Radhe Shyam Sharma, J.

1. This appeal is directed against judgment dated 26-08-1997 passed by Additional Sessions Judge, Janjgir District Bilaspur, in Sessions Trial No. 64/1991. By the impugned judgment, the appellants were convicted and sentenced in the following manner with a direction to run the sentences concurrently:--

Conviction Sentence

Under Section 148 IPC Rigorous Imprisonment for 2 year and to pay fine of Rs. 500/-, in default of payment of fine to further undergo simple imprisonment for six months

Under Section 302/149 IPC Imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine to further undergo simple imprisonment for six months

Case of the prosecution, in brief, is as under:

On the date of incident i.e. 01/10/1989 at about 11-12 in the day deceased Gangaram was returning after grazing catties. When he was passing in front of the mill of Neelkanth (PW-17), appellants surrounded him and assaulted him with deadly weapons. Gangaram sustained injuries. He was taken to Primary Health Center (for short P.H.C.) Shivrinarayan for medical examination vide Ex.P.-27. Dr. R. Jeetpure (PW-11) examined him and gave his report (Ex.P-18) in which he found (i) incised wound 5 c.m. X 1 c.m. into muscle deep behind left ear, blood was coming out (2) lacerated wound 5 c.m. X 1½ c.m. X muscle deep over the top of the head obliquely situated (3) A bruise 3 c.m. X 5 c.m. over left arm oblique. He referred Gangaram to District Hospital Bilaspur for further treatment. Gangaram died during the treatment. Intimation was sent to Police Station City Kotwali, Bilaspur vide Ex. P.-30. Merg Intimation (Ex. P-29) was recorded in Police Station City Kotwali, Bilaspur, thereafter regular First Information Report Ex. P-26 was recorded in Police Station Shivrinarayan. The Investigating Officer reached District Hospital Bilaspur, gave notice (Ex. P-3A) to panchas and prepared inquest (Ex. P-4) on the dead body of deceased. The dead body was sent to Government Hospital Bilaspur for post mortem examination vide Ex. P24. Dr. P.R. Bhattacharya (PW-13) conducted post mortem examination on the dead body of the deceased and gave his report (Ex. P-23), in which he found near about 11 injuries on the dead body of deceased. These injuries were ante-mortem and cause of death was massive intracranial injury and the death was homicidal in nature.

In further investigation, blood stained soil and plain soil were seized from the place of occurrence vide Ex. P-1. Memorandum statement of appellant Jondhu was recorded under Section 27 of the Evidence Act vide Ex. P-5 and at his instance lathi was seized vide Ex. P-16, memorandum statement of appellant Ramnath was recorded vide Ex. P-6 and at his instance lathi was seized vide Ex. P-15, memorandum statement of appellant Chhota @ Jivanlal was recorded vide Ex. P-7 and at his instance lathi was seized vide Ex. P-14, memorandum statement of appellant Kodan was recorded vide Ex. P-8 and at his instance lathi was seized vide Ex. P-13, memorandum statement of appellant Madanlal @ Krishndutt was recorded vide Ex. P-9 and at his instance lathi was seized vide Ex. P-12, memorandum statement of appellant Rajendra was recorded vide Ex. P-10 and at his instance Tangi was seized vide Ex. P-11. Spot Map (Ex. P-25) was prepared by Patwari Harish Chand Rathor (PW-18).

After completion of the investigation, charge-sheet was filed against the appellants in the Court of Chief Judicial Magistrate, Bilaspur, who, in turn, committed the case to the Court of Session Bilaspur, from where it was received on transfer by Additional Sessions Judge, Janjgir, who conducted the trial and convicted and sentenced the appellants as mentioned above.

Appellant Madanlal @ Krishndutt had died during the pendency of this appeal, therefore, his appeal has abated.

2. Shri Neeraj Mehta, learned counsel for the appellants has argued that the finding recorded by trial Court that all the accused persons had assaulted the deceased is incorr