B.K. Behera, J.
1. The three appellants Makunda alias Magnia Suna, Ramdas alias Budu Suna and Alekha Suna, besides two other persons, namely, Daya Suna and Dhanmat Suna, stood trial in the court of Mr. K. P. Mohapatra, Sessions Judge, Balangir-Kalahandi, being charged under Section 302 read with Section 34 and Section 307 read with Section 34 of the I.P.C (for short, the 'Code') on the allegations that sometime past 8 p.m. on Nov. 21, 1977, at Karuanjhar in the district of Balangir, the appellants and the co-accused persons, in furtherance of their common intention, committed the murder of Dulava Suna (hereinafter described as the 'deceased') who had land dispute with the accused persons and attempted to commit the murder of his son-in-law Nrupa (PW 7) by severely assaulting them by means of Katari and lathis when the deceased and PW 7 reached the village of the deceased after the deceased got an order in his favour under Section 145 of the Code of Criminal Procedure in a court at Balangir. On the basis of the report lodged at the Bandhapara police outpost within the area of the Tusra police station by Sapneswar (PW 5), the son of the deceased, who was not a witness to the occurrence, but had seen his father lying dead after the murderous assault on him, the Assistant Sub-Inspector of Police (PW 9) made an entry in the station diary, sent a copy of it to the police station and proceeded and guarded the place of occurrence. Under the direction of the Officer-in-charge of the Tusra police station, he took charge of the investigation which was subsequently taken up by the other police officers including PW 13 who submitted the charge-sheet on the completion of investigation.
2. To bring home the charges, the prosecution had examined fourteen witnesses of whom PWs 1 to 3 and were the witnesses to the occurrence. PW 5 was the first informant. PW 4, the Ward member of the village, had testified about the land dispute between the parties. PW 8 was the doctor who had conducted autopsy over the dead body of the deceased brought to him by the police constable (PW 6), as per his post-mortem report (Ex. 4). He had examined the injured Nrupa (PW 7) and had noticed an abrasion on his forehead, simple in nature, as per his injury report (Ext. 6). PWs 9 to 14 were the police officers who had taken part in the investigation of the case.
3. The appellants and the co-accused persons had pleaded not guilty to the charges and according to them, a false case had been foisted. They had not examined any witness on their behalf.
4. The learned Sessions Judge, on a consideration of the evidence, found that no case had been made out against the accused Daya and Dhanmat and accordingly they were acquitted of the charges. Accepting the case of the prosecution that the three appellants, in furtherance of. their common intention, committed the murder of the deceased, the learned Judge convicted them under Section 302 read with Section 34 of the Code and sentenced each of them thereunder to undergo rigorous imprisonment for life. The learned Judge recorded a finding that the charge for attempt to murder had not been established against the appellants and the other co-accused persons, but the appellant Magnia alias Makunda was guilty of the offence of voluntarily causing hurt to Nrupa (PW 7) and he was accordingly convicted under Section 323 of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of one year with a direction that the sentence passed under Section 323 of the Code would run concurrently with the sentence passed under Section 302 read with Section 34 of the Code.
5. Mr. Anil Deo appearing on behalf of the appellants has taken us through the evidence and has submitted that no case had been made out in respect of any of the offences against any of the appellants. He has, however, submitted that if this Court, accepting the finding recorded by the trial court, holds that any of the appellants had assaulted the deceased, he could be convicted for voluntarily causing hurt arid neither for the offence of murder nor even for the offence of causing grievous hurt. Mr. A. Rath, the learned Additional Standing Counsel, has submitted that the evidence of PWs 1 to 3 and 7 would clearly establish that the, three appellants assaulted the deceased and the appellant Magnia had caused hurt to PW 7. He has, however, submitted that in the absence of evidence to show as to who was the person who dealt the only fatal blow on the person ; of the deceased by means of a Katari, a sharp cutting instrument, which had resulted in his death, it would be difficult to come to a finding that the three appellants had shared' the common intention with that person to commit the murder of the deceased and therefore, the three appellants would be liable for the acts committed by them.
6. It admits of no doubt from the evidence of the doctor that the deceased had died a homicidal death. It is not disputed at the Bar that there had been land dispute between the deceased on the one hand and the accused persons on the other. The deceased was a brother of Dhanmat. The appellants Alekha and Ramdas and the co-accused Daya are the sons of Dhanmat and the appellant Magnia is the son of another brother of Dhanmat,
7. As regards the assault on the. person of PW 7 by the appellant Magnia, there was, in the first place, the clear and trustworthy evidence of PW him self who had implicated this appellant as his assailant by means of a lathi. This evidence of his would find assurance from his immediate statement to PWs 1 and 2 in this regard and the medical evidence. Besides, mention had been made by PW 5 regarding this assault on PW 7 in the first information report on the basis of the information given by PW 7. We are at one with the learned Sessions Judge that this appellant was guilty of voluntarily causing hurt to PW 7 by means of a lathi and was, therefore, rightly convicted under Section 323 of the Code.
8. Coming to the assault on the person of the deceased which had resulted in his death, we notice from the medical evidence that there was an incised wound on the left temporal bone of the skull above the left eye besides five lacerated wounds. On dissection, the doctor had noticed fractures of the left maxilla and teeth, mandible bone and nasal bone. Subdural and intracerebral haemorrhage had also been noticed. According to the doctor, the incised wound could be caused by a sharp cutting instrument like a Katari and the other injuries could be caused by hard and blunt objects, such as, lathis.
9. PWs 1 and 2, the co-villagers, who, as would appear from the evidence, were disinterested persons and independent witnesses, had made clear, cogent and consistent statements to the effect that they had seen two of the appellants, namely, Alekha and Mag-nia, assaulting the deceased by lathis, while the latter was lying on the ground, with the light of a petro-max light burning nearby which was brought by PW 2 to the spot. Nothing substantial had been brought out in their long drawn-out cross-examination to discredit their testimony in this regard. It is important to note that they had not specifically implicated the other appellant Ramdas alias Budu Suna as one of the assailants of the deceased. The evidence of PWs 1 and 2 with regard to the assault by the appellants Alekha and Magnia on the person of the deceased had also been supported by PW 3 Debraj alias Dadhua Padhan, but this witness had also implicated Budu as one of the assailants of the deceased. He had claimed to have informed PWs 1 and 2 that the appellant Budu was also one of the assailants of the deceased, but PWs. 1 and 2 had not supported him in this regard. PW 7, the son-in-law of the deceased and one of the victims of assault, who would naturally be highly interested for a successful termination of the case against the appellants and the coaccused persons, had given evidence that after he was assaulted by the appellant Magnia, the three appellants, all armed with lathis, chased his father-in-law and assaulted him while chasing. This part of his evidence with regard to the assault by the three appellants while chasing the deceased had not been supported by any other evidence. In view of the infirmities in the evidence with regard to the participation by the appellant Budu in the assault on the person of the deceased, the learned Sessions Judge was wrong in accepting the case of the prosecution against this appellant. We are, however, convinced, on the evidence on record, that the two appellants Magnia and Alekha had assaulted the deceased by means of lathis on his person.
10. The next question for consideration would be as to what offences had been committed by the two appellants. An argument had been advanced on behalf of the defence before the learned Sessions Judge that as the assailants who had assaulted the deceased by means of lathis had done so after the fatal blow on the head of the deceased by means of a sharp cutting instrument had been inflicted after which the deceased was likely to have met with an instantaneous death, no offence had been committed by the assailants for assault on a dead person. The learned Sessions Judge negatived this contention and in our view, rightly so, especially in view of the evidence of the doctor that he had noticed antemortem injuries on the person of the deceased which could be caused by lathis and there was no evidence that post-mortem injuries had also been noticed on the person of the deceased,
11. The learned Sessions Judge did not accept the legal contention raised on behalf of the defence that there was no evidence to show that any of the accused persons had shared the common intention of committing the murder with another person who had been armed with a Katari and had dealt the fatal blow on the person of the deceased and therefore, none of them could be held liable for the offence of murder by applying Section 34 of the Code and those of the appellants who had assaulted the deceased by means of lathis could, at best be convicted for causing grievous hurt punishable under Section 325 of the Code. Reliance had been placed by the learned Advocate appearing for the accused persons on the principles laid down in : 1977CriLJ164 . Ashok Kumar v State of Punjab and : 1977CriLJ1602 , Chilamakur Nagireddy v. State of Andhra Pradesh, While rejecting this contention, the learned Judge observed that the evidence clearly showed that- the appellants had been actuated by common intention in committing the murder of the deceased. We are of the view that the learned Sessions Judge had not properly applied his mind to this legal contention raised by the defence which ought to have been accepted.
12. It was not the case of the prosecution and there was no evidence that the blow dealt by any of the appellants had resulted in the death of the deceased. There was but one fatal blow which was an incised wound on the head of the deceased and this could be caused by a sharp cutting instrument. None of the appellants was armed with any sharp cutting instrument. There was no evidence that at the time of assault by the two appellants, namely, Magnia and Alekha, by means of lathis, any one else was assaulting the deceased by a sharp cutting instrument like a Katari in their presence or within their view. The evidence would lead one to a reasonable conclusion that sometime prior to the assault by these two appellants on the head of the deceased by means of lathis, someone had dealt a fatal blow by a sharp cutting instrument on the head of the deceased which resulted in his death. The investigating agency had not been able to unearth as to who that person was. The specific charge against the appellants and the other co-accused persons was that five of them, in furtherance of their common intention, had committed the murder of the deceased. It had not been stated in the charge that they had shared the common intention with some one else also.
13. As has been observed by this Court in Moti Gouduni v. State 1982 Cri LJ 2342, Section 34 of the Code can be applied when a criminal act is done by several persons in furtherance of the common intention of all of them. This section lays down a principle of joint liability in the doing of a criminal act and that liability is to be found in the existence of common intention animating the accused persons leading to the doing of a criminal act in furtherance of such intention. In the instant case, the deceased had died of a fatal injury caused by a sharp cutting instrument not attributable to any of the appellants and there was complete absence of evidence as to who had caused that injury. None of the other injuries found on the person of the deceased which could be caused by lathis with which the two appellants Alekha and Magnia had assaulted the deceased was fatal in nature although the assault by means of lathis had resulted in some fractures. In the absence of any evidence as to who had caused the fatal wound and had thus, committed the murder of the deceased, it would not be reasonable, legal and proper to hold the appellants or any of them guilty of the charge of murder by applying Section 34 of the Code because of paucity of evidence that they had shared the common intention with that person. In our view, the learned Sessions Judge completely went wrong in recording an order of conviction of the appellants under Section 302 read with Section 34 of the Code.
14. Besides the fatal incised wound on the head, there were five lacerated wounds, three of which had caused fractures of the left maxilla and teeth, mandible bone and nasal bone. These injuries were grievous in nature within the meaning, of Section 320 of the Code. The appellants Magnia and Alekha had dealt blows by lathis on the head of the deceased. As the medical evidence would clearly show, the fractures had resulted from the assault on the head by means of hard and blunt objects, such as, lathis. The acts and conduct of these two appellants would undoubtedly establish that they had, in furtherance of their common intention, assaulted on the head of the deceased and had caused grievous hurt to him. They are, therefore, liable to be convicted for causing grievous hurt punishable under Section 325 read with Section 34 of the Code.
15. In the result, we would allow the appeal in part. The order of conviction and sentences passed against all the appellants under Section 302 read with Section 34 of the Code is set. aside. We have found the appellant. Ramdas alias Budu Suna not guilty of the commission of any offence. The other two appellants, namely, Makunda alias Magnia Suna and Alekha Suna are convicted under Section 325 read with Section 34 of the Code for causing grievous hurt to the deceased and each of them is sentenced thereunder to undergo rigorous imprisonment, for a period of three years. The order of conviction passed against the appellant Makunda alias Magnia Suna under Section 323 of the Code for causing hurt to Nrupa (PW 7) is maintained, but no Separate sentence is passed against him thereunder. The appellants Makunda alias Magnia Suna and Alekha Suna have remained in custody for periods longer than the terms of imprisonment now imposed by us. The three appellants shall be set at liberty forthwith.
P.K. Mohanti, J.
16. I agree.