(1.) Since both the above criminal appeals have arisen out of one and same judgment dtd. 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 Sec. 374(2) of the CrPC against the impugned judgment convicting them for the offences punishable under Sec. 302 read with Sec. 34 of the IPC and sentencing them to undergo imprisonment for life with fine of ? 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 Sec. 302 read with Sec. 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 ad-measuring 29 1/2" width 5 " 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 27 " x 6 " 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 and D and blood was found on shirt and pant of the deceased also, but blood group could not be ascertained. Statement of eyewitness G. Ashok Kumar (PW-9) under Sec. 161 of the CrPC was recorded on 16/8/2014 and statements of other two eyewitnesses - Soni Bai (PW-10) and Tulsi Beni (PW-11) under Sec. 161 of the CrPC were recorded on 29/8/2014.