1. These two appeals are being decided by this common order as both the appeals arise out of judgment of conviction and order of sentence dated 30th September, 2008 passed by learned Special Judge (under the provision of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Korea, in Special Case No. 13/06, whereby and where under the appellants in both the appeals have been held guilty of commission of offence alleged against them and sentenced as described below-

Conviction Offence

Under Section 302/34 IPC Life imprisonment with fine of Rs. 500/- in default to payment of fine amount, additional R.I. for 3 months, to each of the appellants

Prosecution Story:

A merg intimation in Ex. P/1 was lodged in Police Station - Kelhari by Mansingh (PW1) on 12/05/05 at 16:10 hrs., in which it was stated by him that his brother-in-law Vijay Singh was assaulted with axe by Bhagirathi, Shyam Sundar and his son Rajkumar in which incident, Vijay Singh has died. Upon receipt of information with regard to death of Vijay, which prima facie disclosed commission of offence, FIR was registered at 16:20 hrs. in the Police Station-Kelhari in Ex. P/2. In the FIR, Mansingh (PW1) stated that he is the resident of village-Shripur and a gond tribal. His brother in law Vijay was going to his house after meeting Jadunath at about 3:00 p.m. in the afternoon and at that time, in the field of Shyam Sundar, he was pulled down from his bicycle and assaulted by axe and club by Shyam Sundar, Bhagirathi and Rajkumar. The incident has been seen by Rangu. His brother in law has been murdered due to old enmity. Two-three days before the date of incident, there was altercation and heated talks between the deceased and Shyam Sundar. Jadunath has seen Bhagirathi hurling abuses and running with an axe in his hand.

The police proceeded to the scene of occurrence and prepared inquest report over dead body. The dead body was sent for postmortem and Dr. Puran Singh (PW11) conducted postmortem of the dead body at 11:30 a.m. on 13/05/05. Upon examination of internal and external injuries, doctor opined that the mode of death was shock due to excessive hemorrhage from brain due to ante-mortem injury by sharp object and was homicidal in nature. The memorandum of Shyam Sundar and Bhagirathi was taken in Ex. P/11 and Ex. P/12 and it is the case of the prosecution that on the basis of the memorandum an axe was recovered at the instance of Bhagirathi and a club (laathi) Was recovered on the disclosure statement of Shyam Sundar. The police also recovered blood stained soil, clothes of the deceased & appellant and sent those articles for chemical examination to FSL. After completion of usual investigation and recording diary statement under Section 161 Cr.P.C., police filed charge-sheet before the Special Court.

2. On the basis of the material contained in the charge-sheet, the learned trial Court framed charges on 29/08/05, in which, it was alleged that on 12/05/05 at 15:00 hrs. the appellants with common intention to cause death of Vijay Singh, who belonged to scheduled tribe, assaulted with the help of axe and club and caused his death and thereby committed offence punishable under Section 302/34 IPC and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The third accused Rajkumar being juvenile was separately tried by the Juvenile Justice Board.

The appellants abjured guilt and they were put to trial. In order to prove its case, the prosecution examined as many as 13 witnesses. The appellants were also examined under Section 313 of Cr.P.C. on 02/06/08 in respect of the incriminating evidence appearing against them in the evidence led by the prosecution. The appellants denied having committed any offence. In order to prove its defence, the appellant examined Kodulal (D.W.1) as a sole defence witness. Relying upon the evidence led by the prosecution, learned trial Court held the appellants Shyam Sundar and Bhagirathi g