Point of Law: Section 162 of the CrPC states as Explanation. - An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant.

JUDGMENT :

[Sanjay K. Agrawal, J.]

1. Since both the above criminal appeals have arisen out of one and same judgment dated 13-11-2015 passed by the learned 2nd Additional Sessions Judge, Durg in Sessions Trial No.182/2014 and since common question of fact and law is involved in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

2. Sole appellant in Cr.A.No.266/2016 J. Venkatesh and sole appellant in Cr.A.No.525/2016 Rajkumar Pandey have preferred by these two appeals under Section 374(2) of the CrPC against the impugned judgment convicting them for the offences punishable under Section 302 read with Section 34 of the IPC and sentencing them to undergo imprisonment for life with fine of Rs. 250/- each, in default, to further undergo rigorous imprisonment for six months.

3. Case of the prosecution, in brief, is that on 15-8-2014 at night 8 p.m. at J.P. Chowk, Near Jhola Kunwa, Camp-2, Bhilai, Police Station Chhawni, in furtherance of their common intention, the appellants herein and one juvenile accused Shiva assaulted deceased Laxman Thakur by wooden stick by which he suffered injury on his head and succumbed to death and thereby committed the offence punishable under Section 302 read with Section 34 of the IPC. Further case of the prosecution, in brief, is that on 15-8- 2014, the appellants herein and the juvenile accused assaulted the deceased by wooden stick by which he suffered death and thereafter, one boy – unknown to him, resident of same locality, informed to the brother of the deceased – Mahesh Thakur (PW-2) about the incident, then Mahesh Thakur (PW-2) firstly lodged first information report against the appellants herein and the juvenile accused vide Ex.P-8 and thereafter, lodged morgue intimation vide Ex.P-7 stating that on the fateful day, three accused persons assaulted the deceased by which he suffered injury and died on the spot. Thereafter, Alexander Kiro (PW-12) – investigating officer, reached to the spot and collected bloodstained soil and plain soil vide Ex.P-15 and thereafter, panchnama was prepared vide Ex.P- 20. Dead body of the deceased was sent for postmortem which was conducted by Dr. Vipin Jain (PW-3) and his postmortem report is Ex.P-3. Cause of death was head injury. Thereafter, the appellants were arrested and pursuant to the memorandum statement of appellant J. Venkatesh vide Ex.P-13, wooden stick admeasuring 29½" width 5¼" circumference was recovered with blood stains vide Ex.P-16. Similarly, on the basis of memorandum statement of appellant Rajkumar Pandey vide Ex.P-14, one broken piece of wooden stick 27¼" x 6¼" was seized vide Ex.P-17. Articles seized were sent for forensic examination to the Forensic Science Laboratory and the FSL report is Ex.P-25 according to which blood as well as human blood was found on wooden stick Articles C & D and blood was found on shirt & pant of the deceased also, but blood group could not be ascertained. Statement of eyewitness G. Ashok Kumar (PW-9) under Section 161 of the CrPC was recorded on 16-8-2014 and statements of other two eyewitnesses – Soni Bai (PW-10) & Tulsi Beni (PW-11) under Section 161 of the CrPC were recorded on 29-8-2014.

4. Thereafter, after usual investigation, the appellants were chargesheeted for offence under Section 302 read with Section 34 of the IPC and their case was committed to the Court of Sessions for hearing and disposal in accordance with law.

5. The prosecution, in order to prove the offence against the appellants, examined as many as 12 witnesses and brought on record 26 documents Exs.P-1 to P-26. The defence has examined the appellants herein as DW-1 Rajkumar & DW-2 J. Venkatesh and witnesses Smt. S. Sarita (DW-3) & J. Rambabu (DW-4), and brought into record six documents Ex.D-1 to D-6.

6. The trial Court after appreciating oral and documentary evidence on record, finding the testimony of eyewitnesses G. Ashok Kumar (PW- 9), Smt. Soni Bai (PW-10) & Tulsi Beni (PW-11)