JUDGMENT : B.K. Behera, J. - The Appellant Magata Panda and his son Suryanarayan Panda, who figures as the other Appellant, have been convicted u/s 302 read with Section 34 of the Indian Penal Code ('the Code' for short) and sentenced to undergo imprisonment for life. The Appellant Suryanarayan has also been convicted u/s 326 of the Code and sentenced to undergo rigorous imprisonment for a period of ten years. The Court of Session has accepted the case of the prosecution that on April 24, 1981, after Ashok Kumar Choudhury (P.W. 6) came to the mango tope and saw some children related to the Appellants collecting mangoes and challenged them and in turn, was challenged by the children for which he gave a push to Paramananda alias Babu Panda, one of the sons of the Appellant Magata, the two Appellants, on being informed about this incident by Jada Panda, a nephew of the Appellant Magata, came armed to the spot from two different directions, the Appellant Magata being armed with a gun and the other Appellant Suryanarayan being armed with a Gupti stick and in furtherance of their common intention, killed Debahari (hereinafter described as the 'deceased'), who had come to the spot on hearing about the incident, by gun shot which had been fired by the Appellant Magata and the Appellant Suryanarayan caused grievous hurt to Ashok (P.W. 6), the son of the deceased by dealing blows with the sword inside the stick. The learned trial Judge has rejected the case of the defence that the Appellant Magata was no where near the scene and that when his son Suryanarayan came running home with cut injuries on his person and he (Appellant) had been enquiring from him as to what had happened, villagers came and closed the door and the case of the other Appellant Suryanarayan that when he went to the spot and challenged P.W. 6, the latter dealt a blow on his right wrist by means of a Gupti and then the villagers came and one of them fired a gun whereafter he (Appellant) pushed aside P.W. 6 and ran to his village out of fear for his life and informed the other Appellant as to what had happened. Investigation in this case had been taken up by the police authorities on the basis of the first information report (Ext. Investigation in this case had been taken up by the police authorities on the basis of the first information report (Ext. 1) lodged by P.W. 1 as P.W. 6 was not in a position to go and the report at the police station in view of the injuries on the person and on its completion, a charge-sheet had been placed. In the course of investigation, a gun (M.O. V) had been recovered from the possession of the Appellant Magata while he was returning me from the river side and M.A. III, a sword and its cover (M.O. IV) had been recovered and seized. 2. To bring home the charges, the prosecution had examined fifteen witnesses whereas in support of their, defence, the appellate had examined one witness. On a consideration of the evidence, the learned trial Judge has accepted the case of the prosecution and convected the Appellant as stated above. 3. It is not disputed at the Bar that the deceased had died a homicidal death which had been caused by gun shot. There was no paucity of evidence that P.W. 6, had sustained grievous injuries on his person. These aspects of the prosecution case have not been challenged on behalf of the Appellants. 4. Mrs. Padhi has urged that the evidence of the four witnesses to the occurrence, namely, P.Ws. 2, 3, 5 and 6 was not worthy of credence and in view of the Ballistic Expert's report that the injuries sustained by the deceased could not have been caused by firing from the gun (M.O. V) recovered from the possession of the Appellant Magata, the learned trial Judge went wrong in accepting the case of the prosecution. It could not be said from the evidence, as urged by Mrs. Padhi, that the two Appellants had shared the common intention to commit the murder of the deceased or that the Appellant Suryanarayan had caused grievous hurt to P.W. 6. According to Mrs. Padhi, the, injuries on the person of the Appellant Suryanarayan have not been explained by the prosecution which has not presented a true story as to how the occurrence started and as to what actually happened. The learned Standing Counsel has submitted and very fairly so, that the evidence would not lead 'one to a reasonable conclusion that both the Appellant had shared the common intention to commit the murder of the deceased. The learned Standing Counsel has submitted and very fairly so, that the evidence would not lead 'one to a reasonable conclusion that both the Appellant had shared the common intention to commit the murder of the deceased. He has, however, submitted that the Appellant Magata can be convicted by this Court u/s 302 of the Code as he had committed the murder and that the other Appellant has properly been convicted u/s 326 of the Code. He has submitted that the prosecution has presented a true and complete picture about the e occurrence and has not suppressed any part of it. 5. There had been a case and a counter case between the parties. It would be seen from the evidence of the Assistant Sub-Inspector of Police (P.W. 13) that in the absence of the Officer-in-charge on duty, he had drawn up the first information report in this case and had registered a case. On the basis of the report of the Appellant Magata, he had recorded the first information report (Ext. 14) and had registered a case under Sections 143, 448 and 427 of the Code. Investigations of both the cases had been taken up simultaneously, as would appear from his evidence. The evidence in each case, however, is to be judged independently and it cannot be treated as evidence in the other. 6. Of the eye-witnesses, Ashok Choudhury (P.W. 6), the son of the deceased, who had sustained four incised wounds on his person, as would be cear from the evidence of the doctor (P.W. 4) and his report (Ext. 3). which were grievous in nature and could be caused by a sharp cutting instrument like M.O. III, had testified: ...My father died on 24-4-1981. On that day at 7 or 8 a.m. I came to the mango tope and went to the tope. P.W. 2 told me that Sudam was shouting from the other end that some children were collecting fallen mangoes and she asked me to go and find out as to what happened. Then I went in the eastern direction. On my way I met Sudam who informed me that some boys of accused family were collecting mangoes, I went further and found that Babu Panda alias Paramananda Panda S/o Magata Panda, Jada. Panda alias Dhanurdhar Panda son of Sudarsan Panda brother of Magata and another boy were collecting mangoes. Then I went in the eastern direction. On my way I met Sudam who informed me that some boys of accused family were collecting mangoes, I went further and found that Babu Panda alias Paramananda Panda S/o Magata Panda, Jada. Panda alias Dhanurdhar Panda son of Sudarsan Panda brother of Magata and another boy were collecting mangoes. When I asked them as to why they were collecting mangoes, Paramananda Panda challenged me about the ownership of the tope. Paramananda came to assault me. So I pushed him and Paramananda fell down. Paramananda then asked Jada Panda to inform about the fact. Then I went round the tope. I came to the hut. While I was talking P.W. 2 near the hut, I saw Surya coming from the western direction with a Gupti stick. I also saw accused Magata coming with a gun from the southern direction. Then P.W. 2 asked me to stay inside the house. P.W. 2 covered me with a mat. I was inside and heard accused Magata and accused Surya enquiring about my whereabouts and P.W. 2 told them that she did not know about me. After some time I could hear the gun sound from the southern side of the hut. I also heard my father shouting for water. Then I came out of the hut and went near my father. As I was approaching my father, accused Surya aimed a blow with Gupti Khanda on me. Then I raised my right hand to protect myself. Then accused Surya dealt 4 to 5 blows with that Gupti Khanda on my right hand. I feeling pain sat on the ground. Then accused Magata asked Surya to move aside so that he would finish me. Accmed Surya then asked his father to run away as the villagers were coming. Then accused persons ran away towards the north of the hut. 7. Nothing substantial has been brought out in the cross-examination of P.W. 6 to discredit his testimony with regard to the assault on him. He has also testified that he could hear the gun shot and had heard his father shouting for water and he (P.W. 6) was assaulted while he came out. His evidence is that he had immediately informed P.W. 1 about the entire occurrence and this is also the evidence of P.W. 1. He has also testified that he could hear the gun shot and had heard his father shouting for water and he (P.W. 6) was assaulted while he came out. His evidence is that he had immediately informed P.W. 1 about the entire occurrence and this is also the evidence of P.W. 1. The disclosure of the occurrence by P.W. 6 to P.W. 1 immediately after it would corroborate the evidence of P.W. 6 in the court. He has denied the suggestion of the defence that he had been armed with M.Os. III and IV and that about a hundred persons of their party came to the tope variously armed with guns and other weapons and he assaulted the Appellant Suryanarayan by means of M.O. III and thereafter a struggle ensued between them and in that process, he sustained injuries on his person. 8. There is the clear and clinching evidence of the three witnesses to the occurrence, P.Ws. 2, 3 and 5, which would establish that the two Appellants came from different direction, one being armed with a gun and the other with a Gupti stick and the Appellant Magata fired a gun shot aiming at the deceased which resulted in his instantaneous death and that the Appellant Suryanarayan dealt blows by means of a sword on the person of P.W. 6, as a result of which the latter sustained bleeding injuries. It was P.W. 2 who had kept concealed P.W. 6 in one room apprehending attack on him. P.W. 2 has deposed; ...Both the accused persons came and enquired from me about Ashok, but I told them that I had not seen Ashok. By that time deceased Deba came there and he was being followed by Satrughna Sethi at a distance of 4 or 5 cubits. Just as they entered into the mango tope, accused Surya towards the deceased and dealt a blow with the stick. Then the deceased fell down on the ground. Accused Magata was near my hut. Deceased got up from the ground. At that time accused Magata asked his son accused Surya to go aside so that he would kill the deceased. Then the accused Magata fired the gun aiming at the deceased and deceased fell down on the ground. The deceased fell down on the ground and was shouting for water. On hearing the shouts of his father Ashok ran towards him. Then the accused Magata fired the gun aiming at the deceased and deceased fell down on the ground. The deceased fell down on the ground and was shouting for water. On hearing the shouts of his father Ashok ran towards him. At that point of time, accused Surya brought out the sword from that stick and aimed at Ashok. Ashok then "raised his hands to protect himself. Then accused Surya dealt 3 to 4 blows with that sword. Satrughna Sethi ran away towards village. The villagers of Suryamani came to the spot. On seeing those villagers coming accused Surya asked his father to leave the place. Then both the accused persons ran away with their arms through that mango tope towards the east. I went to the place where the deceased was lying and found that he was lying dead and his intestine come out.... To the same effect is the evidence of P.W. 3 who has deposed with regard to the occurrence thus: ...On the date of occurrence at about 8 a.m. I was sleeping in the western room of my hut since I had a boil on my leg and was ailing. I heard a hulla. I came out of the hut and saw my mother standing in front of the house and near her, accused Magata was standing and at a distance deceased was just getting up from the ground and by his side, Satrughna Sethi was standing and accused Surya was standing near the deceased. Satrughna Sethi was standing at a distance of 4 to 5 cubits towards east from deceased Debahari. At that point of time, accused Magata told Surya as to move aside, so that he will finish the deceased. Then Surya moved aside and accused Magata fired the gun at the deceased. Deceased Debahari shouted for water and fell down on the ground. On hearing this shout of the deceased Ashok came out from the eastern room of the hut and went near his father. As Ashok was going near his father, accused Surya took out the sword from the stick and aimed a blow at him. Ashok raised his right hand to protect himself and accused Surya dealt 4 to 5 blows on his hand. The deceased died as a result of the gun shot. As Ashok was going near his father, accused Surya took out the sword from the stick and aimed a blow at him. Ashok raised his right hand to protect himself and accused Surya dealt 4 to 5 blows on his hand. The deceased died as a result of the gun shot. Accused Magata asked accused Surya to move aside so that he would also finish Ashok but Surya told his father Magata that the villagers were coming, they should go away. Then both the accused persons ran away from that place. There is also the evidence of P.W. 5, the other eyewitnesses to the occurrence, who had been preparing a straw-rope in the threshing floor of Umacharan whose eldest brother-in-law was the deceased. This witness has spoken thus: ...At that time deceased Deba came to me and asked me to accompany him to the mango tope saying that Magata Panda had gone there with a gun and that Ashok had also gone to that mango tope and he apprehends some trouble. Then I accompanied deceased Deba to the mango tope near the female ghat of Rusikulya river. As we came upon the bank of the river, accused Surya shouted saying 'A SALA SALA ASILA'. On so saying he dealt a blow on deceased Deba by means of a Gupti Thenga. Deceased Debahari fell down. When deceased Debahari got up, at that time accused Magata came running and asked Surya to move aside so that he would finish Debahari and so saying, he fired a gun shot. Deceased Debahari fell down and shouted for water. Then myself and Sundari (P.W. 2) raised protest but accused Surya gestured to assault me and out of fear ran away towards my village shouting. 9. The cross-examination of each one of these witnesses has been placed at the hearing and no infirmity in their testimony is noticed with regard to the assault both on the persons of the deceased and P.W. 6. 9. The cross-examination of each one of these witnesses has been placed at the hearing and no infirmity in their testimony is noticed with regard to the assault both on the persons of the deceased and P.W. 6. No doubt, P.W. 2 and her son Shyama (P.W. 3) had been working as the watchers in the mango tope of Umacharan, a close relation of the deceased and P.W. 2 had been sharing the fruits of the trees with Umacharan, but for this, the evidence of P.W. 2 and 3 is not to be discarded nor can the evidence of P.W. 3 be thrown out on the mere ground that he had been working as Grama Rakshi under the Sorada Police Station. P.Ws. 2, 3 and 5 were natural and competent witnesses to the occurrence. 10. The statements of P.Ws. 2, 3 and 5 had been got recorded by the investigating agency u/s 164 of the Code of Criminal Procedure by a Magistrate and thus they had been bound down to their previous statements made on oath, but for this reason, their evidence requires careful scrutiny, but is not to be rejected out right. 11. The evidence of these four witnesses with regard to the occurrence has found assurance from the evidence of the doctor (P.W. 4) who had examined P.W. 6 and had noticed four grievous incised wounds on his person which could be caused by a weapon like M.O. III and that of another doctor (P.W. 9) who had conducted the autopsy over the dead body of the deceased on April 25, 1981 and had noticed injuries which could be caused by a gun shot. His evidence is that the two pellets (M.Os. VI and VII) recovered from the body of the deceased could be fired from the gun (M.O. V) and it is in evidence that M.O. V. had been recovered from the possession of the Appellant Magata while he was returning home from the river side on the day of occurrence itself. P.W. 9 has not been able to say definitely as to whether the two pellets (M.Os. VI and VII) had been fired from M.O. V. as he has not made any test in this regard and as a matter of fact, this test is to be done by a Ballistic Expert and had been done in the instant case. 12. P.W. 9 has not been able to say definitely as to whether the two pellets (M.Os. VI and VII) had been fired from M.O. V. as he has not made any test in this regard and as a matter of fact, this test is to be done by a Ballistic Expert and had been done in the instant case. 12. Inviting our attention to the principles laid down in Ram Narain Singh Vs. State of Punjab, and Ramanathan Vs. The State of Tamil Nadu and referring to the report of the Ballistic Expert (Ext. 21), it has been contended on behalf of the Appellants that there have been serious differences between the evidence of P.Ws. 2, 3, 5 and 6 on the one hand and the report of the Ballistik Expert on the other and therefore, the evidence of these four eye-witnesses does not deserve credence. It would be seen from Ext. 21 that the opinion recorded by the Ballistic Expert is that on microscopic test, it was noticed that the two pellets had not been fired from the gun (M.O. V). It must, however, be kept in mind that none of the witnesses to the occurrence had testified that M.O. V. was the weapon of attack in the hands of the Appellant Magata. It would be seen from the evidence that four empty cartridges had been recovered from the house of the Appellant Magata during the house search on the day of occurrence and it would appear from the report of the Ballistic Expert that such cartridges had not been fired from M.O. V. This would give a sure indication that the Appellant Magata had in his possession another unlicensed gun in which the four empty cartridges recovered during his house search could be fired although no second gun had been recovered from his possession. It cannot be assumed from the evidence that M.O. III was the gun from which the shot had been fired by the Appellant Magata. In these circumstances it cannot be said that there has been any conflict between the ocular testimony and the expert's report. 13. As would appear from the evidence of D.W. 1, a doctor who had examined the Appellant Suryanarayan, this Appellant had sustained two incised wounds one of which was grievous in nature and both could be caused by a sharp cutting weapon. Ext. A is the medical report. 13. As would appear from the evidence of D.W. 1, a doctor who had examined the Appellant Suryanarayan, this Appellant had sustained two incised wounds one of which was grievous in nature and both could be caused by a sharp cutting weapon. Ext. A is the medical report. It would also appear from the evidence that Paramananda Panda had two injuries on his person, an abrasion and a bruise, both of which were simple in nature. Mrs. Padhi has contended that on the basis of the evidence of D.W. 1 with regard to the nature and ages of the injuries, it would be clear that these two persons had sustained injuries during the occurrence and the prosecution has not explained the injuries on the person of the Appellant Suryanarayan and therefore, as the genesis of the trouble and a true and complete picture have not been presented and an inherently improbable story has been put forward by the prosecution, the order of conviction of both the Appellants cannot be sustained. In this connection, reliance has been placed by Mrs. Padhi on State of Bihar v. Mohammed Khursheed 1971 C.A.R. 172 (S.C.), Selveraj Vs. The State of Tamil Nadu, and Lakshmi Singh and Others Vs. State of Bihar, . 14. It would appear from the evidence that Paramananda alias Babu has been dealt a push by Jada Panda a nephew of the Appellant Suryanarayan, when he was challenged by the children including Paramananda who had been collecting mangoes whereafter the two Appellants went to the spot from different directions being armed. There is no evidence that the Appellant Suryanarayan had sustained the two injuries on his person during the occurrence. As has been laid down by the Supreme Court in Jagdish Vs. State of Rajasthan where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries so as to satisfy the court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions, must be satisfied: (1) that the injuries all the person of the accused must be very serious and severe and not superfluous; and, (2) that it must be shown that these injuries must have been caused at the time of the occurrence in question. 15. But before this obligation is placed on the prosecution, two conditions, must be satisfied: (1) that the injuries all the person of the accused must be very serious and severe and not superfluous; and, (2) that it must be shown that these injuries must have been caused at the time of the occurrence in question. 15. The statement of P.W. 2 in her cross-examination is that none of the accused persons had been assaulted on the day of occurrence. P.W. 3 has testified that the Appellant Suryanarayan was not assaulted nor had he any injury on his person when he left the place of occurrence P.W. 5 has stated in his cross-examination that he did not know if this Appellant was assaulted at the place of occurrence and he did not mark any injury on his person as he (P.W. 5) had been standing at a distance. P.W. 6 has denied the suggestion of the defence that he came armed with M.Os. III and IV and that he assaulted the Appellant Suryanarayan by means of M.O. III and thereafter there was a struggle between them and in the process, he (P.W. 6) had sustained injuries. There is no evidence from the side of the defence that the Appellant Suryanarayan had sustained injuries during the occurrence. Thus in the absence of materials indicating that the injuries sustained by the Appellant Suryanarayan must have been caused during the occurrence the prosecution was not obliged to explain the injuries on the person of this Appellant. It is in evidence that after the deceased was done to death and P.W. 6 sustained injuries, villagers gathered on the scene and they chased the Appellants, entered their house and damaged some articles. It could be that in that process, some of the villagers had dealt some blows on the person of this Appellant. There is thus no evidence that this Appellant had sustained injuries during the occurrence. It may not reasonably be said that the genesis of the trouble has been suppressed and that a true and complete picture had not been presented at the trial. 16. For the foregoing reasons, we are at one with the trial court that the Appellant Magata had intentionally caused the death of the deceased by a gun shot and that the other Appellant had been responsible for voluntarily causing grievous hurt to P.W. 6. 17. 16. For the foregoing reasons, we are at one with the trial court that the Appellant Magata had intentionally caused the death of the deceased by a gun shot and that the other Appellant had been responsible for voluntarily causing grievous hurt to P.W. 6. 17. As has been submitted by the learned Counsel for both the sides, after a quarrel had started over the picking of mangoes in the mango tope, the two Appellants had come from different directions. In the circumstances in which they had been placed and from their acts and conduct prior to, at the time of and subsequent to the occurrence, it may not safely be said, as has been urged on behalf of the Appellants and as has fairly been submitted by the learned Standing Counsel, that both the Appellants had been actuated by the common intention to commit the murder of the deceased. But in view of the clear and direct evidence that the Appellant Magata had, with the intention of causing the death of the deceased, caused injuries sufficient in the ordinary course of nature to cause death by firing from a gun, he can be convicted u/s 302 of the Code although charged with the other Appellant u/s 302 read with Section 34 of the Code, even if the other Appellant is acquitted of this charge. For voluntarily causing grievous hurt to P.W. 6 by a sharp cutting instrument, the Appellant Suryanarayan is liable to be convicted u/s 326 of the Code. 18. In the result, the appeal is allowed in part. The order of conviction and the sentence passed against the Appellant Suryanarayan u/s 302 read with Section 34 of the Indian Penal Code are set aside. The order of conviction passed against the Appellant Magata u/s 302 read with Section 34 of the Indian Penal Code is set aside and in lieu thereof, he is convicted u/s 302 of the Indian Penal Code and the sentence to undergo imprisonment for life passed against him is maintained. The Appellant Suryanarayan is convicted u/s 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for the period already undergone by him which would meet the ends of justice. The Appellant Suryanarayan be set at liberty forthwith. P.C. Misra, J. 19. I agree. Final Result : Allowed