IMPORTANT POINT
Conviction for murder requires proof of active participation and common intention; mere presence is insufficient for liability.

JUDGMENT :

Rajani Dubey, J.

Both the appeals are being decided by this common judgment as these appeals arise out of the judgment of conviction and order of sentence dated 27.11.2019 passed by learned II Additional Sessions Judge, Durg in ST No.28/2016 whereby the appellants stand convicted and sentenced as under :

2. Case of the prosecution, in brief, is that on 9.11.2015 at around 8 pm Damendra Sahu and Suraj Sahu were going by motorcycle towards Power House for purchasing clothes. The motorcycle was being ridden by Suraj Sahu. When they reached near Sheetla Pond, the appellants came there by motorcycle, intercepted them and started filthily abusing them. When Suraj Sahu objected to it, appellant Narshing Verma provoked appellant Bawander to assault him as he would do hooliganism in their area. Thereupon, appellant Bawander shot at the chest of Suraj Sahu with a countrymade revolver carried by him. Thereafter, Dhamendra Sahu and Suraj Sahu began to run away from there, however, Suraj Sahu fell down at some distance. When Dhamendra Sahu informed about the incident to mother and sister of Suraj Sahu, they came there and took him to Apollo Hospital and from there to Sector-9 Hospital, Bhilai where he died. On report being lodged to the above effect, merg intimation and Dehati Nalishi were registered; the dead body was sent for postmortem after conducting inquest over it and offence under Sections 302, 34, 341, 114 of IPC was registered vide FIR (Ex.P/24).

3. During investigation, spot map Ex.P/8 was prepared, bloodstained and plain soil were seized from the place of occurrence vide Ex.P/17; wearing apparels of the deceased, bullet and x-ray film were seized vide Ex.P/12 and memorandum statements of the appellants were recorded vide Ex.P/13 & P/14. As per seizure memo Ex.P/16, two live cartridges and one Hero Honda motorcycle were seized on being produced by appellant Narsingh Kumar Verma from his house. One six-round revolver with one chamber having empty cartridge and a live cartridge in one chamber were seized on being produced by appellant Kamal Sahu as per Ex.P/15. The said live cartridges and revolver were sent for examination to armourer. The other seized articles were sent to FSL for chemical examination vide Ex.P/30. Statements of the witnesses were recorded and after obtaining sanction for prosecution under Sections 25 & 27 of the Arms Act, upon completion of usual investigation, charge sheet was filed under Sections 302, 341, 114, 34 of IPC and Sections 25 & 27 of the Arms Act before the Judicial Magistrate First Class, Durg.

4. Learned trial Court framed charges under Sections 302, 34 of IPC and Sections 25 & 27 of the Arms Act, which were abjured by them and they prayed for trial. In order to prove its case, the prosecution examined 17 witnesses in all. Statements of the accused were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, no witness was examined by them in defence.

5. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, convicted and sentenced the appellants as mentioned in para 1 of this judgment. Hence these appeals.

6. Learned counsel for the accused/appellant in CRA No.273/2020 would submit that the impugned judgment is per se illegal and contrary to the material available on recor