IMPORTANT POINT
Persons charged u/s. 302/149 [PC but convicted u/s. 302 only, by modifying the order of conviction can legally be convicted u/s. 302/34 IPC in appeal.

JUDGMENT

Behera, J. 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 Indian Penal Code (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 lath is, under section 302 read with section 149 of the Code for committing the. murder of Gurucnaran 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 August 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 occurence 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 occurence. The first information 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.l 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 beep 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, extrajudicial 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 r