JUDGMENT :

SANJAY K. AGRAWAL, J.

1. This criminal appeal preferred by Rajendra Prasad Xalxo (A-1) & Chamru Ram (A-2) under Section 374(2) of the Cr.P.C. is directed against the impugned judgment passed by the learned Additional Sessions Judge by which they have been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs. 500/- each, in default, to further undergo additional rigorous imprisonment for two months.

2. Case of the prosecution, in a nutshell, is that on 23-7-2012, the present appellants along with two acquitted accused persons, in furtherance of their common intention, assaulted Radheyshyam by lathi by which he suffered grievous injuries and died. Further case of the prosecution is that complainant Kishore Ram (PW-3) has given his motorcycle for repair to deceased Radheyshyam Mistri, which accused Rajendra Prasad Xalxo (A-1) has allegedly brought from his repair shop and sold at Village Rajpur on which Kishore Ram (PW-3) & deceased Radheyshyam Mistri enquired from A-1 by visiting his house as to why his motorcycle has been sold by him, then, it is also the case of the prosecution that A-1 behaved irresponsibly and entered into quarrel with Kishore Ram (PW-3) & Radheyshyam (deceased), whereupon Radheyshyam ran way upon which the two appellants herein chased him and ultimately, assaulted him in the field of Ramkeval and thereafter, the appellants absconded. Radheyshyam became unconscious and he was escorted to hospital at Shankargarh, District Balrampur-Ramanujganj and thereafter, on the complaint lodged by Kishore Ram (PW-3), offence punishable under Section 307 read with Section 34 of the IPC has been registered against the accused persons including the appellants herein. Thereafter, Radheyshyam was referred to District Hospital, Ambikapur from where he was shifted to Raipur for better treatment, but before he could reach Raipur, he succumbed to the injuries sustained by him and died on the way. Morgue intimation Ex.P-29 was registered on 26-7-2012, inquest proceeding was conducted vide Ex.P-5 and on the recommendation of panchas, dead body of the deceased was sent for postmortem to Community Health Centre, Shankargarh vide Ex.P-31 where postmortem was conducted by Dr. Shashikala Toppo (PW-12) vide Ex.P-20 and cause of death was stated to be cardio respiratory arrest due to coma as a result of head injury and death was homicidal in nature. Upon the disclosure statement of accused/appellant Rajendra Prasad Xalxo (A-1) recorded vide Ex.P-11, wooden lathi was seized from him vide Ex.P-7. Similarly, upon the disclosure statement of accused/appellant Chamru Ram (A-2) recorded vide Ex.P-14, bamboo stick (lathi) was seized from him vide Ex.P-15. Seized articles were sent for chemical examination to the FSL, Raipur, but no FSL report has been brought on record.

3. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After due investigation, the accused/appellants herein and the two acquitted co-accused persons were chargesheeted for offence under Section 302 read with Section 34 of the IPC and charge-sheet was filed before the jurisdictional criminal court i.e. Chief Judicial Magistrate, Balrampur and the case was committed to the Court of Sessions from where the learned Additional Sessions Judge, Ramanujganj received the case on transfer for conducting trial and for hearing and disposal in accordance with law.

4. The accused persons abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as fourteen witnesses and exhibited 42 documents. The defence has examined none and exhibited no document. The accused persons were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question.

5. The trial Court after appreciating oral and documentary evidence available on record, while acquitting t