JUDGMENT
R.K. Patra, J.
1. The appellants – two in number – assail their conviction recorded by the Additional Sessions Judge, Jajpur Under Section 302/34, I.P.C. and sentence of imprisonment for life imposed thereunder.
2. Altogether eight accused persons including the appellants were placed on trial. They were all charged Under Section 302/34, I.P.C. The appellants and accused Karunakar and Kalandi alias Kalia (accused Nos. 6 and 7) were further charged Under Section 324/34, I.P.C. for having caused hurt to Chhaya (P.W.7). Appellant No. 1 Ghana was separately charged Under Section 324, I.P.C. for having caused hurt to Krushna Mallik (P.W.3).
3. Prosecution case is that all the accused persons including the appellants being actuated by common intention caused the murder of Kasinath Mallik on 16.8.1988 at 6 p.m. in front of the house of accused Ananta. Mallik (since acquitted) in village Gopinathpur. In course of the same event actuated by the same common intention appellants and accused Karunakar and Kalandi alias Kalia voluntarily caused hurt to Chhaya Mallik (P.W.7) by farsa and kata and appellant No. 1 Ghana causes hurt to Krushna (P.W.3) by farsa. Learned Additional Se’ssions Judge on the basis of materials available on record while convicting the appellants Under Section 302/34, I.P.C., acquitted the remaining six accused persons of the said charge. He has also acquitted the appellants and accused Karnukar and Kalandi alias Kalia of the charge Under Section 324/34, I.P.C.
4. As already indicated, the appellants and six others were charged Under Section 302/34, I.P.C. which reads as .follows :
“that you……..on or about 16.8.1988 at 6 p.m……..in prosecution of your common intention committed the murder by cutting the neck and body of deceased Kasinath Mallik intentionally causing death.”
Law is well settled that with the acquittal of co-accused, the element sharing the common intention with him/them disappears. This being the position, since the learned Additional Sessions Judge has acquitted six out of the eight accused persons of the charge Under Section 302/34, I.P.C, the surviving accused i.e., the appellants cannot be convicted for commission of murder with the aid of Section 34, I.P.C. The appellants can, however, be convicted for their individual liability for having caused injury to the deceased subject to proof.
5. P.W.6, the doctor, conducted post mortem examination of the dead body of the deceased and found the following external injuries :
(i) Incised wound 6″ x 3″ x 3″ deep on posterior aspect of right side back over upper part of scapula extending to right shoulder joint,cutting the right scapula and 8th and 6th ribs;
(ii) Incised wound 4″ x 1/2″ x 2″ deep on backside of right shoulder joint 2″ above the injury No. l catting the upper part of scapula;
(iii) Incised wound 5″ x 1″ x 1/2″ ” deep on the right side of neck extending upwards to the occiput 1″ behind the right ear.
(iv) Incised wound 3 1/2 ” x 1/2i” deep on posterior aspect of neck placed transversely 3″ below the occiput;
(v) Incised wound 5″ x 1″ x 3 1/2″ deep situated transversely on the left side of neck cutting the cervical-2 and 3 bones left carotidartery and all muscles of left side neck;
(vi) An area of 1 1/2″ x 1″ x scalp deep was blown out with sharp cutting margin over left parietal area of skull. He opined that each of the injuries is sufficient in ordinary course of nature to cause death. Those injuries are possible by sharp cutting weapon like farsa.
6. P.Ws. 3, 4 and 7 were examined as eye witnesses to the occurrence. P.W.3 deposed that on the date of occurrence before sun-set while he was returning from his field by the side of the house of accused Ananta, he saw the deceased being bodily lifted by accused Kalia, Krupa and Dhruba. They took the deceased to the frontage of Ananta’s house. All the aforesaid accused persons pounced upon the deceased and pressed him. Appellant No. l Ghana dealt a farsa blow to the deceased on his right shoulderneck. Appellant No. 2 Bata gave a farsa blow on the right side shoulder, neck and head of the deceased. Appellant No. 1 Ghana also dealt a kata blow to the right side shoulder-neck of the deceased. Appellant No. 2 Bata intended to give a blow to the deceased but it struck appellant No. 1 Ghana. Thereafter appellant No. 2 Bata gave a blow to the deceased on his right shoulder- neck and to the head. In his cross-examination, he admitted; that he did not state to the police about appellant No. 1 Ghana giving blow on the right side shoulder-neck of the deceased. P.W.4 stated that on the date of occurrence before sun-set he was returning with his rickshaw to his house. He saw the two appellants and accused Dhruba and Krupa were assaulting the deceased by farsa. When he raised alarm, accused Dhruba tried to assault him by farsa and he ran away from the spot being frightended. The aforesaid evidence of P.W.4 is of omnibus nature in the sense that he vaguely stated that the appellants and other two accused persons were assaulting the deceased by farsa. His evidence does not indicate as to which appellant’s blow struck on which part of the body of the deceased. He in the cross- examination admitted that he did not state to police that the appellants and accused Dhruba and Krupa were assaulting the deceased. This indicates that he had not seen the real assault on the deceased. P.W. 7 is the mother-in-law of the deceased. Although in the examination in chief she stated about the appellants inflicting blows on the deceased, in her cross-examination it was brought out that she stated to the police that while returning from the field at 4 p.m. he heard that the deceased had been assaulted and she went and found that the deceased was lying injured in front of the door of accused Ananta. From the aforesaid evidence, we have no hesitation to hold that P.W.7 has not seen the assault on the deceased.
7. From the aforesaid analysis of evidence of P.Ws.3, 4 and 7 it may be seen that. P.Ws. 4 and 7 have not seen the assault on the deceased. Having regard to the evidence of P.W.3 that appellants gave farsa blow on the right shoulder-neck of the deceased which tallied with injury Nos. III and IV (vide evidence of the doctor P.W.6), we convict both the appellants Under Section 325, I.P.C.
8. In the result, the conviction of the appellate Under Section 302/34, I.P.C. and the sentence imposed thereunder are set aside. They are convicted Under Section 325, I.P.C. and each of them is sentenced to undergo rigorous imprisonment for three years.
The appeal is allowed in part.
L. Mohapatra, J.
9. I agree.