B.K. Patra, J.
1. The two appellants were convicted by the Sessions Judge of Mayurbhanj-Keonihar under Sec- 302/34, Indian Penal Code and Section 201/34, Indian Penal Code. For their conviction Under Section 302/34. I. P. C., each of them is sentenced to death. No separate sentence is passed against them for their conviction under Section 201/34. I. P. C., The appellants have filed appeals against their conviction and the Sessions Judge has made a reference under Section 374, Criminal P. C. for confirmation of the sentence of death passed against the appellants. The appeals and the reference have been heard together.
2. The prosecution case may be stated. The deceased Sahadeb Jena was working as a Forest Guard in the Barang beat. At about 7.30 a.m. on 16-6-1969, he along With Khetramohan Das (P. W. 3) Went towards the Barang reserve forest to see if there was any illicit felling of trees. On the way, they saw Kodanda Jena (P. W. 2) returning from the forest with a log of wood. On the direction of the deceased. Kodanda Jena left the log of wood by the road side and accompanied him to the forest. When this party had proceeded to some distance inside the Barang reserve forest, the deceased found a number of Sal trees which had been freshly cut lying on the ground. Hardly had they proceeded a few yards ahead when they noticed the appellant Raja Parida who was engaged in cutting a Sal Tree. The Forest Guard proceeded a few yards in advance of his companions and approached Raja Parida and demanded from him the permit to cut the tree. When Raja Parida told that he had no such permit, he was asked to accompany the Guard to the beat house. Thereupon, the deceased was rebuked and threatened by Raja Parida. Apprehending that further exchange of words with the appellant Raja Parida would involve him in trouble, the deceased came back from that place accompanied by P. Ws. 2 and 3. Raja Parida thereafter stopped cutting the tree and followed the deceased and his two companions. Raja's brother Hrusi Parida. the other appellant was also engaged in cutting a tree in the forest at a certain distance from the path by which the deceased was proceeding. On enquiry from Kodanda P. W. 2 who was walking a few spaces behind the deceased, Hrushi Parida came to learn that the Forest Guard had come and was going ahead. Hrushi rushed towards the deceased with an axe in his hand and gave a blow with the handle of the axe on the back of the deceased Forest Guard who fell down on the ground. Thereafter, Hrushi began to assault him on his legs and knee joints with the blunt side of the axe. Meanwhile, Raja arrived at the spot and gave a blow with the blunt side of his axe on the head of the deceased saying that he should be finished. As a result of the blow, the Forest Guard died. Thereafter on the direction of Hrushi, Raja and Kodanda carried the dead body towards the Bharadagadia hills and Hrushi also joined them in carrying the dead body. Meanwhile. P. W. 3 had escaped from the scene of occurrence and from behind a bush had observed all that had happened. At the time of removing the dead body. Hrushi asked Raja as to what happened to the other boy who came with the Forest Guard. At the mention of his name, Khetramohan (P. W. 3) out of fear ran away to a village nearby. The dead body after being carried for some distance was placed near a tree, and leaving P. W. 2 there, the two appellants went inside the forest to select a suitable place for the disposal of the dead body. Taking advantage of the temporary absence of the appellants, P. W. 2 ran away from the spot, noticing this, the two appellants threatened him from behind that if he would disclose the facts to anybody else, they would kill him and the members of his family. Thus being terrified P. Ws. 2 and 3 kept quiet over the matter.
2-A. On 22-6-1969. Gangadhar P. W. 1, the brother of the deceased came to Barang to meet his brother. On way to Barang he heard from certain villagers of mouza Angarua that his brother was assaulted in the forest by some, villagers of Beguniadihi and that after lodging information at the Police Station, he (deceased) went to the hospital. He then went to Ramchandrapur P. S. and learnt that no such information regarding assault on his brother had been lodged at the Police Station. On his report that his brother Sahadeb Jena had not been seen from 16-6-1969 and was reported to have been assaulted inside the forest, a station diary entry was made by the Assistant Sub-Inspector of Police (P. W. 11). On the direction of the Officer-in-charge, he made certain enquiries in the neighbouring villages and submitted the report Ext 3 on 23-6-1969 which was treated as the F.I. R. A case under Sections 302/201, ''I. P. C. was registered against the appellants and Kodanda Jena P. W. 2. During investigation, a search was made for the recovery of the dead body from Bharadagadia hill where it was alleged to have been thrown. No dead body was recovered but the Investigating Officer recovered a skull and some bones. Statements of P. Ws. 2, 3 and 4 under Section 164. Criminal P. C- were recorded by a Magistrate and after completion of the investigation, charge-sheet under Section 302/34, I. P. C. and Section 26 of the Indian Forest Act was submitted against the two appellants, who, after necessary enquiry, were committed to the Court of Session to* stand their trial.
3. The learned Sessions Judge relying on the evidence of P. Ws. 2 arid 3, who claimed to be eye-witnesses to the occurrence, and the evidence of P. W. 4, who stated that he had seen the two appellants carrying the dead body of the deceased towards the top of the Bharadagadia hill, convicted both the appellants under Sections 302/34 and 201/34, I. P. C. and sentenced them as stated above. He acquitted both of them of the charge under Section 26 of the Forest Act.
4. P. W. 3 Khetramohan Das is a boy of about 20 years. He has deposed that on the morning of the date of occurrence, on being requested by the deceased Forest Guard he accompanied him to the Barang reserve forest. On the way they met P. W. 2 Kodanda and on being asked by the Forest Guard, the latter also accompanied them to the forest. Leaving behind P. Ws. 2 and 3, the Forest Guard advanced to the place where Raja Parida was cutting the tree and asked him either to make over the axe to him or to accompany him to the beat. Raja, it seems, rebuked the guard and the latter came back where P. Ws. 2 and 3 were standing and all the three were coming back from the forest, while they were coming back, they saw the other appellant Hrushi Parida cutting a tree at another place. Hrushi enquired from Kodanda as to who were going with him and on being informed that the Forest Guard was going with them Hrushi came to the Rasta by which P. Ws. 2 and 3 and the deceased were going and gave a push on the back of the deceased with the but end of the axe. The Forest Guard fell down on the ground, and out of fear. P. W. 3 ran away and hid himself behind a tree. From there he saw that after the Guard fell down on the ground on being pushed by Hrushi, the latter assaulted him on knee joints and legs with the blunt side of the axe. At this point of time, Raja came there, and saying that the Forest Guard should be finished, gave a blow on the right side of the head over the right ear with the blunt side of the axe. The Gurad then began to groan in pain. Thereafter on the direction of Hrushi, Hrushi, Raja and Kodanda carried the dead body of the deceased towards the Hudi (hillock). At that point of time, Hrushi stated that the young boy (referring to P. W. 3) who came with the Forest Guard should be found out. On hearing this, P. W. 3 ran away to his village out of fear. The evidence of P. W. 3 is substantially corroborated by P. W. 2. He has added that when he and two appellants were carrying the dead body of the Guard towards the Hudi, they placed it on the ground and leaving P. W. 2 there, the two appellants went inside the forest to search for a suitable place for concealing the dead body. Taking advantage of the situation P. W. 2 ran away from the spot and while running away, the appellants threatened him that if he would disclose the facts to any body, he and his family members would be killed. P. W. 2 adds that being thus frightened, he did not disclose the facts to anybody till he was examined by the Police.
5. P. W. 4 is Naya Barik, a resident of Mouza Beguniadihi to which village both the appellants and P. Ws. 2 and 3 also belong. He stated that on the date of occurrence, he had been to Bharadagadia Hudi to tend his buffaloes and while he was there, he found at about noon that the two appellants were carrying the dead body of Sahadeb Jena, the Forest Guard towards the top of the Hudi. Sahadeb had uniform on his person. He stated that out of fear for the appellants he did not disclose about this incident to anybody till he was examined by the Police.
6. P. W. 3 says that on being frightened by what he had seen inside the forest he ran away to mouza Patna where he informed about the occurrence to Chinta Das and that subsequently from Patna he came to his own village where he. disclosed the fact to his father. Neither Chinta Das nor father of P, W. 3 have been examined in this case.
7. Admittedly, the dead body of the Forest Guard had not been recovered. If, however, the evidence of P. Ws. 2 3 and 4 is believed, there would not be any doubt that he is dead and that his death was brought about in the manner stated by the prosecution as disclosed from the evidence of P. Ws. 2 and 3. The question, therefore, is whether P. Ws. 2, 3 and 4 should be believed. Mr. P. K. Dhal learned Advocate for the appellants contends that P. Ws. 2, 3 and 4 should not be believed because -
(1) their statements were recorded under Section 164, Cr P. C. which raises a suspicion that they have not been voluntarily made, and consequently, the subsequent statement made by them in Court in conformity with the statements made by them under Section 164 Cr. P. C. must be viewed with suspicion,
(2) as these three witnesses have not disclosed to any one as having seen the perpetration of the crime, they should be regarded as accomplices and in the absence of any corroboration their statements should not be accepted as true.
8. In support of the first proposition, reference was made to the observation of Princep. J. in Queen Empress v. Jadub Das (1900) I.L.R. 27 Cal. 295 that a statement of witness obtained under Section 164 Cr. P. C. always raises a suspicion that it has not been voluntarily made and that the section was not intended to enable the Police to obtain a statement from some person and as it were to put a seal on that statement by sending in that person to a Magistrate practically under custody, to be examined in the judicial enquiry or trial and thereby more or less compel him to stick up to the statement already made. These observations were dissented from by the Andhra Pradesh High Court in (In re Gopisetti Chinna Venkata Subbiah : AIR1955AP161 ) and that Court and subsequently the Supreme Court in Ram Charan v. State of U.P. : 1968CriLJ1473 preferred to follow the following observation of the Nagpur High Court in Paramananda v. Emperor AIR 1940 Nag. 340;
We are of the opinion that if a statement of a witness is previously recorded under Section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under Section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon.
We are, therefore, unable to accept the contention of Mr. Dhal that simply because the evidence of P. Ws. 2, 3 and 4 had been recorded under Section; 164, Cr. p. C. we should look upon those statements and the subsequent statements made by these witnesses in Court with suspicion. We are also unable to construe the observations of the Nagpur High Court to mean that before such statements can be accepted there should be independent corroboration to it. Whether in a particular case such statements should be believed or not, must necessarily depend upon the facts and circumstances of the case. It was not even suggested to any of the three witnesses P. Ws. 2, 3 and 4, in this case, that there was nay undue pressure on them by the Police to make the statements under Section 164. Cr. P. C.... The occurrence in this case is said to have taken place inside the jungle. The only three witnesses who had seen either the whole or a part of the occurrence were suffering from a sense of fear for the appellants. It is only after the Police arrived at the village that these witnesses were emboldened to come forward to speak what they had seen. In these circumstances there seems to be no reason to discard the subsequent testimony given by them in the trial Court, merely on the ground that at an earlier stage their statements were recorded under Section 164, Cr. P. C.
9. In support of the other contention that P. Ws. 2, 3 and 4 having not disclosed immediately what they had seen, they are in the nature of accomplices and that their evidence cannot therefore be accepted without there being independent corroboration. Mr. Dhal relies on a decision of the Lahore High Court in Nawab v. the Crown AIR 1923 Lah 391 where a Bench of that Court held that a person who sees a murder committed and gives no information thereof, his evidence is little better than that of an accomplice. This extreme view propounded by the Lahore High Court does riot appear to be any more good law in view of the following observation of the Supreme Court in Vemireddy Satya-riaravan Reddy v. State of Hyderabad : 1956CriLJ777 . At pp. 380-81 their Lordships observed:
The learned Counsel urged that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded in law as an accomplice and that he could be put in the dock with the actual criminals. There is, however, no warrant for such an extreme proposition. On the other hand, the following short passage from Russel on Crime, 10th Edition, page 1346 will show its untenability:But a person may be present and, if not aiding and abetting, be neither principal nor accessory; as if A. happens to be present at a murder and takes no part in it, nor endeavours to prevent it. or to ' apprehend the murderer, this course of conduct will not of itself render him either principal or accessory.
Their Lordships were dealing with the evidence of a Dhobi boy P. W. 14. According to the evidence, he left his parent's roof after a quarrel with his father and while wandering in the jungles he was picked up by the communists only 3 days before and taken as their servant on promise to give him food. His main duty was to carry their bundles of clothes oh his head. It was this group of communists who were put on the trial for having committed the murder of one Vemkatakrishna Sastry. He was following this group carrying their bundle of clothes when they went to the village when they abducted Shastri and tied him with a rope. For a short while the captive Shastri was also left in charge of P. Ws. 14 and 2 or three others P. W. 14 was present when Shastri was throttled to death. P. W. 14 remained in the company of the assailants for three more days after the occurrence when he was brought back home by his father. Despite these circumstances, the Supreme Court rejected the contention of the appellants that P. W. 14 was in the nature of an accomplice, but in that particular case sought for corroboration of his evidence because -
though he was not an accomplice, we would will want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth.
The corroboration that their Lordships sought was not on the question of actual commission of the offence but corroboration on material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness. The nature of corroboration required in such cases is indicated in the leading case of Rex. v. Baskerville 1916-2 K.B. 658 (A) thus:
The corroboration need not be direct evidence that the accused committed the crime : it, is, sufficient if it is merely circumstantial evidence of his connection with the crime. The nature of the corroboration will depend on and vary according to the particular circumstances of each case. What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.
On perusing the judgment in Satyanarayan's case, it would be noticed that the Supreme Court did not consider the Dhobi boy P. W. 14 to be a person who is in the nature of an accomplice. They wanted some corroboration for his evidence not so much because he did not disclose the information immediately after the occurrence, but because he was the sole witness who spoke about the crime and it was considered unsafe to hang four people on his sole testimony unless there was some corroboration to it.
10. It is then argued by Mr. Dhal that P. Ws. 2, 3 and 4 being in the same category in the sense that none of them had disclosed about the occurrence to anybody for about a week, they cannot corroborate one another and corroboration must come from an independent source. He would have been right if the position of law had been that irrespective of the circumstances of a case if a witness does not disclose about the occurrence immediately after it had taken place, his evidence cannot be accepted without corroboration. But that does not appear to be the law. Even in Satyanarayan's case referred to above, the Supreme Court did not say so in respect of the evidence of the Dhobi boy P. W. 14. So far as this Court is concerned, the question whether a witness who having seen the occurrence had not disclosed about it. immediately to others should or should not be believed, has always been considered in the light of other circumstances of the case, the habits of the people etc. and the view has never been taken that the evidence of such a witness cannot be accepted without corroboration. The earliest of such cases is a Division Bench decision in Gurubaru Praja v. The King ILR (1949) 1 Cut 207 : AIR 1949 Orissa 67. That was a case in which there were three eye-witnesses to the occurrence but none of them disclosed anything about it before they were examined by the Police on the third day of the occurrence. It was contended that on this ground their evidence should not be believed. 'Repelling this argument Ray, C, J. said:
The members of the public are not yet conscious of their duty, either legally or morally, to render such assistance, legitimately and lawfully, as they can to bring the offender to justice. Besides as it appears from the evidence, the people of the locality were more or less afraid of Turkul and until the police called them and confronted them they would not feel inclined to get into the trouble as they thought it to be by speaking out what they saw.
and, the Court accepted the evidence of the eye-witness to uphold the conviction of the appellants. This view was affirmed by another Bench in State v. Dukhi Dei : AIR1963Ori144 . In that case, P. W. 2, the daughter of one of the accused was the sole eye-witness to the occurrence. She did not disclose about it to anybody till two days after the occurrence although on the very night of the occurrence she was questioned about it by her father. The contention that she could- not be believed was repelled by G. K. Misra, J. (as he then was). His Lordship stated-
The ghastly murder was committed in her presence and her mother was a party to it. Her statement in Court is that she was threatened not to disclose the offence to anybody by all the accused persons including her moher. It was therefore not unlikely that she did not disclose the, incident until police came on the scene. In Gurubaru Praja v. The King ILR (1949) 1 Cut. 207 : AIR 1949 Orissa 67, Ray, C. J. observed that in. consideration of the habits of the people of this country, particularly of the Undeveloped districts from which the case comes there is nothing unusual in the conduct of not disclosing the occurrence until the police arrives. With great respect I endorse this view. P. W. 2 could not be expected to divulge the hiatter to P. W. 5 and much less to her sister and father against her mother herself. No adverse inference therefore can be drawn.
A similar case came up for consideration before a Bench of this Court in Bihari Mandal v. State : AIR1957Ori260 . The accused in that case was a mulia appointed to water the pana bar alas of one S. W the wife of S went to the pana Baraja to give oil for bath to the accused, who caught hold of her and ravished her. A boy, who happened to be nearby, saw them and threatened the accused to report the matter to S. After a little quarrel, the accused caught hold of the boy and throttled him by the neck and the boy died on the spot. The accused hung the dead body of the boy to a tree, which was discovered by the police after a couple of days. On the fifth day after the incident. W related the whole story before the investigating officer but she did not disclose it to anybody not even to her husband during the five days. Although the evidence given by W was clear about the complicity of the accused, the Court refused to make it the basis of conviction. It is clear from the judgment that this view was taken not because W came up with the story five days after the occurrence but the Court considered W to be in the nature of accomplice and rightly sought for corroboration of her evidence. This case is therefore distinguishable. More recently in Rundu v. State 1970 (1) Cut WR 66 another Bench of this Court reiterated the view of Ray, C. J. in ILR 1949 Cut 207 : AIR 1949 Orissa 67. Our attention was invited to another Bench decision in Brahmananda Nanda v. State 1971 (1) CWR 251 to which one of us was a party. In that case, P. W. 6 claimed to be the sole eye-witness in a case in which the accused was charged for having committed the murder of six persons during the night : She did not disclose about the occurrence to anybody for more than two days on the ground that she was afraid of reprisal against her by the accused and his relations. But it appeared from evidence that the entire villagers gathered at the spot immediately after the occurrence and the Police also came there early next morning. One of the Police Officers happened to be distantly related to P. W. 6. But more than twenty-four hours elapsed even after the Police came to the village before P. W. 6 made the disclosure. In these circumstances, the Court did not accept the explanation of P. W. 6 that it was due to the fear of the accused and his relations that she did not make the disclosure and her evidence was not believed. This case, therefore does not lay down any proposition which goes counter to the view expressed in Gurubaru Praja's case and reaffirmed in certain subsequent decisions referred to above.
11. Having regard to the facts of this case we do not see any reason to. depart from this view. Doubtless. Section 44 of the Code of Criminal Procedure imposes on the public a duty to give information to the nearest Magistrate or the Police Officer of the commission of certain offences including that of murder. The failure to do so is made punishable under Section 202 of the Indian! Penal Code. But in spite of it, the natural tendency of the people even in urban areas is not to get mixed up in such matters, more due to indifference than out of fear in urban areas, and more out of fear than due to indifference in the rural areas. When we talk of rural areas there is no difference so far as this aspect is concerned between one district and another. If an offence is committed in presence of several persons even in a rural area, the position is different because already the occurrence is known to several persons and information is given to the concerned authorities. But where the occurrence is witnessed by one or two persons and has not received sufficient publicity, the natural tendency is to keep quiet till questioned about it. These are apparently the reasons why Courts are loath to lay down any rigid rule of law that witnesses who disclose the occurrence after lapse of some time should be disbelieved. Whether such witnesses should or should not be believed must therefore be decided with reference to the facts of each particular case taking into consideration all the relevant circumstances. So considered, we see no reason to disbelieve the testimony of P. Ws 3, and 4.
12. The case of P. W. 2 stands slightly on a different footing. It is clear from the evidence of P. W. 3 that P. W. 2 was himself coming out of the forest with a log of wood. He knew the appellants from before. In fact, when the deceased after having an encounter with appellant Raja was coming back from the forest it is P. W. 2 who was called by appellant Hrushi and asked as to who had come and it is P. W. 2 who told Hrushi that it was the Forest Guard. Admittedly. P. W. 2 had joined the appellants in carrying the dead body for some distance- Whether P. W. 2 did so out of fear or did so voluntarily is another matter. The statement of P. W. 2 that he subsequently ran away from the forest leaving the dead body under the tree and that he was threatened by the two appellants is not corroborated. Added to that in the F. I. R. Ext. 7 that was lodged, P. W. 2 had been shown as one of the accused. In the circumstances, there is some possibility of treating P. W. 2 as a person who was in the nature of an accomplice and if his evidence had stood alone, we would have found it difficult to accept the same without corroboration. But we find that what is stated by P. W. 2 regarding the commission of the offence by the appellants is corroborated by P. W. 3 and it receives support from the evidence given by P. W. 4. After a careful consideration of the evidence therefore we are satisfied that the evidence given by P.Ws. 2 and 3 regarding the circumstances under which the Forest Guard was killed is true.
13. The next question is what exactly is the offence which the appellants have committed. So far as the appellant Hrushi is concerned, the evidence shows that he first gave a push to the deceased on his back with the wooden handle of the axe as a result of which the deceased fell down and thereafter with the blunt edge of the Tangia Hrushi inflicted certain blows on the legs and knee joints of the deceased. Having regard to the weapon used and the part of the body on which blows were given, it is clear that he never intended to kill the Forest Guard. If that was his intention, nothing prevented Hrushi who was armed with a Tangia from giving a blow with the sharp edge of it on any vital part of the deceased. There is no evidence to show that when he gave him a few blows with the blunt edge of the Tangia on the legs and the knee joints, these blows resulted in fracture of any bone. There is nothing on record' to indicate that he ever intended to cause the death of the Guard or that he shared the intention with his brother Raja, even if the latter . had . the intention to kill the Guard. In the circumstances, he can be convicted only under Section 324, I. P. C. for voluntarily causing hurt to the deceased by dangerous weapon which admittedly the Tangia is.
14. The case against appellant Raja, however, stands on a different footing. Both P. Ws. 2 and 3 say that Raja came to the spot saying that the Guard should be finished . and struck a blow with the blunt side of the axe on the right side of the head of the Forest Guard and that minutes thereafter the Guard died. If really Raja intended to cause the death of the Guard, there is no reason why he did not use the sharp edge of the Tangia in giving the blow to the deceased. Merely because he said that the Guard should be finished, it does not necessarily mean that he intended that he should be killed. We are, therefore, not prepared td hold that the prosecution has proved beyond all reasonable doubt that Raja intended to kill the Guard. In this connection it is worth recapitulating the distinction between murder and culpable homicide not amounting to murder by referring to Sections 299 and 300. I. P. C. Section 299 is divided into three parts. The first part refers to the act by which the death is caused by being done with the intention of causing death. That part corresponds to the first part of Section 300. I. P. C. . The second part of Section 299, I. P. C. speaks of the intention to cause such bodily injury as is likely to cause death. This has corresponding provisions in clauses 'secondly' and 'thirdly' of Section 300, I. P. C. Section 304, Part I. I. P. C. covers cases which by reason of the Exceptions under Section 300 I. P. C. are taken out of the purview of Clauses (1), (2) and (3) of Section 300, I. P. C. but otherwise would fall within it, and also cases which fall within the second part of Section 299 but not within Section 300. Clauses (2) and (3). The third part of Section 299 corresponds to 'Fourthly' of Section 300. Section 304, Part II, I. P. C. covers those cases which fall within the third part of Section 299 but do not fall within the fourth clause of Section 300. As already stated, the case 'against Raja does not come under the first part of Section 300, I. P. C. Clause (2) of Section 300 is attracted only when the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. It includes cases of special knowledge of the constitution, constitutional defects or the ailments of the deceased. There is no evidence of the existence of such circumstances in this case. We do not have even evidence of the exact nature of the injury that is caused from which it is possible to infer that Raja had the knowledge that the injury which he intended to; inflict was likely to cause death. Clause (2) of Section 300, I. P. C. has therefore no application.
15. The next question is whether the injury is one which was intended to be caused and if so whether it was sufficient in the ordinary course of nature to cause death. If the injury caused is not in the ordinary course of nature sufficient to cause death, it is out of the purview of clause 'Thirdly' of Section 300, I. P. C. and would then appropriately fall under the second part of Section 299. I. P. C. Unfortunately in this case the nature of the injury caused on the deceased by the single blow given by appellant Raja is not known and much less is there any evidence that such blow is sufficient in the ordinary course of nature to cause death. In the circumstances, the appellant must have the benefit, of doubt and the case must go out of the purview of clause 'Secondly' and 'Thirdly' of Section 300, I. P. C. Surely the death of the deceased was not caused by the blow given on his legs and knees by the appellant Hrushi. It can therefore, safely be held that the deceased died as a result of the blow given on his head by Raja. That blow was given with, the blunt edge : of the Tangia on a vital part of the deceased, namely his head. The blow so given is neither unintentional nor accidental. In the circumstances of the case, the appellant Raja must be held to have intended to give such a blow as is likely to cause death. We would, therefore, hold that the appellant Raja is guilty under the first part of Section 304, I. P. C.
16. The evidence of P. Ws. 2, 3 and 4 clearly establishes that both the appellants removed the dead body of the Forest Guard and hid it in the hillock with a view to cause the evidence of the commission of the offence to disappear and as it transpires they have succeeded in causing the total disappearance of the evidence. They were, therefore, rightly convicted under Section 201, I. P. C.
17. In the result, we set aside the conviction of both the appellants under Section 302, I. P. C. and the sentence of death passed on them, and in lieu thereof, convict Raja Parida under Part I of Section 304. I. P. C. and sentence him to undergo rigorous imprisonment for eight years and convict Hrushi Parida under Section 324, I. P. C. and sentence him to undergo rigorous imprisonment for two years. The conviction of both the appellants under Section 201, I. P. C. shall stand but there is no need to impose any separate sentence on them for such conviction. The reference under Section 374. Cr. P. C. made by the Sessions Judge is discharged. In conclusion we would like ten place on record our appreciation of the able assistance rendered to us by Mr. P. K. Dhal engaged by the State to appear for the appellants.
S. Acharya, J.
18. I agree.