B.K. Behera, J.
1. The appellants Kesab Sahu and Bisikesan Sahu who are brothers and the other two appellants have been convicted under Section 302 read with Section 34 of the I.P.C. for having committed the murder of the deceased Dina-bandhu Naik at village pingabaru in the district of Ganjam in furtherance of the common intention of all of them on July 23, 1977 when the deceased protested against the action of the appellants Kesab, Bisikesan and Gajendra going upon the land of Mian Majhi (P. W. 4) and forcibly ploughing the land while the othsr appellant Udeswar Patro was watching his paddy seedlings on a land nearby and it was alleged, the appellant Gaj,endra caught hold of both the hands of the deceased and the appellants Kesab and Bisikesan assaulted the deceased on his head by means of axes and when the deceased was being carried by Amar Singh and Baliar Singh (P. W, 2), two sons of the deceased, the appellant Udeswar came to the spot running with an axe and dealt a blow by it on the head of the deceased and when he attempted another blow, P. W. 1 resisted and as a result, sustained an injury on his left hand. The assault by the appellants resulted in the death of the deceased on the spot. The first information report (Ext. 1) was lodged by P. W. 1 on the basis of which the investigation was taken up and on its completion a charge-sheet was placed.
2. The plea of the appellants was one of denial and false implication.
3. At the trial, the prosecution had examined nine witnesses to bring home the charge to the appellants of whom P. W. 1 Jhapata alias Mohan Naik, P. W. 2 Baliarsingh Naik, two sons of the deceased, P. W, 3 Dhanasti Naik who had been ploughing the land along with P. Ws, 1 and 2 and Mian Majhi (P. W. 4), whose land was in cultivating possession of the deceased in the year 1977, had been examined as witnesses to the occurrence. The appellants had not examined any witness on their behalf. The learned Additional Sessions Judge accepted the case of the prosecution and recorded the order of conviction of the appellants under Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to undergo imprisonment for life.
4. Mr. Rangadhar Behera, the learned Advocate appearing on behalf of the appellants, has submitted that the findings recorded by the trial court against the appellants were unfounded. It has however, been submitted by him. that in case the allegations against the appellants are accepted, they may be convicted under Section 324 read with Section 34 of the Indian Penal Code as they had neither the common intention to commit the murder of the deceased nor to cause grievous hurt to him. Mr. Patra, the learned Additional Government Advocate, has submitted that on the evidence on record, no order of conviction could be recorded under Section 302 read with Section 34 of the Indian Penal Code, but the appellants could properly be convicted under Section 326 read with Section 34 of the Indian Penal Code.
5. P. Ws. 1 and 2, the two sons of the deceased and P. Ws. 3 and 4 had all testified that when the deceased asked the appellant Kesab as to how they had been cultivating the land of Mian Majhi, the appellant Gajendra caught hold of both the hands of the deceased and thereafter, the appellant Bisikesan dealt a blow on the head of the deceased by means of an axe as a result of which he fell down and when he tried to get up, the appellant Kesab dealt another blow by means of an axe on his head. It would also be clear from their evidence that when the two sons of the deceased tried to take the deceased away, the appellant Udeswar who had been watching his field at some distance, came running with an axe and dealt a heavy blow on the head of the deceased as a result of which, the deceased fell down on the ground. Their consistent evidence was that this appellant Udeswar attempted to deal another blow on the deceased and P. W. 1 tried to ward it off as a result of which he sustained an injury on his left hand. Their evidence would show that the deceased died on the spot. Nothing had been brought out in their cross-examination to discredit their evidence and merely because P. Ws. 1 and 2 are the sons of the deceased and P. W. 3 had been ploughing the land of Mian Majhi along with P. Ws. 1 and 2, their evidence was not to be discarded and had rightly been accepted by the trial court. The evidence of the Medical Officer (P. W. 6) was not by itself, conclusive to show that the deceased died a homicidal death as it would appear from his evidence that he conducted the autopsy over the dead body of the deceased on July 26, 1977 when the dead body was in a high state of decomposition and describing as to what he had noticed, he had deposed thus:.On examination I found the following injuries.
(1) Fracture of mandible at its middle on the left side.
(2) Fracture of frontal, parietal and occipital bone on the left side. The bones were loose and the cranial cavity was exposed and empty. Right side of the skull was intact. Injuries whether ante-morlem or post-mortem could not be assessed due to severe decomposition. Time interval between time of death and P. M. examination is 3 to 6 days. Injuries might have been caused by hard object, sharp or blunt could not be known as there is no evidence of soft tissue injury. Opinion - the cause of death might be due to haemorrhage and shock due to head injury if inflicted during life. Ext. 4 is my report. Due to decomposition, the soft tissue injuries if any could not be detected. On 20-7-1977 Dr. C. B. Sethi was in charge of the Belgarh Hospital.
Coupled with the evidence of P. Ws. 1 to 4, however, it would be seen that the injuries noticed by the Medical Officer could be ante-mortem in nature and there could be no doubt from the evidence that the assault by the appellants had resulted in the death of the deceased.
6. Besides the oral evidence of P. Ws. 1 to 4 given in the court, in the first information report lodged by P. W. 1, he had named the appellants as the authors of the crime and this would corroborate the evidence of P. W. 1 given in the court. We also notice from the evidence that the bloodstained Tangi (M.O. V) produced by the appellant Kesab at the police station and his banian (M.O. VI) and Lungi (M.O. VII) seized by the Officer-in-Charge (P. W. 9) of the Belgarh Police Station when this appellant had come to the police station with the bloodstained Tangi (M.O. V). On chemical examination, were found to contain blood although the origin could not be determined on serological test. This would also lend some assurance to the evidence of the eye-witnesses that this appellant was one of the assailants of the deceased.
7. Having carefully considered the evidence, we would accept the finding recorded by the trial court that the appellant Gajendra caught hold of the hands of the deceased who was assaulted first by the appellants Kesab and Bisikesan and then by the appellant Udeswar by means of axes which resulted in his death on the spot.
8. The next question for consideration would be as to what would be the offence committed by the appellants.
9. The evidence of the Doctor would show that there had been fractures of the mandible at its middle on the left side and of the frontal, parietal and occipital bones on the left side. It would be difficult to say from the evidence as to whose blow had caused the fatal in-iury. The evidence would show that the attack on the deceased was first by three of the appellants, namely, Gajendra who caught hold of both the hands of the deceased and Kesab and Bisikesan. When the deceased was being taken away from the spot, the other appellant came and assaulted him by means of an axe. It could, therefore, be said that all the four appellants had shared the common intention to commit the murder of the deceased. To attract Section 34 of the I.P.C. not there must be prior meeting of the minds and a prearranged plan. The common intention may also develop on the spot. The evidence falls far short of the mark to establish common intention among all the appellants to commit the murder of the deceased. As it is not conclusive from the medical evidence that the assault on the person of the deceased by the appellants Kesab and Bisikesan when the appellant Gajendra caught hold of him could have resulted in the death of the deceased, these three appellants, by themselves, could not also be attributed, on the facts and in the circumstances of the case, with the common intention to commit the murder of the deceased. There could, however, be no doubt that the appellants Gajendra Kesab and Bisikesan had the common intention to cause grievous hurt to the deceased by means of cutting instruments as one of them caught hold of the deceased and the two others assaulted him on his head causing fractures. These three persons could legally and properly be convicted under Section 326 read with Section 34 of the Indian Penal Code as the facts, evidence and circum- stances of the case would show that ' their common intention to cause grievous hurt to the deceased had developed on the spot. The appellant Udeswar could not be said to have shared the common intention with the other appellants and he could be punished for his own individual act. As the evidence would show, he had dealt a heavy blow on the head of the deceased by means of a dangerous instrument, such as, an axe, which had resulted in the fractures noticed by the doctor. He could, therefore, be convicted under Section 326 of the Indian Penal Code. As the assault on the person of the deceased on his head had caused fractures, the contention raised on behalf of the appellants that if the prosecution case if accepted, they could only be convicted for voluntarily causing hurt punishable under Section 324 of the I.P.C. cannot be accepted.
10. In the result, therefore, the appeal is allowed in part. The order of conviction and sentence passed against each of the appellants under Section 302 of the Indian Penal Code is set aside and in lieu thereof, the appellant Gajendra, Kesab and Bisikesan are convicted under Section 326 read with Section 34 of the Indian Penal Code and the appellant Udeswar is convicted under Section 326 of the Indian Penal Code and each of these appellants is sentenced thereunder to undergo rigorous imprisonment for a period of five years which sentence, in our view, would meet the ends of justice.
P.K. Mohanti, J.
11. I agree.