ORDER :

Manindra Mohan Shrivastava, J.

This appeal is directed against impugned judgment of conviction and order of sentence dated 22.01.2014 passed in Session Trial No. 25/2012 by which the appellants have been held guilty of commission of offences under Section 302 IPC by imposing sentence of life imprisonment and fine of Rs. 5000/-, plus default stipulation.

2. The prosecution case as is reflected from the impugned judgment and records of the case is that deceased Kamath Janghel was the son of appellant/Makhan Lal and brother of Pooran Lal. According to prosecution, Makhan Lal had effected partition of the joint property between his two sons but their existed dispute between Makhan Lal and Pooran Lal on one side and deceased Kamath on the other, ever since partition i.e. about 15 years. They were residing in separate house and were using certain part of land as common convenience. It is also the case of the prosecution that many a times, the brothers had entered into dispute arising on account of use of the 'Gali' (narrow passage) reports were lodged in the police station and cases are also pending. In this background, on 06.05.2012 at about 10 AM in the morning, while the deceased, his wife and son were transporting soil using a bullock cart and stacking it by the side of the wall, it was objected to by appellants Makhan and Pooran. Thereafter, the accused surrounded the deceased and Pooran assaulted on the head of Kamath with the help of shovel due to which, Kamath fell down and thereafter the accused also attempted to assault his wife and son who ran away to save themselves. Allegedly, Kamath was assaulted by Pooran and Makhan on his neck, head and back due to which Kamath finally succumbed to death.

3. Upon filing of FIR by Chandrika Bai (PW-6), police reached the place of occurrence, inquest over dead body was prepared and it was sent for postmortem. Upon conducting postmortem, number of injuries were found on the body and the opinion of the doctor was that due to the injuries, the deceased succumbed to death and it was opined to be homicidal death. After conducting usual investigation, which included seizure of soil from the spot, clothes of the deceased and the accused, weapon said to be used in the commission of offence and sending stained articles for forensic test, upon completion of investigation, charge-sheet was filed against the appellants and other co-accused on the allegation that with intention to cause death, they assaulted with a deadly weapon and thereby committed offence of murder. The charges were denied as the accused/appellants did not feel guilty and demanded trial. The prosecution thereafter led as many as 12 witnesses and led several documentary evidence from Ex. P-1 to Ex. P-29. Accused/appellants along with other co-accused were examined under Section 313 Cr.P.C. in respect of incriminating evidence and circumstances appearing against them in the evidence led by the prosecution to which, the appellants denied having committed any offence on the alleged criminal overt act and stated that they are innocent and have been falsely implicated. No defence witness was examined. Though learned trial Court acquitted three co-accused namely Gajanand, Kunti and Munni Bai by giving them benefit of doubt, it held that as far as Pooran Lal and Makhan are concerned, they are guilty of commission of offence as the evidence of eye witnesses proves that these two accused/appellants, with the use of axe and shovel, assaulted the deceased resulting in injury on the vital parts, particularly the head, which proved to be fatal. Aggrieved by the aforesaid judgment, this appeal has been preferred.

4. Learned counsel appearing for the appellants would argue that the learned Court below having doubted the evidence of the prosecution witness, as far as other accused is concerned, based on contradictions and exaggerations ought not to have relied upon the evidence of the testimony of Chandrika (PW-6) and Ajay (PW-5) who are rela