JUDGMENT :

SANJAY K. AGRAWAL, J.

1. This criminal appeal preferred by the appellants herein (three in number) under Section 374(2) of the Cr.P.C. is directed against the judgment of conviction recorded for offence punishable under Section 302 read with Section 34 of the IPC and sentence awarded to them under Section 302 read with Section 34 of the IPC i.e. imprisonment for life and fine of Rs. 500/- each, in default of payment of fine, to further undergo rigorous imprisonment for two months by the Additional Sessions Judge, Kondagaon, District Kondagaon by the impugned judgment dated 26-10-2016 in Sessions Trial No. 68 of 2013.

2. The facts giving rise to this appeal are that Smt. Sugantin Bai, sister of appellants herein died on 24-5-2013 at about 10.00 am at village Titna Sadak Para, P.S. Makidi, District Kondagaon. Further case of the prosecution is that the appellants herein after having received the information of death of their sister namely Sugantin Bai reached to the house of Sugantin Bai armed with lathis and assaulted Vishwanath Batti (deceased) with hands and fists and also by lathis as a result of which he succumbed to the injuries and died, thereby they committed murder of Vishwanath Batti and thereafter the offence under Section 302 read with Section 34 of IPC was registered against them.

3. Further case of the prosecution is that on 24-5-2013 at Police Station Makidi, PW-1 Premlal Batti, father of the deceased lodged merg intimation vide Ex.P/17 and thereafter FIR (Ex.P/18) was lodged on the same day by PW-1 Premlal Batti on the basis of which offence under Section 302 read with Section 34 of IPC was registered against the appellants herein and thereafter inquest vide Ex. P/7 was conducted on the body of the deceased and dead body of the deceased was sent for postmortem on the same day and postmortem was conducted by PW-8 Dr. Rahul Kumr Sahu and postmortem report was received vide Ex.P/15 wherein it has been stated that cause of death was syncope due to ante-mortem intracranial injury and mode of death was homicidal in nature. Thereafter, the statements of PW-1 Premlal Batti, PW-2 Shri Dharam Singh and PW-3 Shri Ashulal were recorded and seizure of Lathis were made vide Ex.P/2, Ex.P/5 and Ex.P/8 and same were sent for chemical examination to FSL and a report thereof was received vide Ex.P/25 in which blood stains were found on the Bambo Sticks and thereafter, statements of the witnesses were recorded under Section 161 of Cr.P.C.

4. After completion of investigation, charge-sheet was fled before the Judicial Magistrate First Class, Kondagaon against the appellants/accused and it was committed to the trial Court/Court of Session for trial. The appellants herein abjured the guilt and entered into defence.

5. In order to bring home the above-stated offence, the prosecution examined as many as nine witnesses and exhibited 25 documents, whereas one document Ex.D/1 was produced by defence.

6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 26-10-2016 based on testimony of PW-1, Premlal Batti, PW-4 Smt. Ramati and PW-6 Budhram, convicted the appellants for offence under Section 302 read with Section 34 of the IPC and sentenced them as aforementioned, against which, this criminal appeal has been preferred by the appellants/accused (three in number).

7. Mr. Shobhit Kostha, learned counsel for the appellants/accused, would submit that none of the prosecution witnesses has come forward to depose that which of the accused person out of three accused persons caused one fatal injury to the deceased Vishwanath Batti by which he died and as such in absence of evidence as to who caused fatal injury to the deceased, the appellants can only be convicted for offence punishable under Section 325 or 326 of IPC. He would further submit that since the appellants are in jail for more than eight years, therefore, conviction under Section 302 read with Section 34 of IPC be set aside and i