JUDGMENT : T.P. Sharma, J. 1. Criminal Appeal Nos. 357, 366, 627, 470 and 471 of 2008 filed by the appellants against the common judgment dated 27.2.2008 passed by the 7th Additional Sessions Judge, Raipur, in S.T. No. 373/2006 are being disposed of by this common judgment. By filing aforesaid criminal appeals the appellants have challenged the legality and propriety of the judgment of conviction and order of sentence dated 27.2.2008 passed by the 7th Additional Sessions Judge, Raipur, in S.T. No. 373/2006, whereby & whereunder after holding the appellants guilty for committing house trespass in order to commit murder after formation of unlawful assembly having its common object to commit murder of Tulsiram and attempt to commit murder of Gangaram, Smt. Shyambai & Ramlal and in furtherance of common object of unlawful assembly for attempt to commit murder of Gangaram & Ramlal and committing murder of Tulsiram convicted them under Sections 147,450, 302/149 and 307/149 of the I.P.C. and sentenced to undergo R.I. for six months, R.I. for five years & fine of Rs. 100/-, in default of payment of fine to further undergo R.I. for one month, imprisonment for life and fine of Rs. 200/-, in default of payment of fine to further undergo R.I. for three months and R.I. for ten years & fine of Rs. 200/-, in default of payment of fine to further R.I. for three months. 2. Judgment is impugned on the ground that without there being any iota of evidence the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. Appellant No. 2 Tibhudas of Cr. A. No. 627 of 2008 has died in jail on 25.3.2009 and appellant No. 1 Sumeri Bramhe of Cr. A. No. 471 of 2008 has died in jail on 21.10.2011, therefore, appeal filed on their behalf stand abated. 4. No any appeal has been filed on behalf of accused Khel. 5. As per case of the prosecution, on 2.6.2006 at about 11.30 a.m. the appellants have formed unlawful assembly and assaulted Ramlal (PW-5) in his house, thereafter they assaulted Gangaram (PW-7), then they rushed towards the house of Tulsiram, they entered into the house of Tulsiram, eye side of Tulsiram was weak, he was staying in his house, Radheshyam, Shatrughan and Neelkanth were working upon roof, they assaulted Tulsiram in his house and caused his instantaneous death. Punoutinbai (PW-1), wife of deceased Tulsiram, has lodged dehati nalishi Ex. D/2 (first Ex. D/2). Dehati merg was recorded vide Ex. P/68 and finally merg was recorded vide. Ex. P/63 and F.I.R. vide Ex. P/62. Investigating officer left for scene of occurrence and after summoning the witnesses vide Ex. P/2 prepared inquest over the body of deceased Tulsiram vide Ex. P/1. Injured Gangaram was sent for medical examination. Dr. Sulbha Ahluwalia (PW-21) examined him vide Ex. P/64 and found following injuries and symptoms:-- (i) General condition poor, he was gasping, pulse feasible, blood pressure 100/70. (ii) Lacerated wound of 4" x 2" x bony deep and suspected fracture skull bone. (iii) Lacerated wound with open fracture tibia and fibula of right leg. (iv) Bleeding from right ear. (v) Lacerated wound with fracture of wrist (suspected) joint. Immediate blood transfusion given to him and referred to Medical College, Raipur. She also examined Ramlal vide Ex. P/66 and found following injuries:-- (i) Lacerated wound of 4" x. 2" over the head. (ii) Abrasion of 1/2" x 1/2" over left index finger. (iii) Contusion over right elbow joint of 2" x 2" with swelling over left forearm. (iv) Contusion over right thigh of 1 feet x 1/2" She was also examined injured Smt. Shyam Bai vide Ex. P/67 and found following injuries:-- (i) Contusion over left cheek of 4" x 3". (ii) Contusion over upper jaw. (iii) Clotted blood present over both nostrils. (iv) Swelling over right elbow joint. She was advised for x-ray. Dead body of deceased Tulsiram was sent for autopsy to Government Hospital, Tilda vide Ex. P/69. Dr. R.S. Thakur (PW-15) conducted autopsy vide Ex. P/53 and found following injuries:-- (i) Incised wound over neck of 3 1/2" x 1 1/2" x 1/2" (ii) Cutting of external carotid artery and jugular veins. (iii) Cutting injury over trachea. (iv) Incised wound over left side of neck just below ear of 2" x 1" x 1/2". (v) Incised wound over left side of neck of 2 1/2" x 1 1/2" x 1/2". (vi) Incised wound over right side of the neck of 3" x 1" x 1/2". (vii) Incised wound over back side of neck of 2" x 1/2" x 1/2". (viii) Incised wound over back side of head of 2" x 1" x bone deep. (ix) Fracture skull of occipital bone. (vi) Incised wound over right side of the neck of 3" x 1" x 1/2". (vii) Incised wound over back side of neck of 2" x 1/2" x 1/2". (viii) Incised wound over back side of head of 2" x 1" x bone deep. (ix) Fracture skull of occipital bone. Cause of death was shock and death was homicidal in nature. Spot map was prepared by investigating officer vide Ex. P/71. Patwari also prepared spot map vide Exs. P/56, P/57, P/58 and P/74. During the course of investigation, appellant Seva Ram was taken into custody, he made disclosure statement of stick vide Ex. P/3 and same was recovered from his instance vide Ex. P/4. Appellant Tibhudas made disclosure statement of chatwar vide Ex. P/5 and same was recovered at his instance vide Ex. P/6. Appellant Percent Kumar @ Jugu made disclosure statement of lathi vide Ex. P/7 and same was recovered at his instance vide Ex. P/8. Appellant Shivprasad @ Jaklu made disclosure statement of lathi vide Ex. P/9 and same was recovered at his instance vide Ex. P/10. Appellant Mahesh Kumar @ Mahavir made disclosure statement of stick vide Ex. P/11 and same was recovered at his instance vide Ex. P/12. Appellant Kumar Brahme made disclosure statement of stick vide Ex. P/13 and same was recovered at his instance vide Ex. P/14. Appellant Lakhan Brahme made disclosure statement of stick vide Ex. P/15 and same was recovered at his instance vide Ex. P/16. Appellant Loknath made disclosure statement of stick vide Ex. P/17 and same was recovered at his instance vide Ex. P/18. Appellant Bhuwan Brahme made disclosure statement of stick vide Ex. P/19 and same was recovered at his instance vide Ex. P/20. Appellant Binju Brahme made disclosure statement of stick vide Ex. P21 and same was recovered at his instance vide Ex. P/22. Appellant Kamdev Brahme made disclosure statement of stick vide Ex. P/23 and same was recovered at his instance vide Ex. P/24. Appellant Raju Gaikwad made disclosure statement of stick vide Ex. P/25 and same was recovered at his instance vide Ex. P/26. Appellant Tika Ram made disclosure statement of stick vide Ex. P/27 and same was recovered at his instance vide Ex. P/28. Appellant Radheshyam @ Konda made disclosure statement of stick vide Ex. P/29 and same was recovered at his instance vide Ex. P/30. P/25 and same was recovered at his instance vide Ex. P/26. Appellant Tika Ram made disclosure statement of stick vide Ex. P/27 and same was recovered at his instance vide Ex. P/28. Appellant Radheshyam @ Konda made disclosure statement of stick vide Ex. P/29 and same was recovered at his instance vide Ex. P/30. Appellant Dau Lal made disclosure statement of stick vide Ex. P/31 and same was recovered at his instance vide Ex. P/32. Bloodstained and plain soil were recovered from the spot vide Exs.P/33 and P/34. Bloodstained pillow has been recovered from the spot vide Ex. P/35. Sealed cloths of deceased Tulsiram were seized vide Ex. P/36. Deceased appellant Sumeri Brahme made disclosure statement of axe vide Ex. P/37 and same was recovered at his instance vide Ex. P/38. Appellant Sahadeo made disclosure statement of battle axe vide Ex. P/39 and same was recovered at his instance vide Ex. P/40. Appellant Dhelu Ram made disclosure statement of kalari vide Ex. P/41 and same was recovered at his instance vide Ex. P/42. Appellant Lalji made disclosure statement of crowbar vide Ex. P/43 and same was recovered at his instance vide Ex. P/44. Appellant Ishwar Brahme made disclosure statement of stick vide Ex. P/45 and same was recovered at his instance vide Ex. P/46. Appellant Kunjulal made disclosure statement of stick vide Ex. P/47 and same was recovered at his instance vide Ex. P/48. Appellant Kuleshwar made disclosure statement of stick vide Ex. P/49 and same was recovered at his instance vide Ex. P/50. Appellant Avon Kumar made disclosure statement of stick vide Ex. P/51 and same was recovered at his instance vide Ex. P/52. Appellant Kastur Lal made disclosure statement of axe vide Ex. P/54 and same was recovered at his instance vide Ex. P/55. Gangaram was discharged from hospital vide discharge ticket vide Ex. P/59. 6. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Raipur, who in turn, committed the case to the Court of Sessions, Raipur, from where the 7th Additional Sessions Judge, Raipur, received the case on transfer for trial. 7. In order to prove the guilt of the accused/appellants, the prosecution examined as many as 24 witnesses. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Raipur, who in turn, committed the case to the Court of Sessions, Raipur, from where the 7th Additional Sessions Judge, Raipur, received the case on transfer for trial. 7. In order to prove the guilt of the accused/appellants, the prosecution examined as many as 24 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication. The appellants were also examined defence witness Ramshilabai, who deposed that Tukaram was resided at Sirpur 15 to 20 years and since 1.6.2006 and 8.6.2006 he was at Sirpur. They have also examined defence witness Dilip Kumar (PW-2), who has deposed that Tulsiram was beaten by Tulasram, Ganesh, Mohan, Ashwani, Ishwar, Super, Vishram, Keju, Dukalu and Radhelal i.e. not beaten by the present appellants. 8. After providing opportunity of hearing to the parties, the trial Court has convicted and sentenced the appellants as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 10. Mr. H.S. Patel & Mr. Raghvendra Pradhan, counsel for appellants No. 1, 2, 3 & 7 in Cr. A. No. 357 of 2008, Mr. Yashwant Tiwari with Mr. Amiyakant Tiwari, counsel for appellants No. 4, 5 & 6 in Cr.A. No. 357 of 2008 and for appellants No. 3, 4 & 5 in Cr. A. No. 366 of 2008, Mr. H.B. Agrawal, Senior Advocate with Mrs. Preeti Yadav, counsel for appellant No. 9 in Cr. A. No. 471 of 2008 and for other appellants whose counsels are not present to represent them, Mr. Neeraj Mehta, counsel for appellant Nos. 1 and 2 in Cr. A. No. 366 of 2008, for appellant-Krishna Kumar in Cr. A. No. 627 of 2008 and for appellant No. 2 Dheluram in Cr. A. No. 471 of 2008, Mr. Abhay Tiwari, counsel for the appellant in Cr. A. No. 470 of 2008 and for appellants No. 5, 10 & 13 in Cr. A. No. 471 of 2008 and Mr. Shrawan Kumar Chandel, counsel for appellant No. 1 in Cr. A. No. 627 of 2008 and for appellant No. 2 Dheluram in Cr. A. No. 471 of 2008, Mr. Abhay Tiwari, counsel for the appellant in Cr. A. No. 470 of 2008 and for appellants No. 5, 10 & 13 in Cr. A. No. 471 of 2008 and Mr. Shrawan Kumar Chandel, counsel for appellant No. 1 in Cr. A. No. 627 of 2008 have vehemently argued that in the light of evidence of the prosecution witnesses they are not disputing the fact that Tulsiram has not died as a result of injuries caused to him, but the prosecution has utterly failed to prove the fact that the appellants came with deadly weapons and they have caused homicidal death amounting to murder of Tulsiram. In the light of evidence adduced on behalf of the prosecution their act does not travel beyond the scope of Section 304 Part-II read with Section 149 of the I.P.C. 11. Mr. Neeraj Mehta, counsel for appellant Nos. 1 and 2 in Cr. A. No. 366 of 2008, for appellant No. 1 in Cr. A. No. 627 of 2008 and for appellant No. 2 in Cr. A. No. 471 of 2008 placed reliance in the matter of Sarman and others Vs. State of Madhya Pradesh AIR 1993 SC 400 in which the Supreme Court has held that if accused inflicted simple injury on non vital parts, then it cannot be said that object of accused was to kill deceased, therefore, the accused are liable to be convicted under Section 304 Part-II read with Section 149 of the I.P.C. instead of Section 302 read with Section 149 of the I.P.C. Learned counsel further placed reliance of the matter of Badal Murmu & Ors. Vs. State of West Bengal AIR 2014 SC 1150 in which the Supreme Court has held that in absence of evidence of doctor that injury was fatal and even availability of sharp edged weapon axe if such has not been used, then the act squarely falls within the ambits of Section 304 Part-II/149 of the I.P.C. and not under Section 302/149 of the I.P.C. Learned counsel also placed reliance in the matter of Navganbhai Somabhai and others Vs. State of Gujarat 1994 Cri. State of Gujarat 1994 Cri. L.J. 1103 in which the Supreme Court has held that in case of number of assault, number of witness, number of injuries, it would have been impossible for the witnesses to give a detailed account and all the accused continued to be members of the unlawful assembly. Learned counsel relied upon the judgment dated 16th August, 2011 passed in Cr. A. No. 786 of 2006 and other connected matter (Dhannu and another Vs. State of Chhattisgarh and Manoj Das Vs. State of Chhattisgarh) in which this Court has held that in absence of evidence that who has caused fatal injury, conviction under Section 302 of the I.P.C. is not sustainable and accused is liable for conviction under Section304 Part-II of the I.P.C. 12. Mr. Yashwant Tiwari with Mr. Amiyakant Tiwari, counsel appearing for appellants No. 4, 5 and 6 in Cr. A. No. 357 of 2008 and for appellants No. 3, 4 and 5 in Cr. A. No. 366 of 2008 and Mr. H.S. Patel & Mr. Raghvendra Pradhan, counsel appearing for appellants No. 1, 2, 3 and 7 in Cr.A. No. 357 of 2008 have argued that the prosecution has utterty failed to prove the guilt of the appellants. Evidences of Ramlal (PW-5) and Gangaram (PW-7) do not inspire confidence and trustworthy. Their evidences are contradictory to each other. There is more than one place of incident, which has not been proved by the prosecution witnesses. Witnesses were standing at different places, it was not possible to witness the incident, date and place, therefore, their evidence especially evidence relating to injuries caused to Tulsiram is not of worth of credence. Mr. Yashwant Tiwari has further argued that copy of F.I.R. has not been sent to the Magistrate as per requirement under Section 157 of the Code and argued that sending of copy under Section 157 of the Cr. P.C. is not a matter of which judicial notice can be taken and it is required to prove like other facts. Learned counsel placed reliance in the matter of Bir Singh and others Vs. The State of Uttar Pradesh AIR 1978 SC 59 in which the Supreme Court has held that copy of F.I.R. is required to be sent under Section 157 of the Code to Magistrate immediately and same is required to prove like other facts. By pointing Exs. Learned counsel placed reliance in the matter of Bir Singh and others Vs. The State of Uttar Pradesh AIR 1978 SC 59 in which the Supreme Court has held that copy of F.I.R. is required to be sent under Section 157 of the Code to Magistrate immediately and same is required to prove like other facts. By pointing Exs. P/59 & P/64 of Gangaram (PW-7) and evidences of Dr. R.S. Thakur (PW-15), Dr. Rajesh Jain (PW-18) and Dr. Sulabha Ahluwalia (PW-21) Mr. Yashwant Tiwari has argued that self-contradictory evidence suffering from infirmity is not sufficient for drawing an inference. 13. Mr. H.S. Patel & Mr. Raghvendra Pradhan, counsel appearing for appellants No. 1, 2, 3 and 7 in Cr .A. No. 357 of 2008 has argued that names of appellants namely Lakhan Bramhe, Lok Nath Brahme and Bhuwan Bramhe did not find place in dehati nalishi Ex. D/2, F.I.R. Ex. P/2 and merg Ex. P/68 and they are also on bail. 14. On the other hand, learned Government Advocate for the respondent/State has opposed the appeals and argued that there is no substantive contradiction and omission in the evidences of the prosecution witnesses, although names of all accused persons have not been mentioned in the F.I.R. and merg, but especially the word 'others' has been mentioned in the Court evidence. They have deposed the names of the assailants, although the prosecution has failed to prove the immediate transmission of copy of F.I.R. to the Magistrate, but same is not always fatal to the prosecution if credibility of prosecution is otherwise proved, although names of the appellants namely Lakhan, Lok Nath, Bhuwan, Binju, Raju Gaikwad, Daulal and Avon Kumar have not been mentioned in dehati nalishi Ex. D/2, but the word 'others' has been mentioned specifically. Other witness Shatrughan Kumar Mannade (PW-3) has stated their names and his statement under Section 161 of the Cr. P.C. has been recorded vide Ex. D/1 (second Ex. D/1) on the same day. Learned Government/Advocate has further argued that evidence adduced on behalf of the prosecution is sufficient to prove the fact that the appellants have formed unlawful assembly, committed murder of Tulsiram and also attempted to commit murder of Gangaram & Ramlal. Learned Government Advocate has also argued that after appreciating the evidence available on record, the trial Court has convicted and sentenced the appellants as aforementioned. 15. Learned Government Advocate has also argued that after appreciating the evidence available on record, the trial Court has convicted and sentenced the appellants as aforementioned. 15. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 16. In the present case, homicidal death as a result of fatal injuries found over the body of Tulsiram has not been substantially disputed on behalf of the appellants, on the other hand, same is also established by the evidences of Punoutinbai (PW-1), Ramlal (PW-5), Gangaram (PW-7), dehati nalishi Ex. D/2, F.I.R. Ex. P/62, merg Ex. P/63, evidence of Dr. R.S. Thakur (PW-15) and autopsy report Ex. P/53. Fatal injuries found over bodies of Ramlal, Smt. Shyambai and Gangaram have also not been disputed on behalf of the appellants, on the other hand, same is also established by the evidence of Dr. Sulbha Ahluwalia (PW-21) and injury report Exs. P/64, P/65, P/66 & P/67. 17. As regards the complicity of the appellants in the crime in question, conviction of the appellants is substantially based on the evidences of Punoutinbai (PW-1), Ramlal (PW-5) and Gaqgaram (PW-7). As per evidence of Ramlal (PW-5), he came back from village Paraswani, he was assaulted by the appellants, he was saved by Smt. Shyambai (PW-6), thereafter they assaulted Gangaram and he heard that they assaulted Tulsiram. Smt. Shyambai (PW-6) has corroborated the evidence of this witness. As per evidence of Gangaram (PW-7), he was present near pond, at that time, he was beaten by Binju by crowbar, other accused persons were also present, they also assaulted him by stick and rod, Binju was holding crowbar, Sumeri was holding axe, Kastur was holding axe, Dhelu was holding kalari, Tibhu was holding Chatwar and others were holding sticks. After causing injuries to him, he become unconscious and when he regained conscious he was informed that Khel was also beaten him and also committed murder of Tulsiram. 18. Punoutinbai (PW-1), wife of the deceased, has deposed in detail that the appellants assaulted Ramlal, Ramlal went inside the house, then the appellants Shyambai and Gangaram and thereafter they rushed towards her house, they entered into her house, assaulted her husband and caused his death. Shatrughan was working upon roof, who hide himself when he saw the incident. 19. Much stress has been given relating to place of incident. Shatrughan was working upon roof, who hide himself when he saw the incident. 19. Much stress has been given relating to place of incident. As per spot map Exs. P/56, P/57, P/58 and P/74. Incident took place near pond. House of deceased Tulsiram is situate other side of the road. One side of road and pond is levelled in other side of the road. There was no bank of pond. Map and evidences of these witnesses reveal that both the places were visible from the house or pond. Ramlal (PW-5) has deposed about the injury caused to him. Gangaram (PW-7) has deposed relating to injuries caused to him, but Punoutinbai (PW-1) has deposed relating to injuries caused to her husband, who lodged dehati nalishi Ex. D/2. 20. Defence has cross-examined these witnesses at length. In their cross-examination they have deposed that Ramlal (PW-5) was beaten in his house adjoining to the pond, Gangaram (PW-7) was beaten near the pond and house of deceased Tulsiram was just after the road. Both places are visible to each other. Ramlal (PW-5) and Gangaram (PW-7) have deposed that Ramlal and Gangaram were beaten by the appellants by different weapons, thereafter they rushed towards the house of Tulsiram where they assaulted Tulsiram. Punoutinbai (PW-1) has lodged dehati nalishi Ex. D/2 (first Ex. D/2). She was present at the time of incident, she has lodged dehati nalishi Ex. D/2 within three to four hours of the incident and has stated the names of appellants Sumeri Satnami, Sahadeo Satnami, Lalji Satnami, Dheluram Satnami, Kunju Satnami, Kastur Satnami, Kuleshwar Satnami, Mahadev Satnami, Jaklu Satnami, Tukaram, Khel, Tibhu Satnami, Krishna Satnami and others. She has also mentioned in dehati nalishi that Sumeri Satnami was holding axe, Sahdev was holding battle axe, Lalji Satnami was holding crowbar, Dhelu Satnami was holding kalari and rests were holding sticks. As many as nine injuries have been caused to the deceased, he was inside his house and was head of the caste or family of other witnesses. 21. Evidences of these witnesses relating to the act attributed to them find support from other evidence and medical evidence. Statement of Punoutinbai (PW-1) under Section 161 of the Code has been recorded on the same day i.e. 2.6.2006 as Ex. D/1 (first, Ex. 21. Evidences of these witnesses relating to the act attributed to them find support from other evidence and medical evidence. Statement of Punoutinbai (PW-1) under Section 161 of the Code has been recorded on the same day i.e. 2.6.2006 as Ex. D/1 (first, Ex. D/1), in which she has named appellants Sumeri Satnami, Sevaram Satnami, Lalji Satnami, Dhelu Satnami, Kunju Satnami, Kastur Satnami, Kuleshwar, Mahavir, Jaklu, Tukaram, Khel, Tibhu Satnami, Krishna Satnami & others and as per evidences of other witnesses, all the persons after causing injuries to Ramlal, Smt. Shyambai and Gangaram proceeded towards the house of Tulsiram where they assaulted Tulsiram. Causing injuries to three persons, thereafter proceeding towards the house of Tulsiram, entering into the house of Tulsiram and causing homicidal death of Tulsiram with deadly weapons are sufficient to establish the fact that they have formed unlawful assembly having their common object to attempt to commit murder of Ramlal, Smt. Shyambai and Gangaram and also commit murder of Tulsiram and in furtherance of common object of unlawful assembly they have caused the aforesaid injuries and committed the offence. 22. As regards the question of the persons who have committed the offence, statement of injured Ramlal (PW-5) under Section 161 of the Code has been recorded on 20.6.2006 as Ex. D/2 (second Ex/D/2), statement of Rameshwar (PW-2) under Section 161 of the Code has been recorded on 2.6.2006 as Ex. D/3, statement of Smt. Shyambai (PW-6) under Section 161 of the Code has been recorded on 8.6.2006 as Ex. D/4 and statement of Gangaram (PW-7) under Section 161of the Code has been recorded on 25.8.2006 as Ex. D/5, but statement of Punoutinbai (PW-1) under Section 161 of the Code has been recorded on the same day i.e. 2.6.2006 as Ex. D/1 (first Ex. D/1) after recording dehati nalishi lodged by her vide Ex. D/2 (first Ex. D/2), which reveal the name of 15 accused on 2.6.2006. She was having opportunity to tell the names of all assailants. She has stated the names of appellants Sumeri Satnami, Sevaram Satnami, Lalji Satnami, Dhelu Satnami, Kunju Satnami, Kastur Satnami, Kuleshwar, Mahavir, Jaklu, Tukaram, Khel, Tibhu Satnami and Krishna Satnami in her statement under Section 161 of the Code as Ex. D/1 and in dehati nalishi Ex. She was having opportunity to tell the names of all assailants. She has stated the names of appellants Sumeri Satnami, Sevaram Satnami, Lalji Satnami, Dhelu Satnami, Kunju Satnami, Kastur Satnami, Kuleshwar, Mahavir, Jaklu, Tukaram, Khel, Tibhu Satnami and Krishna Satnami in her statement under Section 161 of the Code as Ex. D/1 and in dehati nalishi Ex. D/2 she has named appellants Sumeri Satnami, Sahadeo Satnami, Lalji Satnami, Dheluram Satnami, Kunju Satnami, Kastur Satnami, Kuleshwar Satnami, Mahadev Satnami, Jaklu Satnami, Tukaram, Khel, Tibhu Satnami and Krishna Satnami. She has also lodged dehati merg vide Ex. P/68 in which she has named appellants Sumeri Satnami, Lalji Satnami, Dheluram Satnami, Kunju Satnami, Kastur, Kuleshwar, Mahavir, Jaklu, Tukaram, Khel, Tibhu, Krishna Satnami and others. On the basis of merg and dehati nalishi, F.I.R. Ex. P/62 has been registered against 13 persons and others. There is consistency in the ocular and documentary evidence of the witnesses relating to the aforesaid 15 appellants namely Sumeri Satnami, Sevaram Satnami, Lalji Satnami, Dhelu Satnami, Kunju Satnami, Kastur Satnami, Kuleshwar, Mahavir, Jaklu, Tukaram, Khel, Tibhu Satnami, Krishna Satnami and Sahadeo Satnami and Mahadev Satnami, but there is inconsistency about the names of other appellants. 23. Certainly, sending of copy of F.I.R. to the Magistrate has not been proved by the prosecution. Statements of other injured witnesses have been recorded after considerable delay, in these circumstances, we find credible evidence against aforesaid 15 persons for causing homicidal death amounting to murder of Tulsiram and attempt to commit murder of Ramlal, Smt. Shyambai and Gangaram, but we do not find sufficient evidence against other appellants for commission of such offence. Suspicion, however strong it may be, cannot take the place of legal evidence. The prosecution was under obligation to prove the fact that all the appellants have committed the offence. 24. Suspicion, however strong it may be, cannot take the place of legal evidence. The prosecution was under obligation to prove the fact that all the appellants have committed the offence. 24. In absence of sufficient evidence, conviction of rest appellants namely Lakhan Brahme, Loknath Brahme, Bhuwan Brahme, Binju Brahme, Raju Gaikwad, Daulal, Avon Kumar, Percent @ Jannu, Kam Deo, Radheshyam @ Konda, Ishwar Brahme and Kumar Brahme under Sections 147, 450, 302/149 and 307/149 of the I PC are not sustainable under the law, however, evidence adduced on behalf of the prosecution is sufficient for drawing an inference that appellants Sumeri, Sevaram, Lalji, Dhelu, Kunju, Kastur, Kuleshwar, Mahavir, Jaklu, Tukaram, Tibhu, Krishna and Sahadeo have caused homicidal death amounting to murder of Tulsiram and attempted to commit murder of Ramlal, Smt. Radhabai and Gangaram. 25. While convicting appellants Sumeri, Sevaram, Lalji, Dhelu, Kunju, Kastur, Kuleshwar, Mahavir, Jaklu, Tukaram, Tibhu, Krishna and Sahadeo, the trial Court has not committed any illegality, but while convicting appellants Lakhan Brahme, Loknath Brahme, Bhuwan Brahme, Binju Brahme, Raju Gaikwad, Daulal, Avon Kumar, Percent @ Jannu, Kam Deo, Radheshyam @ Konda, Ishwar Brahme and Kumar Brahme, trial Court has not considered the aforesaid circumstances and thereby committed illegality. In the result:-- • Criminal Appeal No. 357 of 2008 filed on behalf of appellants Lakhan Brahme, Loknath Brahme, Bhuwan Brahme, Binju Brahme, Raju Gaikwad, Daulal and Avon Kumar deserves to be and is hereby allowed. Their conviction & sentence under Sections 147, 450, 302/149 and 307/149 of the I.P.C. are hereby set aside. Appellants Lakhan Brahme, Loknath Brahme, Bhuwan Brahme and Avon Kumar are on bail. Appellants Binju Brahme, Raju Gaikwad, Daulal be set at liberty at once and be released forthwith, if not required in any other case. • Criminal Appeal No. 366 of 2008 filed on behalf of appellants Sahadeo, Lalji, Percent @ Jannu, Kam Deo and Radheshyam @ Konda is partly allowed. Conviction & sentence of appellants Sahadeo and Lalji under Sections 147, 450, 302/149 and 307/149 of the I.P.C. are hereby maintained, however, conviction and sentence of appellants Percent @ Jannu, Kam Deo and Radheshyam @ Konda under Sections 147, 450, 302/149 and 307/149 of the I.P.C. are hereby set aside. Appellants Percent @ Jannu, Kam Deo and Radheshyam @ Konda be set at liberty at once and be released forthwith, if not required in any other case. Appellants Percent @ Jannu, Kam Deo and Radheshyam @ Konda be set at liberty at once and be released forthwith, if not required in any other case. • Criminal Appeal No. 627 of 2008 filed on behalf of appellant Krishna Kumar is liable to be and is hereby dismissed. • Criminal Appeal No. 470 of 2008 filed on behalf of appellant Tukaram Gaikwad is liable to be and is hereby dismissed. • Criminal Appeal No. 471 of 2008 filed on behalf of appellants Dheluram, Sewaram, Shivprasad @ Jaklu, Mahesh Kumar @ Mahavir, Ishwar Brahme, Kunjlal, Kuleshwar, Kasturlal and Kumar Brahme is partly allowed. Conviction & sentence of appellants Dheluram, Sewaram, Shivprasad @ Jaklu, Mahesh Kumar @ Mahavir, Kunjlal, Kuleshwar and Kasturlal under Sections 147, 450, 302/149 and 307/149 are hereby maintained, however, conviction & sentence of appellants Ishwar Brahme and Kumar Brahme are here by set aside. Appellants Ishwar Brahme and Kumar Brahme be set at liberty at once and be released forthwith, if not required in any other case. • Appellants Sevaram and Kunjlal are on bail, they shall immediately surrender before the trial Court for serving remaining sentence imposed upon them. The trial Court shall also take immediate appropriate steps for serving their sentence.