B.K. Patra, J.
1. The three appellant along with five others were put on trial before the Sessions Judge, Ganjam on charges under Sections 148, 149/302 and 302, I.P.C.. The five others were acquitted and the three appellants were convicted under Section 302 read with Section 34. I.P.C. and were sentenced to undergo R. I. for life.
2. The prosecution case in short is that on 22-3-70 there was a feast in village Muliguma. The villagers had sub- scribed and had purchased a goat for the feast. The goat was killed in the afternoon and its meat was being distributed. One Lakshman Sahara demanded that the deceased who was the headman of the village and who had the village fund with him should pay Rupees 10/- more to meet the balance of the cost of the goat purchased for the feast. The deceased paid Rs. 5/- and pleaded his inability to pay the balance immediately. He was thereupon dragged to the village road where he was assaulted by the appellants and others. Being afraid that he would be further molested the deceased, accompanied by his wife (P. W. 4) and their two minor children, started for the nearby village Padmapur to borrow Rs. 5/- from a friend of his and pay to the villagers. He was followed by the three appellants. Appellant No. 1 Anasi Sahara was armed with a lathi (M. O. Ill); Appellant No. 2 Sana Damba Sahara was armed with a knife CM. O. II) and Appellant No. 3 Majhia Damba Sahara was armed with a Tenta (iM. O. I). Hardly had the deceased and his wife and children proceeded a furlong from the village, the three appellants first assaulted P.W. 4 and she fell down on the road. Thereafter Appellant No. 3 Majhia Damba Sahara gave a thrust with his Tenta (M. O. I) near the left eye brow of the deceased. Appellant No. 2 Sana Damba Sabara assaulted the deceased with the knife (M. O. II) on the region of his left ear. Appellant No. 1 Anasi Sabara assaulted the deceased with the lathi (M. O. Ill) near the back of his neck. The deceased fell down. Thereafter the accused persons left the spot.
P. W. 4 got up and found her husband in a precarious condition. The deceased also informed her that he had been assaulted by the three appellants. The minor daughter of the deceased who was accompanying her parents then went back to village Muliguma and informed about the occurrence to her brother P.W. 3 and to her uncle P.W. 5, both of whom along with some other villagers hurried to the spot and found the deceased dead. The occurrence took place on the evening of the 22nd March, 1970. Next day, P.W. 3, the son of the deceased, went to mouza Gandahati where tihe mutha-head P.W. 7 resides. P.W. 3 handed over the written report Ext. 4 to the mutha-head who duly forwarded it to the Ramagiri -police station. Thereafter P.W. 7 accompanied by the Ward Member P.W. 8 went to the village Muliguma and questioned the appellants, who, according to the prosecution, admitted having assaulted and killed the deceased. The Sub-Inspector of Police received the report on 24-3-70 at about 5 P.M. After drawing up of the F. I. R. he came to the spot, held inquest over the dead-body and sent it for post-mortem examination The doctor P.W. 1'conducted autopsy on 27-3-70 and found the dead-body in a highly decomposed condition.
3. Appellant No. 2 Sana Damba Sabara produced a bamboo Lathi and a knife, respectively. M. Os. Ill and II and Appellant No. 1 Anasi Sabara produced a Tenta (M. 0. I) before P.W. 7 when he reached the village, P.W. 7 had handed them over to the Ward Member, P.W. 8, who produced them before the Investigating Officer who seized them. During investigation the sub-inspector recovered from the house of appellant Majhia Damba Sabara a shirt (M, O. IV) which was sent to the Chemical Examiner who detected stains of human blood thereon.
4. In due course the appellants and the five others accused persons were put on trial.
5. The appellants pleaded not guilty. While admitting the occurrence that took place in the village in the afternoon including the fact that they demanded Rs. 10/- from the deceased, they denied having assaulted the deceased that evening on the way to village Padmapur.
6. The sole eye witness to the occurrence is P.W. 4, the widow of the deceased. She categorically stated that while she, her husband and their two minor children were proceeding to Padmapur on the evening of the date of occurrence the three appellants came from behind and assaulted her first, and after she fell down they assaulted her husband with Tenta, Lathi and knife. After her husband fell down the accused persons left the spot. After they left she went near her husband and he told her that Majhia Damba Sabara, Sana Damba Sabara and Anasi Sabara had assaulted him. The learned Sessions Judge believed not only that P.W. 4 had seen the occurrence but also that the deceased shortly before his death had told her that the three appellants had assaulted him.
7. P. Ws. 7 and 8 have also deposed about the extra-judicial confession said to have been made before them by the three appellants. Excepting a slight discrepancy between the statements of P. Ws. 7 and 8 in that according to P.W. 7 the extra-judicial confession had been made by the three appellants and one Bada Majhi Sabara, according to P.W. 8 the confessional statement had been made only by the three appellants, there is no other reason why the evidence of P. Ws. 7 and 8 should be discarded, especially when the evidence given by P.W. 4 and the dying declaration made by the deceased as testified to by P.W. 4 lend assurance to the truth of the extra-judicial confession. In view of these circumstances the learned Sessions Judge was justified in coming to the conclusion that on the evening of the date of occurrence the deceased was assaulted by the three appellants while he was proceeding to Padmapur.
8. Unfortunately in this case the dead-body was in a high state of decomposition by the time the post-mortem examination was conducted by the Medical Officer P.W. 1. Although the Medical Officer could not in the circumstances find any external injury on the dead-body, on dissection he found that the left side mandible and the left mastoid bone of the deceased were found fractured into pieces. According to the doctor the death of the deceased was probably due to the aforesaid fracture. He has further opined that the fracture which jhe noticed could be caused by a heavy blunt weapon as well as sharp cutting weapons. That the injuries caused to the deceased resulted in his death is clear from the evidence of P.W. 4 who stated that shortly after her husband received the injuries he died. The medical evidence lends support to the prosecution case that the death was the direct result of the injuries sustained by the deceased. We are, therefore, satisfied that the death of the deceased was the direct result of the injuries received by the deceased.
9. The eight accused persons put on trial before the learned Sessions Judge were charged under Sections 148, 149/ 302, and 302, I.P.C. The trial court found that excepting the three appellants the prosecution had not been able to establish the charges against any of the other accused persons, and accused Nos. 3, and 5 to 8 were, therefore, acquitted. In view of his finding that there was no unlawful assembly the learned Sessions Judge acquitted these three appellants of the charges under Sections 148 and 149/302, I. P. C, and convicted them under Section 302 read with Section 34, I.P.C. Mr. Sutar, learned counsel appearing for the appellants, contends that Section 34, I.P.C. having not been added to the charges framed against the appellants and the only surviving charge against them being under Section 302, I.P.C. simplicter they cannot be convicted under Section 302 read with Section 34, I.P.C. The question raised by the learned counsel is no more res inte-gra Their Lordships of the Supreme Court in Lachhman Singh v. The State : 3SCR88 (have in similar circumstances, held that where the accused persons have been charged under Section 302 read with Section 149, I. P. C, they could, where some of the accused persons are acquitted, be convicted under Section 302 read with Section 34, I.P.C.
We had occasion to deal with a similar circumstance in Haramohan v. State of Orissa (1970) 36 Cut LT 731. There charge was framed against the accused persons under Section 302, I. P. C, simp-liciter, but the trial court convicted them under Section 302/149, I.P.C. It was contended that the conviction was illegal and it was further contended that when a charge had been framed under Section 302, I.P.C. only, there was no scope to convict them under Section 302/34, I.P.C. While accepting the first part of the contention that the charge being only under Section 302, I.P.C. the accused persons could not be convicted under Section 302/149, I.P.C. we rejected the second part of the contention and held after referring to the law on the subject that the accused persons, having regard to the facts of the case, could be convicted under Section 302 read with Section 34, I.P.C. Similar circumstances exist in the present case. All the three appellants had been charged under Section 302, I.P.C. for having caused the death of the deceased at the same time and place, Therefore they knew it right from the beginning that each of them was being tried with reference to the same incident. That being the case, there cannot be any difficulty in convicting them under Section 302 read with Section 34, I.P.C.
10. In the result we find no merit in this appeal which is accordingly dismissed.
S. Acharya, J.
11. I agree.