Judgment : Rajani Dubey, J. 1. Challenge in this appeal is the legality and validity of the judgment of conviction and order of sentence dated 10 th September, 2013 passed by the Sessions Judge, Kabirdham (Kawardha) in ST No.46/2011 whereby each of the appellants stands convicted under Sections 147, 148, 341, 323, 506B and 302 read with Section 149 of IPC and sentenced as under: Conviction Sentence Under Sections 302 read with 149 of IPC. Life imprisonment, pay a fine of Rs.5000/- and in default thereof to suffer additional RI for five months’ RI. Under Section 148 of IPC. RI for two years, pay a fine of Rs.500/- and in default thereof to suffer additional RI for three months. Under Section 341/149 of IPC. RI for one month. Under Section 506B/149 of IPC. RI for five years. Under Section 323/149 of IPC. RI for one year. All the sentences were directed to run concurrently. 02. Case of the prosecution, in brief, is that on 7.5.2011 at 21:05 hours complainant Ishwar Patle lodged a report at Police Chowki- Damapur that he is an elected panch of Ward No.12 at Village- Girdharikanpa and in the past when panchayat election was conducted his opponent Narendra Banjare lost by four votes. Since then Narendra Banjare and his family members and relatives nourished animosity against the complainant and his relatives and threaten them of taking revenge of this defeat. On 7.5.2011 there was marriage of his niece and he along with his younger brother Bhagwat had gone to Kunda market on motorcycle for buying DTH. His nephew Manmohan and son-in-law Daulat also went on another motorcycle with him. After making purchase, all of them were returning to their house. However, at about 6.30 when they reached in front of house of Suresh Banjare, they saw Anendra, Sundar, Ganesh, Gambhir, Saheb, Suresh, Gyani and Santosh sitting there with club and stick in their hands. They wrongfully restrained the complainant party on the way and started assaulting them with intention to kill them. However, they somehow escaped from there and went to the house of their cousin Pukal. Seeing their condition, his elder brother Kirtam and other relatives reached near the house. At that time, Hemlal, Rajesh, Deenu, Matuk, Manoj, Asharam, Tekram, Kuleshwar, Gangu, Rekhchand, Kalam, Sadhe and Narendra also reached there with club and stick and they started beating the family members of the complainant party. Seeing their condition, his elder brother Kirtam and other relatives reached near the house. At that time, Hemlal, Rajesh, Deenu, Matuk, Manoj, Asharam, Tekram, Kuleshwar, Gangu, Rekhchand, Kalam, Sadhe and Narendra also reached there with club and stick and they started beating the family members of the complainant party. As a result of this, Kirtam sustained injury over his left temporal region, hands and other parts of the body, he fell unconscious and died whereas Bhagwat, Horilal, Urendra and Bhagbali also suffered injuries. 03. During investigation, inquest over the dead body was performed vide Ex.P/9A. The injured persons were got medically examined vide Ex.P/53 to P/57; spot maps (Ex.P/6 & P/7) were prepared; memorandum statements of the accused persons were recorded and at their instance, the clubs used in commission of the offence were seized vide Ex.P/10 to P/50. Statements of the witnesses were recorded and seized articles were sent to FSL for chemical examination from where report Ex.P/59 was obtained. After completing formal investigation charge sheet was filed against the accused persons under Sections 147, 148, 149, 294, 323, 506B, 341, 302 of IPC. Learned trial Court framed charges under Sections 147, 148, 294, 323 (on five counts), 506B, 341 and 302 read with Section 149 of IPC against the accused persons which were abjured by them and they prayed for trial. 04. In order to bring home the charges, the prosecution examined 17 witnesses in all. Statements of the accused persons were recorded under Section 313 of CrPC wherein they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. No witness was examined by them in their defence. 05. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court while acquitting accused Hemlal, Rajesh, Matuklal, Manoj, Asharam, Kalam, Ayodhya, Narendra, Rekchand, Gangu, Sadhelal and Tekram of all the charges, convicted and sentenced the accused/appellants as mentioned above. Hence this appeal. 06. Learned counsel for the appellants submits that the impugned judgment is per se illegal and contrary to the material available on record. The finding of learned trial Court that the appellants committed murder of Kirtram is contrary to the postmortem report and statement of Dr. Hence this appeal. 06. Learned counsel for the appellants submits that the impugned judgment is per se illegal and contrary to the material available on record. The finding of learned trial Court that the appellants committed murder of Kirtram is contrary to the postmortem report and statement of Dr. KK Dhruv (PW-2) who has stated that death of Kirtram is not homicidal in nature and that the injuries received by him were not sufficient to cause death in ordinary course of nature. PW-3 Ishwar states that all 21 accused including the juvenile offender assaulted all the victims, himself as also the deceased whereas the deceased sustained only three injuries and on examination of PW-3 the doctor found that the complainant was only complaining of pain in knee and swelling with tenderness was found. Thus, this witness is not at all reliable and he gave an exaggeration account of the incident. Learned trial Court ought to have appreciated that similarly PW-4 Manmohan, PW-5 Bhagwat, PW-6 Urendra, PW-7 Horilal, PW-8 Pukal, PW-9 Ashok, PW-10 Daulat and PW-12 Bhagbali had received simple injuries which could be caused in exercise of right of private defence by accused No.4 Sunder and 2-3 others. There is material contradiction in respect of the spot where the alleged fight took place. PW-3 Ishwar states that the body of deceased was not placed in the house of Manmohan and similar statement was given by Manmohan whereas PWs-5, 7, 8 & 9 made contrary statements that body of the deceased was placed in the house of Manmohan. In this case, the police has not prepared memo regarding recovery/seizure of dead body or the spot. Likewise, PWs-3, 4, 8, 9, 10 & 12 stated that the accused persons assaulted in front of school near Pukal’s house whereas PWs-5 & 6 state that the accused persons came into the house of Pukal and assaulted. He submits that the so-called eyewitnesses to the incident have failed to state the individual act of the accused persons which shows that the prosecution witnesses cooked up a story to implicate the accused and being part of conspiracy stated that all the accused assaulted Kirtam and the injured whereas their medical reports falsify their statements. Learned counsel further submits that as per statement of PW-8 Pukal, there was dispute in respect of encroachment of fencing of badi of Sunder and Ishwar. 07. Learned counsel further submits that as per statement of PW-8 Pukal, there was dispute in respect of encroachment of fencing of badi of Sunder and Ishwar. 07. Learned counsel for the appellants also argues that all the injured witnesses admitted that they are facing trial in respect of Crime No.69/2011 for the offence under Sections 147, 148, 324/149, 294 of IPC which is a counter case in which Sunder received injury on head caused by axe and the prosecution witnesses failed to explain as to how Sunder sustained this head injury. Learned trial Court failed to appreciate and consider the plea of right of private defence raised by the accused persons to save life of accused Sunder. In fact, when in exercise of right of private defence Sunder wielded lathi it hit the injured persons, Kirtram fell down after sustained head injury and died due to shock. On the same set of evidence, out of 20 accused persons, 12 have been acquitted by learned trial Court. Thus, looking to the nature and quality of oral evidence, medical evidence and the fact that counter case was also registered against the complainant party, the impugned judgment is not legally sustainable and it is liable to be set aside. Reliance has been placed on the decisions in the matters of Laxmi Singh Vs. State of Bihar , (1976) 4 SCC 394 ; Amar Singhh Vs. State of Punjab , (1987) 1 SCC 679 ; Baburam and others Vs. State of Punjab , (2008) 3 SCC 709 ; Jawaharlal alias Mullu Vs. State of CG, 2015 SCC OnLine Chh 1795; Chandrapal Vs. State of CG , (2023) 16 SCC 655 ; Sudeep Kumar Bose Vs. State of Cg , 2024 SCC OnLine Chh 186; and Onkar Singh Vs. State of CG , 2025 SCC OnLine Chh 8739 08. On the other hand, learned counsel for the State as also learned counsel for the complainant opposing the contention of the appellants submit that the learned trial Court upon proper appreciation of the oral and documentary evidence has rightly passed the impugned judgment of conviction and order of sentence which need no interference by this Court. Therefore, the present appeal being devoid of any substance is liable to be dismissed. 09. Heard learned counsel for the parties and perused the material available on record. 10. Therefore, the present appeal being devoid of any substance is liable to be dismissed. 09. Heard learned counsel for the parties and perused the material available on record. 10. It is clear from the record of learned trial court that the accused/appellants along with 12 co-accused were charged under Sections 147, 148, 294, 323 (on five counts), 506B, 341 and 302 read with Section 149 of IPC and after appreciation of oral and documentary evidence learned trial Court while acquitting 12 co-accused of all the charges, convicted and sentenced the accused/appellants as mentioned in para 1 of this judgment. 11. As per prosecution case, on the date of incident all the accused persons having formed an unlawful assembly, armed with club and stick intercepted the complainant party, abused them filthily and in furtherance of their common object assaulted the complainant Ishwar and Bhagwat, Horilal, Bhagbali, Urendra and Kirtam and also threatened them of life as a result of which all of them sustained simple injuries excluding Kirtam who sustained head injury and died on the spot. It is also an admitted position before the trial Court that on the complaint of accused Sunderlal a counter case was also registered against the complainant party Ishwar, Baglu @ Bhagwat, Urendra, Bhagbali, Virendra Kumar and Sitaram @ Krishna bearing ST No.15/2012 under Sections 147, 148, 324 in alternative 324/149, 294 in alternative 293/149 and 506B/149 of IPC. 12. PW-3 Ishwar, brother of deceased Kirtam, states that he is Panch of Ward No.12 at Village - Girdharikanpa. He contested election against accused Narendra Banjare and won by four votes as a result of which Narendra and his family members nourished animosity and ill- will against him and his family. On 7.5.2011 there was marriage of Ranjita, daughter of his cousin Pukal, so at around 4 pm he along with Bhagwat, nephew Mohan and son-in-law Daulat went to Kunda market on two motorcycles for buying DTH. However, while they were returning to their house and reached in front of house of Suresh Banjare, the accused persons Santosh, Anil, Gyani, Sunder, Suresh, Ganesh, Saheb and Gambir intercepted them, abused them filthily and started beating him and Bhagwat with club and stick as a result of which he sustained injuries over his legs. However, while they were returning to their house and reached in front of house of Suresh Banjare, the accused persons Santosh, Anil, Gyani, Sunder, Suresh, Ganesh, Saheb and Gambir intercepted them, abused them filthily and started beating him and Bhagwat with club and stick as a result of which he sustained injuries over his legs. They somehow escaped from their clutches and went to the house of his cousin Pukal but the accused persons following them reached near Middle School. By that time, Gangu, Rekchand, Deenu, Kalam, Sadeh, Hemlal, Rajesh, Matuk, Asha, Kuleshwar, Manoj and Tekram also reached near Middle School. Seeing the assault, his brother Kirtam came out of the house of Pukal who was also assaulted by the accused persons with club and stick. They also beat Horilal, Bhagbali, Bhagwat and himself when they came out of the house of Pukal. Due to this assault, Kirtam fell down on the ground and died on the spot itself. Thereafter, the accused persons fled from the spot. He lodged Dehati Merg Intimation Ex.P/3 and Merg Intimation Ex.P/4 which bears his signature from A to A part. In cross-examination this witness remained firm and reiterated that it is the accused persons who assaulted them with club and stick as a result of which they sustained injuries and Kirtam died. 13. The other witnesses namely PW-4 Manmohan, PW-5 Bhagwat Prasad Patle, PW-6 Urendra, PW-7 Horilal, PW-8 Pukal, PW-9 Ashok, PW-10 Daulat and PW-12 Bhagbali have supported the statement of complainant Ishwar (PW-3) and also stated that there was fight between the accused persons and the complainant party in which Kirtam sustained injuries, he fell on the spot and died and Ishwar, Bhagwat, Horilal, Bhagbali and Urendra also suffered injuries. 14. Dr. PL Kurre (PW-11) on 8.5.2011 examined the injured Bhagwat, Horilal, Bhagbali, Urendra and Ishwar vide Exs.P/53, P/54, P/55, P/56 & P/57. He noticed that Bhagwat sustained five injuries, Horilal sustained three injuries; Bhagbali suffered three injuries; Urendra suffered two injuries. All these injuries were simple in nature. He found that injured Ishwar received only one injury i.e. pain and swelling in left knee and advised for x-ray. He admits that if no fracture is found in x-ray, then all these injuries are simple in nature. The prosecution did not file any x-ray report in this case. 15. All these injuries were simple in nature. He found that injured Ishwar received only one injury i.e. pain and swelling in left knee and advised for x-ray. He admits that if no fracture is found in x-ray, then all these injuries are simple in nature. The prosecution did not file any x-ray report in this case. 15. Learned trial Court after due appreciation of the oral and documentary evidence including the medical evidence found that the accused persons committed rioting, wrongfully restrained the complainant party, threatened them of life and in furtherance of their common object, assaulted the injured persons thereby causing them simple injuries. Thus, conviction of the accused/appellants under Sections 147, 148, 341/149, 506B/149 and 323/149 being based on proper appreciation of overall evidence cannot be faulted with and the same is hereby affirmed. 16. As regards the offence under Section 302 of IPC, the complainant Ishwar Patle (PW-3) and other witnesses have stated that during the course of assault by the accused persons they sustained injuries and the deceased Kirtam also suffered injury, he fell down and died on the spot. PW-2 Dr. Keshav Kumar Dhruv conducted postmortem of the deceased on 8.5.2011 and noticed following injuries: i. contusion and blood clot found in left lateral angle of parietal region of size 5 cm x 2 cm and there was extra cranium haematoma, ii. contusion and blood clot seen at the middle of both side covered the parietal region 3 x 2 cm in size vertical shaped and extracranial haematoma seen in same region. iii. lacerated wound on the right forearm of size 3 x 3 cm. The autopsy surgeon opined that the cause of death was head injury and death was antemortem in nature. However, viscera was preserved for chemical analysis for confirmation. 17. As per the prosecution witnesses, all the accused persons assaulted the deceased with club and sticks, however, the postmortem report reveals that the deceased suffered only abovementioned three injuries. In para 2 the autopsy surgeon states that cause of death of the deceased is possibly shock as a result of head injuries. In cross- examination he admits that there was no brain injury. He states that death may occur due to shock and the shock can occur for various reasons such as due to fall, witnessing beating, over-agitation or snakebite. In cross- examination he admits that there was no brain injury. He states that death may occur due to shock and the shock can occur for various reasons such as due to fall, witnessing beating, over-agitation or snakebite. In para 5 he admits that the injuries suffered by the deceased could be due to fall and since the death was not homicidal, he did not mention nature of death and for ascertaining the actual cause, he sent viscera for examination. In para 8 he admits that the head injuries sustained by the deceased were not sufficient in the ordinary course of nature to cause death. As per FSL report (Ex.P/59), no poisonous substance was found in the viscera of the deceased. 18. It is a trite law that homicidal nature of death is a sine qua non for securing a conviction for the offence of murder. The prosecution must establish, beyond a reasonable doubt, that the death of the deceased was caused by the criminal act of another person, and did not result from natural causes, suicide, or an accident. The Hon’ble Supreme Court in the matter of Chandrapal Vs. State of Chhattisgarh reported in (2023) 16 SCC 655 held in para 13 of its judgment as under: “13. It is also needless to reiterate that for the purpose of proving the charge for the offence under Section 302 of IPC, the prosecution must establish “homicidal death” as a primary fact. In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death.” 19. Considering the facts and circumstances of the case, the manner in which the incident took place where the deceased sustained injuries, in particular the evidence of autopsy surgeon PW-2 Keshav Kumar Dhruve and the postmortem report (Ex.P/2), it stands established that the prosecution has failed to prove beyond reasonable doubt that death of Kirtam was homicidal in nature. However, learned trial Court did not appreciate all these evidence properly and held the accused/appellants guilty u/s 302/149 of IPC which is not sustainable in law. Therefore, looking to the nature of injuries sustained by the deceased, the accused/appellants are held guilty u/s 323/149 of IPC in place of 302/149 and are sentenced thereunder to suffer RI for one year. 20. Therefore, looking to the nature of injuries sustained by the deceased, the accused/appellants are held guilty u/s 323/149 of IPC in place of 302/149 and are sentenced thereunder to suffer RI for one year. 20. So far as quantum of sentence u/s 506B/149 of IPC is concerned, the accused/appellants have been in jail since May, 2011 and as such, till date have completed more than 3 years and 6 months jail sentence. They were granted bail by this Court on 9.10.2014 and nothing has been brought to the notice of this Court that they have misused the liberty so granted. Therefore, in the facts and circumstances of the case, this Court is of the opinion that no fruitful purpose would be served in sending them back to jail at this stage for undergoing the remaining sentence u/s 506B/149 of IPC and the ends of justice would be served if their sentence under this section is reduced to the period already undergone. 21. In the result, the appeal is allowed in part. Conviction of the accused/appellants under Section 302/149 of IPC is hereby altered to Section 323/149 of IPC and they are sentenced to undergo RI for one year. Their conviction under Sections 148, 341/149 & 323/149 of IPC and the sentence imposed thereunder by learned trial Court are maintained. However, while maintaining their conviction u/s 506B/149 of IPC, the sentenced imposed thereunder by learned trial Court is reduced to the period already undergone. Since all the sentences run concurrently, there is need to pass any order regarding their arrest, surrender etc. The appellants are reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023, each of the accused/appellants is also directed to furnish a personal bond for a sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 22. A copy of this judgment along with original record be transmitted to the concerned trial Court for information and compliance. 22. A copy of this judgment along with original record be transmitted to the concerned trial Court for information and compliance. A copy of this judgment be also forwarded to the concerned Jail Superintendent where the appellants are undergoing the sentence, for information and necessary action.