B.K. Behera, J.
1. The appellant Harihar, his brothers Makhnu and Srikar, his sons Safei (appellant) and Souki and Kartika alias Bidyadhar, the son-in-law of Makhnu, stood trial in the court of the learned Sessions Judge, Sambalpur, being charged Under Section 148 of the I.P.C. (for short, the 'Code') for being members of an unlawful assembly and for having committed rioting being armed with deadly weapons, such as, Tabal, axes, spear and lathis, Under Section 302 read with Section 149 of the Code for committing the murder of Gurucharan Singh (hereinafter referred to as the 'deceased') in furtherance of their common object by assaulting him to death and Under Section 323 read with Section 149 of the Code for voluntarily causing hurt to Bhola Singh (P.W. 13) in furtherance of their common object on Aug. 7, 1979, in village Bichhuan in the district of Sambalpur. The acts were committed by the appellants, as alleged, because of a long standing dispute over the possession of a piece of land between the accused persons on the one hand and P.W.13 and his father on the other, for which criminal litigation was pending at the time of the occurrence and this land had been given on 'chhidol' basis for the year by P.W.13 to P.W.3 who had ploughed the land with his brother-in-law Srihari (P.W. 6) and his field servant Harihar Behera (P.W. 8) earlier to the day of occurrence. The first in formation report was lodged by Thakura Singh (not examined), who was not a witness to the occurrence and on the basis of this report (Ext. 3), investigation was taken up and a charge-sheet was placed by the investigating agency. The appellants denied the charges. According to them, the witnesses were interested for the prosecution and were on inimical terms with them for which they had falsely involved them.
2. Of the fifteen witnesses examined by the prosecution, P.W. 1 was the doctor who had conducted the autopsy and P.Ws. 3, 6 to 8, 13 and 14 had been examined as the witnesses to the occurrence. P.W.15 had investigated into the case after receipt of the first information report by the Assistant Sub-Inspector of Police (P.W. 4). P.Ws. 5 and 11 had testified about the extra judicial confessions said to have been made by the two appellants. In the course of investigation, P.W.15 had seized an axe (M.O.I) from the house of the accused Srikar and an axe (M.O. II) and a lathi (M.O.III) from the house of the accused Makhnu. The appellants and the co-accused persons had not examined any witness on their behalf.
3. On a consideration of the evidence, the learned Sessions Judge found that the charges that the accused persons were members of an unlawful assembly being armed with deadly weapons for the commission of the murder of the deceased and for causing hurt to P.W. 13 in furtherance of their common object framed against all the accused persons had not been brought home to them, but that the two appellants Harihar and Safei were liable to be convicted for committing the murder of the deceased. The two appellants were convicted Under Section 302 of the Code and sentenced thereunder to undergo imprisonment for life.
4. Mr. J.P. Mishra, the learned Counsel for the appellants, has not challenged the finding recorded by the trial court that the death of the deceased was homicidal in nature in view of the clear evidence of the doctor (P.W. 1) who had conducted the autopsy and had noticed a number of ante-mortem external injuries with consequential internal injuries fatal in nature.
5. The evidence against the appellants consisted of the evidence of eye-witnesses, extra-judicial confessions and recoveries of some articles from the house of some of the accused persons. The recoveries were of no consequence as the accused persons from whose houses the alleged instruments had been recovered had been acquitted of the charges. In addition, there was no specific evidence that any of the three instruments (M.Os. I to III) had been used while assaulting the deceased. As regards the extra-judicial confessions, the prosecution had relied on the evidence of P.Ws. 5 and 11. As would appear from the evidence, all was not well between P.W. 11 on the one hand and the appellants on the other and he had figured as a witness in a criminal case against them. P.Ws. 5 and 11 had given evidence that when they went to the spot after hearing about the occurrence, both the appellants gave out that they had killed the deceased. While according to P.W. 5, the appellants stated that they had killed the deceased when he and P.W. 11 went to the spot the evidence of P.W. 11 was that the appellants had made the statements while he and P.W. 5 had been returning from the spot. P.W. 5 had not stated to the Investigating Officer that the two appellants had admitted to have killed the deceased. This could not be said to be an inconsequential omission in his statement in the course of investigation. In the absence of any evidence that P.Ws. 5 and 11 were in their confidence, it was highly unlikely that the two appellants would have blurted out before them that they had killed the deceased. Regard being had to these features in the evidence, it must be held that the evidence on which reliance had been placed by the prosecution with regard to the extra judicial confessions could not be accepted.
6. There thus remains for consideration the evidence of the witnesses to the occurrence. Mr. Mishra for the appellants has strenuously urged that the evidence led by the prosecution in this regard was that of highly interested witnesses belonging to a hostile faction and regard being had to the discrepancies in their evidence of which due notice had not been taken by the trial court, the appellants could not be found to be guilty of the offence of murder. It has also been submitted by him that as the appellants had been charged Under Section 302 read with Section 149 of the Code and the other co-accused persons had been acquitted, the two appellants could not legally be convicted for the substantive offence of murder Under Section 302 of the Code or for the offence of murder by the application of Section 34 of the Code. Mr. D.P. Sahoo, the learned Standing Counsel has taken us through the relevant evidence and has contended that the discrepancies in the evidence of the witnesses to the occurrence were of inconsequential character as rightly noticed by the learned Sessions Judge and the evidence of the eye-witnesses would read well and was clear and acceptable. The discrepancies with regard to the minor details of the occurrence were but natural, as submitted by Mr. Sahoo. It has been contended by him that the order of conviction recorded against the appellants is legally sustainable and on the evidence on record, the appellants could as well be convicted Under Section 302 read with Section 34 of the Code by this Court.
7. P.Ws. 3, 6 to 8, 13 and 14 are 'the witnesses to the occurrence. P.Ws. 3, 6 and 7 are the son-in-law, son and widow respectively of the deceased. P.W. 8 was the field servant of P.W. 3 at the relevant time. P.W. 13 was the Mitra (friend) of the deceased and as deposed to by him, the appellants and other accused persons are his agnates. P.W. 14, who had acquaintance with the deceased, had come and had been staying with and had accompanied the deceased to the land where the occurrence took place. Of these witnesses, the evidence of P. W. 13 would indicate that all was not well with him on the one hand and the appellant Harihar on the other and there had been litigation and criminal proceedings between the two. His evidence requires careful scruting before acceptance. The evidence of P.Ws. 3, 6 and 7 is, no doubt, that of the relations of the deceased, but they were natural and competent witnesses who would normally be on the scene. The evidence of the relations of the deceased may be examined with care, but cannot be discarded solely on the ground of their relationship with the deceased. The mere fact that P.W. 8 was the field servant of P.W. 3 at the relevant time would not render his evidence suspicious and it could not be characterised as interested evidence. The evidence of P.W. 14 is not to be thrown out on the ground that he is a 'chance' witness as he had gone to the house of the deceased and had accompanied him to the spot. He was thus a competent witness. P.W. 13 had sustained an injury during the occurrence for which a charge Under Section 323 read with Section 149 of the Code had been framed against the accused persons. As deposed to by the eyewitnesses, P.W. 13 had sustained an injury during the occurrence and this would show his presence on the spot.
8. On a careful consideration of the evidence of these witnesses, the learned Sessions Judge has accepted it against the two appellants while holding that the evidence against the other accused persons was not consistent and of an omnibus character.
9. Although the son-in-law of the deceased (P.W. 3) did not support the case of the prosecution fully and had been put leading questions by it Under Section 154 of the Evidence Act, he had, while being put questions by the prosecution, testified that the appellant Harihar had assaulted the deceased by means of a Tabal. The evidence of P.W. 6 was that after Harihar assaulted the deceased by means of a Tabal and he fell down, all the accused persons surrounded and assaulted him. While in his evidence, he had stated that the appellant Harihar had dealt two blows by means of a Tabal, he had stated in the course of investigation that this appellant had dealt one blow. This could not be said to be a material contradiction in order to discredit his evidence. The evidence of P.W. 7 in the court was that the appellant Harihar had assaulted the deceased by means of a Tabal, but she had not stated this in her statement in the course of investigation. Her evidence would, however, clearly show that the appellant Safei had assaulted the deceased by means of an axe. There was the clear and cogent evidence of P.W. 8 that the appellant Harihar, by means of a Tabal and the other appellant Safei, by means of an axe, had assaulted the deceased to death. This was also the evidence of P.W. 13. The evidence of P.W. 14 was that the appellant had assaulted the deceased by means of a Tabal and when he got up, the appellant Safei dealt a blow on the deceased by means of an axe. The evidence of the witnesses to the occurrence would show that the two appellants had dealt blows by sharp-cutting instruments on the head and neck of the deceased which, according to the medical evidence, had resulted in his death. Nothing substantial had been brought out in the cross-examination of P.Ws. 8,13 and 14 to discredit their testimony. The evidence of P.W. 13, who had strained relationship with the appellant Harihar, had been corroborated by other acceptable evidence. The evidence of the close relations of the deceased, namely, P.Ws. 3,6 and 7, had also found assurance from the evidence of P.Ws. 8,13 and 14. The learned Sessions Judge, on a careful scrutiny of the evidence of these witnesses, has held the evidence to be acceptable after brushing aside the discrepancies in their evidence with regard to the minor details of the occurrence enumerated in the body of the judgment. There could thus be no doubt from the evidence that the two appellants had assaulted the deceased and had killed him.
10. A faint attempt had been made at the trial to establish a right of private defence both of person and property. Such a plea has also been raised before us by the learned Counsel for the appellants in the alternative. But we see no force in this contention.
11. In his statement before the trial court, the appellant Harihar had denied to have gone to the place of occurrence and according to him, the land in question did not belong to him. The appellant Safei, while denying to have gone to the place of occurrence, had stated that in the year of occurrence, he had not been able to cultivate the land which was in his possession by virtue of a deed of adoption executed in his favour. According to him, he had falsely been implicated by the witnesses who wanted to grab his land. There was no evidence that the deceased had, at any time during the occurrence or prior to it, made any attempt to assault any of the appellants nor was there evidence to indicate even show of force by him. As the evidence would indicate, he was sitting on the ridge with P.W.14 when the occurrence took place. When the deceased was assaulted to death, he was unarmed and defenceless. Thus the question of right of private defence either of person or of property did not arise.
12. The evidence of the witnesses to the occurrence and the medical evidence would show that the attack had been made by the two appellants on the vital parts on the person of the deceased by dangerous instruments, such as, Tabal and axe, both sharp-cutting iron instruments. The two appellants had caused injuries evidently with the intention of causing the death of the deceased by inflicting blows on the vital parts and in that process, caused injuries sufficient in the ordinary course of nature to cause death. The appellants would, therefore, be guilty of committing the offence of murder.
13. Referring to and relying on the principles laid down in : 1955CriLJ721 Nanak Chand v. State of Punjab : 1955CriLJ1004 Suraj Pal v. State of Uttar Pradesh and (1968) 34 Cut LT 8 Raghunath Das v. State, it has been submitted by the learned Counsel for the appellants that as the appellants were charged Under Section 302 read with Section 149 of the Code and 'they have been acquitted of that charge, they cannot be convicted for the substantive offence of murder Under Section 302 of the Code. The two decisions of the Supreme Court, referred to above, have been distinguished in : 1956CriLJ291 Willie (William) Slaney v. State of Madhya Pradesh. The question is one of prejudice. We would, however, express no opinion on the legal contention raised by the learned Counsel for the appellants in this regard as, in our view, it would be legal and appropriate, in the circumstances of the case, to record an order of conviction against the appellants Under Section 302 read with Section 34 of the Code by modifying the order of conviction passed against them. Persons charged Under Section 302 read with Section 149 of the Code can legally be convicted under Section 302 read with Section 34 of the Code See AIR 1954 SC 204 : 1954 Cri LJ 580 Karnail Singh v. State of Punjab : 1972CriLJ227 Ram Tahal v. State of U.P. and : 1973CriLJ1409 Amar Singh v. State of Haryana.
14. The appellants had .strained relationship with the other side over a piece of land. While the deceased was on the ridge of the land, the two appellants with others went to the spot. One of the two appellants had a Tabal and the other had an axe. Both of them attacked the deceased. The appellant Harihar was the first to deal a blow on the deceased who fell down. When the latter attempted to get up, the appellant Safei dealt another blow on him whereafter the deceased, as the evidence would show, could not get up. The appellants had assaulted on the head and neck portions of the deceased. Injuries sufficient in the ordinary course of nature to cause death had been noticed by the doctor (P.W. 1) on the person of the deceased which could be caused by the instruments the appellants were holding and in the manner in which they had assaulted the deceased. After assaulting the deceased to death, the two appellants left the spot with others. The acts and conduct of the two appellants prior to, at the time of and subsequent to the occurrence would clearly establish that they had the common intention to commit the murder of the deceased. Common intention must be to commit a particular crime and it pre-supposes prior concert. It requires a pre-arranged plan and the act must have been done in furtherance of the common intention of accused persons after prior meeting of minds. See : 1955CriLJ572 Panduranga v. State of Hyderabad and : 1975CriLJ243 Hardev Singh v. State of Punjab. The circumstances in which the two appellants attacked and killed the deceased would show that they had come armed to the spot with the intention to kill the deceased after a pre-arranged plan and that they had attacked and committed the murder of the deceased in furtherance of their common intention. The appellants are liable to be convicted Under Section 302 read with Section 34 of the Code.
15. In the result, we would alter the order of conviction recorded against the appellants Under Section 302 of the I.P.C. to one Under Section 302 read with Section 34 of the I.P.C. while maintaining the sentences passed against them. The appeal fails and is dismissed subject to the alteration in the order of conviction recorded against the appellants.
G.B. Patnaik, J.
16. I agree.