B.K. Behera, J.
1. The appellant Kana and his son Maran, the other appellant have been convicted under Section 302 read with Section 34 of the Penal Code (for short, 'the Code') for having committed the murder of Dasarath Majhi (to be referred to hereinafter as 'the deceased') in furtherance of their common intention on Nov. 2, 1979, at village Banjipani in the district of Kalahandi. The case of the prosecution was that there had been a land dispute between the appellants on the one hand and the deceased on the other. Of this, there was no paucity of evidence and it had been admitted by the appellants. It is not disputed at the Bar that the deceased had died a homicidal death and that the trunk and the head portions over which autopsy had been conducted by the doctor (P. W. 2) were of the deceased. The prosecution sought to establish its case mainly on the evidence of the son of the deceased (P. W. 8), the sole witness to the occurrence and his statements made to his brother (P. W. 9), his mother (P. W. 10) and two co-villagers (P. Ws. 11 and 12) immediately after the occurrence naming the appellant Maran Majhi as the person who had assaulted his father by means of a Tabal by dealing a blow on his neck coupled with the medical evidence. The prosecution further sought to establish that on the day following the day of occurrence, the appellant Kana, who, according to P. W. 8, had instigated the other appellant on the spot to kill the deceased, produced the cut head of the deceased with the killing instrument (Tabal) tied to the hairs. There was, in addition, the evidence that a piece of cloth (M. 0. VI) had been seized from the appellant Kana which on chemical and serological test, contained human blood. No article belonging to the appellant maran contained human blood, as found on chemical and serological test.
2. On an examination of the evidence of the fifteen witnesses adduced from the side of the prosecution, the trial Court held that the charge had been brought home to both the appellants and each of them sentenced to undergo imprisonment for life.
3. Mr. Suman Kumar Dey, appearing on behalf of the appellants, has taken us through the relevant evidence and has contended that the charge had not been established against any of the appellants.
4. Coming to the case against the appellant Kana, Majhi, we notice that in that first information report lodged by P. W. 8, no allegation had been made about any instigation by this appellant about which P. W. 8 had testified in the Court. That apart, P. Ws. 9 to 12 had been informed about the occurrence by P. W, 8 immediately after it. All of them had deposed that P. W. 8 had told them that the appellant Maran had hit the neck of the deceased by means of a Tabal. They had not stated a word that this witness had informed them about any instigation on the part of the appellant Kana.
5. As would appear from the evidence of P. Ws. 1 and 5, the latter being a Sub-Inspector of Police, the cut head of the deceased with the Tabal tied to the hairs had been found by them at the Nawapara Police Station while the appellant Kana was sitting nearby and it might suggest that this appellant had produced the cut head. Strangely, however, no police officer, who might have been in charge of the police station and the Station Diary at the time when this appellant went to the police station with the cut head, had been examined in this case. No one had spoken about the actual production of the cut head by this appellant. Even assuming, however, that this appellant had produced the cut head at the police station with the Tabal (M. O. I.) tied to the hairs of the head, in the absence of any other evidence pointing to his guilt, this could not substantiate the charge against him. It could be that in order to save his son from the charge of murder, this appellant had gone to the police station and had voluntarily produced the cut head.
6. For the foregoing reasons, we must hold that the charge against the appellant Kana had not been established and the learned standing Counsel has very fairly submitted before us that this would be the correct conclusion.
7. As regards the complicity of the other appellant Maran, there was, in the first place, the clear evidence of P. W. 8, the son of the deceased, that this appellant along with the other appellant Kana had gone to the land of the deceased and that the appellant Maran who was armed with a Tabal and bow and arrows, hit the neck portion of the deceased by means of the Tabal he was holding whereafter owing to fear, he (P. W. 8) left the place and informed P. Ws. 9 to 12 about what he had seen. Nothing substantial had been brought out in his cross-examination to discredit his testimony. His immediate statements to P. Ws. 9 to 12 implicating the appellant Maran as the assailant of the deceased and his statement in the first information report to the same effect would lend further assurance to his testimony. True it is that P. W. 8 was aged about twelve years at the time he deposed in the Court. It has, however, been well settled that the evidence of a child witness is not to be rejected if his evidence has immediately been made available and before the chance of coaching or tutoring. In the instant case, there had been no delay in the disclosure by this witness about the occurrence. The evidence of P. W. 8 hatl fully been corroborated by the medical evidence. We thus find no infirmity in the evidence of P. W, 8 and in our view, his evidence was clear and cogent, true and trustworthy and above reproach. We are at one with the trial Court that it was this appellant who had killed the deceased by hitting on his neck by means of a Tabal and by separating the head portion from the trunk portion of the body.
8. The learned Counsel for the appellant has submitted that if the prosecution case against the appellant Maran is accepted and we have accepted it, his act would come within the purview of Section 304, Part II of the Code as he had dealt but one blow on the neck of the deceased. We find no force in this contention. It cannot be laid down as a proposition of law that when only one blow is given, the case would not come within the purview of any of the clauses of Section 300 of the Code punishable under Section 302 thereof. P. W. 8 had seen the dealing of one blow on the person of the deceased and thereafter he left the scene of attack owing to grave fear. It would not follow that not more than one blow had been dealt by the appellant Maran on the neck of the deceased. Even assuming that one blow had been dealt on the neck with reference to the medical evidence that even one blow could cause the injury on the neck, the evidence presented at the trial would give an indication that the blow must have been dealt with considerable force and vigour as the entire head portion had been cut off, There could thus be no doubt that the appellant Maran had the intention of causing death of the deceased and with that intention, had caused injuries sufficient in the ordinary course of nature to cause death,
9. Both the appellants stood charged under Section 302 read with Section 34 of the Code and we have found no case against one of them. It has been a settled principle of law that if two persons are so charged and one is acquitted, the other person can be held guilty for commission of the substantive offence of murder if the prosecution evidence is clear that he had committed the murder. The appellant Maran can legally be convicted by this Court under Section 302 of the Code.
10. In the result, the appeal is allowed in part. The order of conviction and sentence passed against the appellant Kana Majhi is set aside and he be set at liberty forthwith. In lieu of the order of conviction recorded against the appellant Maran Majhi under Section 302 read with Section 34 of the Penal Code, he is convicted under Section 302 of the Penal Code and the sentence passed against him is maintained.
K.P. Mohapatra, J.
11. I agree.