JUDGMENT

Prakash Chandra Gupta, J. - The instant appeal has been filed by the appellants/ accused persons being aggrieved by the judgment dated 25/05/1995 passed by Ist Additional Sessions Judge, Shahdol in S.T. no. 121/1994, whereby the appellant Babula has been convicted for the offence punishable under section (hereinafter referred to as u/s) 148 and 302 r/w 149 of the Indian Penal Code, 1860 (hereinafter referred to as IPC); and the remaining appellants have been been convicted for the offence under section 147 and 302 r/w 149 of the Indian Penal Code, 1860. They have been sentenced to undergo rigorous imprisonment for 1 year; and life imprisonment and fine of Rs.100/- respectively, with default stipulation of additional simple imprisonment of 1 month.

2. The facts of the case, in short is that, deceased Shyamlal, Babbu Baiga (PW/4) and Gorelal are real brothers and resident of village Dhurwar, P/S District- Shahdol (M.P.). About 4 years prior to the incident, the deceased was convicted and sentenced to undergo life imprisonment for the murder of co-accused Gojwa's son Baiya Baiga and he was on bail after the incident deceased Shyamlal used to live at in-laws house situated at village Barhai with his wife and children. A day before the incident, deceased along with his wife and children had come to his parental house at village Dhurwar. Brother-in-law Sukkhu and sister Shyambai of deceased had also come to village Dhurwar. The date of incident is 28/03/1994 at around 10 AM-11 AM, the next day of Holi festival, the deceased had gone to the shop of Baijnath (PW/2) to buy bidi, at that time, Birulal (PW/ 3) was walking near the shop of Baijnath (PW/ 2), co-accused Gojwa Baiga and Shahaiya Baiga said 'let us go and kill Shyamlal, he has spread his terror so much', just after a while all the 17 accused persons came from their house with lathis and axes and chased the deceased. Deceased ran and entered in the house of Daua Baiga (DW/1). The accused persons, took out the deceased from Daua Baiga's home and chased him to the courtyard (badi) and beat him with lathis and axes. Seeing the incident, nephew of the deceased, Birulal (PW/3) went running and told his uncle Babbu Baiga (PW/4), cousin Raju Baiga (PW/2) and other family members about the incident. thereafter Raju Baiga (PW/2), Babbu Baiga (PW/4), Chamman Bai (PW/5), Sukkhu and some other members alongwith Biru Baiga (PW/3) came on the spot and saw that accused persons were giving blows to deceased by means of lathis, axes, stones and were slamming him on the ground. Gorelal heard and came to the spot. Then accused persons fled away. Deceased died on the spot because of the injuries inflicted on him. On the same date at 04:10 PM, ASI Ram Niwas Tiwari (PW/ 6) had lodged an FIR (Ex.P/4) against accused persons on intimation given by Raju Baiga (PW/2). He also wrote Marg Intimation (Ex.P/6) at 04:15 PM.

3. During investigation on 28/03/1994, SI K.G. Shukla (PW/ 8) inspected the spot and prepared spot map (Ex.P/5). He had given notice to the witnesses and prepared notice (Ex.P/8) and Lash Panchnama (Ex.P/9) of deceased. He sent the body of deceased for post-mortem alongwith application (Ex.P/2) through constable Ram Kripal Dubey. On 29/03/1994 at 09:30 AM, Dr. Pradeep Khare (PW/1) conducted post-mortem of deceased and gave report (Ex.P/1). At the time of post-mortem, Dr. Pradeep Khare (PW/1) preserved and sealed an underwear, a full pant, shirt and banyan of deceased and handed it over to constable Ram Kripal Dubey for chemical examination. On 07/04/1994 SI K.G. Shukla (PW/8) seized the sealed packets of clothes of deceased from constable Ram Kripal Dubey vide seizure memo (Ex.P/7).

4. On 28/03/1994 at 05:15 PM seized four pieces of blood stained stones (Article- J,K,L and M) from the spot vide seizure memo (Ex.P/11) and at 05:30 PM, he seized blood stained soil, plain soil and blood stained twig of Ipomoea Carnea (Besharam plant) from the spot vide seizure memo (Ex.P/10). On 30/03/