P. Diwaker, J.

1. This appeal has been filed against the judgment of conviction and order of sentence dated 28.8.2004 passed by the 4th Additional Sessions Judge (FTC), Ambikapur, District Surguja (CG) in S.T. No.412/03 convicting the accused/appellants under Sections 302/34 & 201/34 of the Indian Penal Code (for short 'the IPC') and sentencing each of them to undergo R.I. for Life and fine of Rs.500/- & RI for 7 years and fine of Rs.500/-, with usual default clause, respectively.

2. In the present case name of deceased is Umesh Chowdhry son of Gajadhar Chowdhary (PW-10).

3. The prosecution story, in brief, is that the deceased was running a grocery shop in a tenanted premises at Khaalpara, Chitarpur. He used to go to his shop in the morning and come back to his house between 7 & 8 p.m. in the night. On 1.10.2003 at about 12.00 in the noon the deceased left the house for his shop but he did not return to his house in the night. In the early hours of the morning, the wife of deceased, seeing that her husband had not returned home in the night, sent her elder son Vinay Kumar (PW-12) to the shop to find out where the deceased was. After some time, Vinay Kumar (PW-12) returned and informed her mother that body of the deceased is lying beside the road near bushes at Dhodki Nala having several injury marks on various part of his body. On the basis of suspicion, FIR (Ex.P-6) was lodged against accused/appellant No.1 by Gajadhar Chowdhary (PW-10) on 2.10.2003 at 8.30 a.m. On the same day at 8.35, Merg Intimation (Ex.P-7) was recorded on 2.10.2003 at 8.35 a.m. Inquest was conducted over the body of deceased vide Ex.P-3. Body of the deceased was sent for post-mortem examination which was conducted by Dr. Kamlesh Kumar (PW-14) vide Ex.P-10 and he noticed following injuries on the body of deceased:-

• anti mortem multiple abrasions on the front of neck, right arm & forearm.

• anti mortem abrasions on the right side of abdomen.

• anti mortem abrasion on the right side of legs.

• Fracture of hyoid bone and trachea rings were congested.

The doctor has opined that cause of death was asphyxia due to throttling and the death was homicidal in nature. During investigation, on 3.10.2003 memorandum statement of accused/appellant No.2 was recorded vide Ex.P-11 and based on which cash of Rs.300/- & key bunch, which he took out from the pocket of deceased while throwing his body beside the road, were seized vide seizure memo Ex.P-12. In the memorandum statement it has been stated by accused/appellant No.1 that there was business rivalry between them and for this reason, on 1.10.2003 at about 7.00 p.m. he along with co-accused Bhainsa followed the deceased, stopped him near Dhodki Nala and committed his murder by pressing his neck and thereafter threw his body beside Nursery road along with his bag & bicycle. Shop of the deceased was opened from the key seized at the instance of accused/appellant No.1. Mud stained shirt & lungi worn by the accused/appellant at the time of incident were seized vide seizure memo of Ex.P-16. Seized articles were sent for chemical examination and as per un-exhibited report of FSL, shirt of accused/appellant No.1 (Article-2) and Gamchha of the deceased seized from the spot were found to be stained with blood.

In the course of investigation, diary statements of PW-1 & PW-7 were recorded in which they have stated that accused/appellant No.2 made extra judicial confession before them about committing murder of the deceased. Police statements of PW-10 & PW-11 have also been recorded in which they have stated about the motive behind commission of crime.

4. On completion of investigation, charge sheet for the offence punishable under Sections 302/34 & 201/34 IPC was filed against the accused/appellants and accordingly the charges were framed against them by the trial Court. The prosecution in order to bring home the charges levelled against the accused/appellants examined 19 witnesses in all. Statements of accused/appellants were