The central legal point established in the judgment is the assessment of the intention to commit murder and the severity of the injuries sustained in determining the appropriate conviction.

JUDGMENT :

A.S. Naidu, J. - The two Appellants have preferred in Criminal Appeal against the order of the learned Sessions Judge, Keonjhar in Sessions Trial No. 7 of 1990 convicting them of the charges under Sections 148/302/149 Indian Penal Code sentencing them to undergo rigorous imprisonment for life u/s 302/149 Indian Penal Code and undergo rigorous imprisonment for three years u/s 148 Indian Penal Code, both the sentences being directed to run concurrently.

2. Bereft of unnecessary details, the short facts of the case are that on 31-7-1989 the informant P.W. 1 returned from Cuttack to his village at about 2 p.m. and finding his daughter-in-law suffering from fever, took her to hospital. His son Silu Nag had gone out along with some others. At about 8 p.m. that day while returning from the hospital, P.W. 1 heard some groaning sound from the bushes adjacent to his house. He went near the bush and found his son Silu Nag lying in injured condition. Silu Nag asked for water. On being asked, Silu Nag told PW. 1 that some persons assaulted him without naming them. Thereafter the informant and one Lalu Patra shifted Silu Nag to his house. At the house while preparation was being made to shift the injured to hospital, he succumbed. On the basis of information given at the Bolani Outpost orally and the A.S.I. of the said Outpost transcribed the same in writing and registered Barbil PS. Case No. 72 of 1989 u/s 302/34 Indian Penal Code and investigation was taken up by police. During investigation police examined the informant and the wife of the deceased, prepared the inquest report and dead body challan and sent the dead body for post-mortem examination. Two lathis, a full pant and some Amari sticks suspected to have contained bloodstains were seized from the spot and the two Appellants and one Manga were arrested. Two other accused persons, namely, Matu alias Bahadula Mahakud and Matka Munda, could not be apprehended. After completion of investigation charge-sheet was submitted under Sections 147/148/149/341/302 Indian Penal Code against the accused persons showing Matu alias Bahadula Mahakud and Matka Munda as absconders. Defence took the place of complete denial of the occurrence.

3. To substantiate its case, prosecution examined as many as nine witnesses, of whom P.W. 1 was the informant, P.W. 2 was the medical officer who had conducted the post-mortem over the dead body, P.W. 3 was a witness to seizure of blood-stained clothes and lathis, PW. 4 was an independent witness who had helped the informant in shifting the injured from the spot to the house, P.W. 5 was a witness to seizure of two lathis, wearing apparels and Amari sticks, P.w. 6 was an eye-witness to the occurrence, P.W. 7 was another eye-witness to the occurrence, P.W. 8 was the son of the deceased and PW. 9 was the investigating officer in the case.

4. After discussing the evidence, the trial Court came to the conclusion that the death of Silu Nag was homicidal in nature and the Appellants in furtherance of their common object had committed riot being armed with lathis and had assaulted the deceased to death intentionally. On the basis of such conclusion the trial Court held the Appellants guilty under Sections 148/302/149 Indian Penal Code and after convicting them there under sentenced them as stated above. The trial Court however held that accused Manga Oram, in absence of any clear and positive evidence, could not b held guilty of the charges framed against him and acquitted him.

5. Learned Counsel for the Appellants forcefully submitted that there was absolutely no intention of the Appellants to commit the murder of the deceased and the learned Court below acted illegally and with material irregularity in holding the Appellants guilty. According to him, the judgment of the trial Court was based more on surmises and conjectures than the actual evidence on record. Drawing out attention to the evidence of the doctor P W. 2, Learned Counsel for the Appellants submitted