JUDGMENT : B.K. Ray, J. - Of the 33 accused persons tried in the Court below, only 2, viz : Jadu and Narendra alias Nara Sethi convicted u/s 302, Indian Penal Code and sentenced to rigorous imprisonment for life each are the Appellants in the present appeal the rest having been acquitted. 2. The prosecution case is as follows: Gobardhan Behera was the servant of Sripati Panigrahi, informant p.w. 13. Umakanta and Baidehi were the brother and mother respectively of Gobardhan. On 5-9-1968 in the afternoon, Gobardhan and Umakanta had been to the field of p.w. 13 to irrigate it. The two Appellants together with 31 others gathered near the field of p.w. 13 armed with deadly weapons, such as: swords, tangias, spades and lathis. There was some altercations between Gobardhan on one hand and some of the persons assembled on the other. Thereupon, all the persons gathered,there including the Appellants surrounded Gobardhan and Umakanta. p.w. 13 reached the spot at that time and advised the persons assembled not to quarrel. Then Sudarsan Behera, accused in the Court below assaulted p.w. 13 with a lathi who thereafter ran away from the spot. Appellant Narendra gave a lathi blow on the head of Gobardhan. Puma Sahu and Geura Sahu, accused in the Court below gave one blow each on the head of Gobardhan, the former with a lathi and the latter with a tangia. Madhab, another accused in the Court below gave a blow with a tangia on the head of Umakanta. Gobardhan and Umakanta died on the spot, as a result of the injuries inflicted on them. Chitrasen Dipa arrived at the spot when the assault was going on and tried to prevent it. Sudarsan Behera, accused in the Court below struck Chitrasen with a lathi on his head who then ran away being injured. Baidehi also died at the spot where she had gone as a result of the assault by some of the persons assembled. Chitrasen Dipa informed about the incident to p.w. 3 who thereafter lodged the F.I.R. (Ex. 71) at 8-30 p.m. the very same day when the occurrence had taken place. 3. Baidehi also died at the spot where she had gone as a result of the assault by some of the persons assembled. Chitrasen Dipa informed about the incident to p.w. 3 who thereafter lodged the F.I.R. (Ex. 71) at 8-30 p.m. the very same day when the occurrence had taken place. 3. The police after investigation submitted charge-sheet against 33 persons including the Appellants and they being committed for trial to the Court of Sessions were tried by the Court below which convicted and sentenced the Appellants as mentioned above and acquitted the remaining 31 persons. 4. According to the prosecution case, p.w. 13 was the person who went to the spot when altercations were going on between Gobardhan and some of the persons who had gathered there with various weapons. In his evidence p.w. 13 names 6 persons including Appellant Nara Sethi. He does not say to have seen Appellant Jadu there at the spot. p.w. 13 further says that he was struck with a lathi by Sudarsan Behera where after he p.w. 13 left the spot. The assault by Sudarsan Behera on p.w. 13 has not been believed by the Court below. 5. Chitrasen Dipa p.w. 1 is an eye-witness to the occurrence. He admits that his sister had married Gobardhan (deceased); that Umakanta (deceased) is the brother of Gobardhan and that Baidehi is the mother of Gobardhan and Umakanta. According to this witness Appellant Nara Sethi gave a stroke with a lathi on the head of Gobardhan who sustained bleeding injury and thereafter Purna and Goura gave a stroke each on the head of Gobardhan the former by a lathi and the latter by a tangia. Gobardhan as per the evidence of this witness, fell down. p.w. 1 further says that Appellant Jadu gave a lathi blow on the head of Umakanta and that this blow was followed by two other blows on the head of Umakanta dealt by Sudarsan Behera and Rama Padhan. Sudarsan Behera, according to p.w. 1. also dealt a lathi blow on his p.w. 1 head, p.w. 1 did not implicate Appellant Jadu before the I.C. p.w. 17. 6. p.w. 2, another eye-witness to the occurrence has seen Appellant Nara Sethi and Puma giving strokes with lathis and Goura Sahu giving a stroke with an axe on the head of Gobardhan. also dealt a lathi blow on his p.w. 1 head, p.w. 1 did not implicate Appellant Jadu before the I.C. p.w. 17. 6. p.w. 2, another eye-witness to the occurrence has seen Appellant Nara Sethi and Puma giving strokes with lathis and Goura Sahu giving a stroke with an axe on the head of Gobardhan. According to p.w. 2, Ghasi Bhoi gave an (sic) blow on the head of Umakanta, as a result of which the latter fell down. This witness does not implicate Appellant Jadu as has been done by p.w. 1. 7. p.w. 3 is the third witness to the occurrence. He says that Sudarsan Behera gave a lathi blow on the head of p.w. 13 and that Appellant Nara Sethi. Purna and Goura gave one blow each on the head of Gobardhan, the former two with lathis and the latter one with an axe. The lathi blow by Appellant Nara was the first blow on Gobardhan. p.w. 3 does not implicate appellate Jadu. 8. The Court below finds that there is no evidence whatsoever as to how Beidehi died. It also finds that 11 persons excluding the Appellants out of the 33 persons who were tried were not present at the spot. Besides the aforesaid 11 persons the Court below relying on the evidence of D.w. 1 has come to hold that Goura and Purna were not present during the occurrence. It has also not believed the use of axe, spade or sword by any of the persons involved in the incident and has found that 15 other accused persons excepting the Appellants were not members of the alleged unlawful assembly gathered at the spot. The version of p.w. 2 that Ghasi, Sudarsan Behera and Rama assaulted Umakanta and that of p.w. 1 that Rama assaulted Umakanta have not been accepted by the Court below. After discussing the entire evidence led by the presentation, the Court below has found that there were less than 5 persons who had assembled at the spot at the time of the occurrence, and hence, there was no unlawful assembly. Upon this finding, it convicted only the two Appellants Nara and Jadu who are actually said to have dealt blows on Gobardhan and Umakanta. 9. P. ws. 1 to 3 are, however, consistent in their versions that Appellant Nara gave one lathi blow on the head of Gobardhan causing a bleeding injury. Upon this finding, it convicted only the two Appellants Nara and Jadu who are actually said to have dealt blows on Gobardhan and Umakanta. 9. P. ws. 1 to 3 are, however, consistent in their versions that Appellant Nara gave one lathi blow on the head of Gobardhan causing a bleeding injury. But there is evidence that some others also dealt blows on the head of Gobardhan, besides Appellant Nara. The evidence of the Doctor (p.w. 14) reveals that there are more than one injury on the head of Gobardhan. Hence, Nara cannot be attributed with the intention to cause death or with the intention to cause such bodily injury which he knew to be likely to cause death or with intention to cause such bodily injury which is sufficient in the ordinary course of nature to cause death, while dealing one lathi blow on Gobardhan. In our view, therefore Nara is guilty u/s 324, Indian Penal Code and not u/s 302, Indian Penal Code as has been said by the Court below. Regarding Appellant Jadu, he is not implicated by any of the prosecution witnesses, except p.w. 1 who attributes to him only a lathi blow on the head of Umakanta. This witness, as already noticed above, is the brother-in-law of Gobardhan and Umakanta who are brothers. For this reason, the Court below has discarded his evidence in other aspects when he is not corroborated by other independent witnesses. There is, therefore no justification why p.w. 1's uncorroborated testimony implicating Appellant Jadu would be relied upon, so far as Appellant Jadu is concerned. In this state of evidence, we are of the view that Appellant Jadu should be given the benefit of doubt. That apart, both the Appellants having been charged for an offence u/s 302/149, Indian Penal Code which is a distinct offence by itself, they could not be convicted u/s 302 Indian Penal Code Baira ' Bairagi Mohanty v. State 37 (1971) C.L.T. 451. In that case, two Petitioners along with 11 others were charged for offences punishable under Sections 147/333 and 333/149, Indian Penal Code. The Assistant Sessions Judge who tried these accused persons ultimately convicted five of them u/s 332/149, Indian Penal Code. He convicted the very same accused persons also u/s 147, Indian Penal Code. The Sessions Judge upon appeal set aside the conviction of some and retained that of the two Petitioners. The Assistant Sessions Judge who tried these accused persons ultimately convicted five of them u/s 332/149, Indian Penal Code. He convicted the very same accused persons also u/s 147, Indian Penal Code. The Sessions Judge upon appeal set aside the conviction of some and retained that of the two Petitioners. One of the questions raised in that case was as to whether the conviction of the two Petitioners u/s 332/149, Indian Penal Code could be altered to one u/s 332, Indian Penal Code only. Relying upon two other earlier decisions of the Supreme Court reported Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI) and A.V. D'costa Vs. B.C. Patel and Another. It was held in that case that it was not permissible to alter the conviction to one u/s 332, Indian Penal Code, because it was possible that if the Petitioners were charged for the direct assaults, they could have taken the plea that they did not commit any overt act and established the same. Such a plea could not be taken by them on account of the charge of constructive liability. Relying on this authority, we hold that the Appellants having been originally charged u/s 302/149, Indian Penal Code could not have been convicted u/s 302, Indian Penal Code. There is, however, no bar for us to hold Appellant Nara Sethi guilty u/s 324, Indian Penal Code. 10. In the result, we allow the appeal in part, set aside the order of convictions and sentences against the Appellants u/s 302, Indian Penal Code acquit Jadu giving him the benefit of doubt and convict Nara u/s 324 Indian Penal Code and sentence him to rigorous imprisonment for the period of sentence already undergone by him since 30-4-1970, the date when he was convicted and sentenced by the Court below. We, therefore, direct that the bail bond furnished by Appellant Jadu be discharged and that Appellant Nara be released forthwith. R.N. Misra, J. 11. I agree.