii) Multiple abrasion on left dorsal aspect of left elbow (5 in number), radical side, 4 x 4 c.m. (iii) Skin deep abrasion over radical side, 5 c.m. above the styloid process of left upper limb, linear, longitudinal direction 3 c.m. in. (iv) 4 x 3 c.m. irregular in shape over right shoulder joint, (v) Abrasion on back of chest left side over the scapular region 5 x 3 c.m. transverse, lower end. (iv) 4 x 3 c.m. irregular in shape over right shoulder joint, (v) Abrasion on back of chest left side over the scapular region 5 x 3 c.m. transverse, lower end. (vi) Abrasion over right hand (1) over lateral (6) epicondyle 1 x 1 c.m. (2) medial aspect (ulnar side) (vii) Lateral side of upper 1/3 of right tibia linear 3 x 1 c.m. longitudinal. (viii) Lacerated wound over 5 c.m. below medial to the lateral mellolus size 1 c.m. linear, oblique in direction (upper end medially upward, lower end laterally downwards. (ix) Complete fracture of radius just above the styloid process, clotted blood found on opening the wound. (x) Lacerated injury over skull in parietal region (1) linear direction as shown in figure, 5 c.m. bone deep (2) 5 c.m. linear, bony deep as shown in figure on dissection. Cause of death, according to this witness, was coma due to head injury. He has stated that the head injury was sufficient to cause death in the ordinary course of nature. In paragraph No. 22 of his statement, this witness has admitted that he could not tell with certainty that injuries No. 8, 9 and 10 were caused by which lathi as number of lathis were produced before him for examination. He has stated that injuries No. 1 to 9 could not lead to the death of the deceased. He has further admitted that in the postmortem report Ex. P-32-A he had not mentioned the fact that injury No. 10 was sufficient to cause death in the ordinary course of nature though it was necessary to be written. He however has assigned the reason therefor saying that as in the postmortem report the head injury was shown to be sufficient to cause death, he did not mention injury No. 10 separately to be fatal for life. This witness has further stated that had the injury of head been treated promptly in a good hospital, the deceased may not have died. Abhay Nandan Choubey (PW-14) is the witness who assisted in the investigation. 10. Facts exposited and evidence adduced by the prosecution make it clear that on 24.7.1994 the deceased was called to attend the Panchayat meeting in the house of accused/appellant Ramsundar and while he along with other persons were on the way to his house, they were beaten by the accused persons excluding accused Ramsundar. 10. Facts exposited and evidence adduced by the prosecution make it clear that on 24.7.1994 the deceased was called to attend the Panchayat meeting in the house of accused/appellant Ramsundar and while he along with other persons were on the way to his house, they were beaten by the accused persons excluding accused Ramsundar. Apart from the deceased, Jitni Bai (PW-2), Vinod (PW-3), Ram Avtar (PW-4), Parbatia (PW-5), Lal Sai (PW-6) and Laxman (PW-7) also suffered injuries but the injuries suffered by the deceased unfortunately proved to be fatal leading to his death. Considering the evidence of the injured eyewitnesses and the injuries suffered by them, this Court is of the considered opinion that conviction of accused/appellants except Ramsundar under Sections 323/149, 324/149, 325/149, 452 and 148I.P.C. is just and proper and it is accordingly maintained. 11. Further, considering the evidence of the eyewitnesses to the incident and the injuries suffered by the deceased as detailed in postmortem report Ex. P-32-A, it is apparent that the death of the deceased was as a result of the injuries inflicted to him in the incident which took place on 24.7.1994. 12. Next question to be considered now by this Court is whether in the light of evidence collected by the prosecution conviction of accused/appellants except Ramsundar is justified or not? There is no specific evidence on record to show as to who caused injury No. 10 which proved to be fatal and led to the death of the deceased. Though in the Court the autopsy surgeon has stated that injury No. 10 was sufficient to cause death in the ordinary course of nature, at the same time he has admitted that this fact could not be mentioned in the postmortem report which of course was required to be there. Autopsy surgeon has further stated that had the deceased been treated promptly in a good hospital, he may not have died. Further, considering the fact that though according to the autopsy surgeon deceased died on account of head injury but if the nature of that injury is seen, there was no fracture on the head and merely the haematoma was present. Further, considering the fact that though according to the autopsy surgeon deceased died on account of head injury but if the nature of that injury is seen, there was no fracture on the head and merely the haematoma was present. Thus in the absence of any material showing as to by whom the injury No. 10 which ultimately proved to be fatal was caused and further taking into consideration the overall evidences of the autopsy surgeon, apt of the accused/appellants does not fall under Section 302, rather it attracts the ingredients of section 304 (Part-II) I.P.C. Accused/appellant Ramsundar however skips the rigor of this section also. 13. Summing up, Criminal Appeal No. 2322/1996 is allowed. Accused/appellant Ramsundar Dhobi is hereby acquitted of all the charges levelled against him. As he is already on bail, his bail bonds shall continue for a period of six months from today in view of Section 437-A Cr. P.C. Criminal Appeal No. 152/1997 is however allowed in part. Their conviction under Sections 323/149, 324/149, 325/149, 452 and 148 I.P.C., as already said, is maintained. However, in stead of 302/149, they are convicted under Section 304 (Part-II) read with 149 I.P.C. As regards sentence, it is reported that accused/appellants Rampal, Shyamlal, Dukhan alias Bhulan, Surajdev, Amrik alias Amrika and Amrit have already remained in jail for 7 years and 11 months whereas accused/appellants Samrath, Mudrika, Dwarika and Charku have remained inside for 8 years and 10 months and that being so it appears in the interest of justice if they are sentenced to the period already undergone by them. Order accordingly. The accused/appellants in this appeal are also on bail and their bail bonds shall continue for a period of six months from today in view of Section 437-A Cr. P.C.