JUDGMENT :

Sanjay K. Agrawal, J.

1. Since all the three criminal appeals and one criminal revision have arisen out of one and same judgment dated 18-8-2009 passed by the Additional Sessions Judge (FTC), Rajnandgaon in Sessions Trial No.108/2007, they have been clubbed together, heard together and are being disposed of by this common judgment.

2. These three criminal appeals have been preferred by the accused/appellants under Section 374(2) of the CrPC against judgment convicting them for the offence punishable under Section 304 Part-II of the IPC and sentencing them to undergo rigorous imprisonment for seven years with fine of Rs. 500/- each, in default, to further undergo simple imprisonment for two months, whereas they have been acquitted of the charges under Sections 147, 148, 120B of the IPC and also under Section 302 of the IPC against which criminal revision has been preferred by the complainant under Section 397 read with Section 401 of the CrPC.

3. Two appellants in Cr.A.No.671/2009 namely, Fakruddin (A-1) & Nassu @ Jalaluddin (A-5); sole appellant in Cr.A.No.713/2009 namely, Yakinuddin @ Banti (A-3); and three appellants in Cr.A.No.649/2009 namely, Sainuddin (A-2), Mohammad Karim (A-4) & Peeru @ Peeruddin (A-6) were earlier charge-sheeted for offences under Sections 147, 148, 302, 120B, in alternative Section 302 read with Section 149 of the IPC, but they have been convicted only for offence under Section 304 Part-II of the IPC and they have been acquitted of the charges under Sections 147, 148, 120B and 302 read with Section 149 of the IPC, as such, the appellants in three criminal appeals have assailed their conviction for offence under Section 304 Part-II of the IPC, whereas Jahin Khan – the complainant has challenged their acquittal for the aforesaid offences by filing criminal revision and has made prayer for passing appropriate order convicting the accused/appellants.

4. Case of the prosecution, in brief, is that on 10-7-2007 at about 11.15 p.m. - 11.30 p.m., Near Manav Mandir Chowk, Opposite Nohra Pan Centre, Rajnandgaon, the appellants have constituted unlawful assembly and in furtherance of their common object of causing simple hurt, they were armed with bamboo stick and wheel spanner, and thereafter, the members of unlawful assembly prepared themselves for murder of Paru @ Parvez and accordingly, they have entered into criminal conspiracy of causing death and caused the death of Paru @ Parvez. Further case of the prosecution is that on 10-7-2007 at 11 p.m., deceased Paru @ Parvez had gone to Nohra Pan Centre by his car for eating betel leaves, whereby tyre of his car got punctured on which he informed to his wife by cellphone asking her to send his son Jahin Khan (PW-18) and accordingly, his son Jahin Khan (PW-18) reached to the spot and started unbolting the stepney wheel, then, at that time, Fakruddin (A-1) came on the spot and thereafter, five other accused persons came on the spot and altercation took place between them and deceased Paru @ Parvez. It is the further case of the prosecution that when the accused persons started assaulting the deceased, Tulsi Mahobia (PW-4), Ravi Mahobia, who has not been examined, and Nadeem (PW-7) tried to intervene. The accused persons assaulted Paru @ Parvez by wheel spanner by which he suffered injuries and died on the spot. The deceased was taken to District Hospital, Rajnandgaon where he was declared brought dead. Death of the deceased was informed by the doctor to Police Station Basantpur vide Ex.P-19 and he was declared dead vide Ex.P-20. Accordingly, the police registered dehati nalishi report Ex.P-25 and on the basis of dehati nalishi, first information report was registered vide Ex.P-38 and morgue intimation was registered vide Ex.P-37. Inquest was conducted and thereafter, dead body was sent for postmortem on the application of the jurisdictional police vide Ex.P-27 and postmortem was conducted by Dr. R.R. Mandle (PW-20) vide Ex.P-28 in which cause of death was ment