JUDGMENT (Dr. ARIJIT PASAYAT, J.)

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the Chhattisgarh High Court dismissing the appeal filed by the appellant (hereinafter referred to as the `accused).

3. Challenge before the High Court was to the judgment of the learned Additional Sessions Judge, Manendragarh. The trial Court had found the appellant guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the `IPC) but found the co-accused, namely, Kashi and Dev Kumar to be not guilty. The appellant was sentenced to undergo RI for life and fine with default stipulation.

4. Prosecution version as unfolded during trial is as follows:

On 10.11.1997 Gyan Singh (hereinafter referred to as the `deceased) went to Ramkhilawans house for collecting kanda (eatable bulb). When he did not come back till evening, his father Heeralal went in search of the deceased to the house of Ramkhilawan in the evening at around 7.00 p.m. Heeralal along with Ramkhilawan and his son Gyan Singh were returning to his house. On the way, when they reached near the house of Kashi, Kashi started scolding Ramkhilawan, who was refrained from doing so. Therefore, a quarrel erupted. Appellant who was carrying pharsa and Kashi a lathi started beating. Appellant gave a pharsa blow on the leg of the deceased. The leg was cut and turned into two pieces. Gyan Singh fell down, thereafter Radhe chopped his other leg and assaulted Gyan Singh with pharsa on his thigh and other parts of the body. Heeralal came to rescue him. Dev Kumar assaulted him with a lathi on his head and also gave a blow on his left shoulder. Heeralal fell down. When Ramkhilawan intervened, he was assaulted by Dev Kumar. In the meantime, Beerbali, who is son of Ramkhilawan came there. He was also beaten by Radhe with pharsa. Kashi assaulted Ramkhilawan with a club. Gyan Singh instantaneously died at the spot and others were injured. Accused appellant and his associates Kashi and Dev Kumar fled away from the place of occurrence. Heeralal gave intimation and lodged First Information Report. Both the documents were recorded by Arjun Ram, Assistant Sub Inspector, Head Constable Jagsai conducted inquest, prepared report and forwarded the dead body of Gyan Singh for autopsy to Community Health Centre, Manendragarh. He collected blood stained and plain earth from the spot. Dr. S.K. Chainpuria conducted autopsy. On examination, he found nine injuries on the body of deceased and according to his opinion, the cause of death was syncope due to shock and external hemorrhage caused by multiple injuries. All the injuries found on the body of Gyan Singh were caused by hard and/or sharp objects except one which was found to be abrasion and present below left knee. Death was homicidal in nature. He prepared autopsy report and describing all the injuries found on the body of the deceased forwarded the report to the concerned police station. Injured Beerbali, Ramkhilawan and Heeralal were also sent for medical examination. On medical examination, it was found that they have sustained various injuries. On the memorandum statement of accused Kashi one club and one pharsa were recovered from the appellant and seized. From Dev kumar one club was seized. After post mortem examination, the clothes found on the body of the deceased were also collected. The statements of witnesses were recorded. The seized pharsa, clothes and earth were sent for chemical examination and on examination stained earth, pharsa and clothes of Gyan Singh were found to be stained with blood. After completion of investigation, the charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Manendragarh, who committed the case to the Court of Sessions for trial. Charges were framed against the appellant and co-accused. The accused-appellant pleaded innocence and false implication.

5. Before the High Court the main stand was that the assault, if any done by the appell