When a co-accused is acquitted, the element of common intention disappears, and the other accused cannot be convicted under Section 302 IPC simpliciter unless it is established that the injuries caused by the said accused were of the character which would bring the case within Section 302 IPC.

R. K. PATRA, J.

( 1 ) APPELLANT Khagapati Gouda along with one Siba Bhotra was indicted in the Court of Sessions Judge, Koraput under Section 302 read with Section 34 IPC for having. committed the murder of Sukru Gouda. The learned Sessions Judge acquitted Siba Bhotra of the charge on benefit of doubt. The appellant, however, has been found guilty and has been convicted under Section 302 IPC simpliciter. He has been sentenced to undergo imprisonment for life. In this appeal, the said conviction and sentence are under challenge.

( 2 ) BRIEFLY stated the prosecution case is that the appellant was the nephew of the deceased Sukru Gouda who was issueless. He brought the appellant to his house at Marijaniguda and kept him as his son since about one year prior to his murder. The appellant used to quarrel with the deceased as the latter did not give any land to him. The other accused Siba Bhotra is a friend of the appellant. On 4-11-1991 in the morning the appellant and the co-accused Siba Bhotra took the deceased Sukru Gouda to village Ushigaon to take liquor in the house of Hata Delapati (P. W. 1 ). After taking liquor all of them left the house of P. W. 1 at about 5 p. m. In the night, the appellant and the co-accused Siba Bhotra came to the village and told Tulsa (P. W. 5), the widow of the deceased that they killed Sukru by means of a stone in the land of one Katulu Jani. Hearing this P. W. 5 along with others including the appellant and the co-accused Siba Bhotra went to the spot and found Sukni Gouda lying dead with injuries on his left side head. After the matter was reported at the local police station police took up investigation and on its completion charge-sheeted the appellant and the co-accused Siba Bhotra under Section 302/34 IPC which has ultimately resulted in the conviction of the appellant under Section 302 IPC simpliciter, as aforesaid.

( 3 ) THE plea of the appellant was one of denial.

( 4 ) IT is not disputed before us that the death of Sukru Gouda was homicidal. P. W. 4, the doctor who conducted autopsy, found the following injuries :"external injuries :1. Echymosis was present in the left axillary area 2" x 2". 2. Lacerated wound size 6 cms. x 1. 5 cms. x skin deep on the left occipital area 2 cms. above the mastoid process. 3. Congestional laceration in the inner side of lips 1/2" x 1/2" each. Internal injuries :on dissection fracture of skull bone extending from the left portion to a point 5 c. ms. behind the left mastoid process. Length of fracture line was 181/2 c. ms. Another fracture line in the frontal area 81/2 c. ms. extending from the pterion (sic) transversely. Another fracture line extending from the side of impact and joining with the first fracture line. Membranes were torn at the site of impact. Two pieces of bone were easily removed. Extra-dural, sub-dural and intra cerebral haemorrhage were noticed. "according to the doctor, the injuries were antemortem in nature and were sufficient in the ordinary course of nature to cause death. He opined that the death was due to haemorrhage to vital organ like brain.

( 5 ) THERE is no eye witness to the occurrence. The learned Sessions Judge on the basis of the following items of evidence has held the appellant guilty under section 302 IPC. They are : (i) the deceased was last seen with the appellant and the co-accused before his death as stated by P. Ws. 1, 2, 3 and 5, and (ii) extra-judicial confessions before P. W. 5, the widow of the deceased.

( 6 ) THE learned counsel for the appellant contended that the evidence in the case being discrepant and the extra-judicial confession said to have been made by the appellant before P. W. 5 being unreliable, the appellant cannot be held guilty for commission of the offence of murder. We have perused the evidence of P. W. 5. She is the widow of the deceased. The appellant is no other than her nephew. She has clearly deposed that on the date of occurrence, the appellant and the co-accused took her husband at