S. K. MOHANTY, J. ( 1 ) THIS appeal from the Jail is directed against conviction of both the appellants for the offence under Section 302 read with Section 34 of the I. P. C. and sentence of imprisonment for life passed there under against each of them, appellant Pandu Kunda is the uncle of appellant Bentkar. ( 2 ) THE prosecution story; in brief, was that Urlu Kunda (deceased) father of P. W. 4 show sorcery prior to the occurrence, father, mother and sister of appellant Bentkar died. For this, appellant Bentkar supported Urlu to have killed them by sorcery When the matter stood thus, on 21. 10. 1988 at about 8 P. M. at their village Andheri Chaman when Urlu Kunda was coming from the side of his house, he was followed by both the appellant, appellant Bentkar holding the axe (M. O. 1. ). He handed over the axe to appellant Pandu. Then the latter by means of the axe, assaulted Urlu Kunda on his head as a result of which he fell down and thereafter appellant Pandu dealt 5 to 6 more blows by means of the same axe to him, after which both the appellants left the place. As a result of the head injuries, Urlu Kunda succumbed to them at the spot. ( 3 ) BOTH the appellants denied the crime alleged against them and pleaded innocence. ( 4 ) PROSECUTION relied on the direct evidence of P. W. 1, medical evidence of the doctor (P. W. 11) who held postmortem examination over the dead body of the deceased on 23. 10. 1988, the fact of discovery of the axe (M. O. 1) from the twig wall of the house of appellant Pandu on the basis of the statement made by him before the Investigating Officer while in custody, and the fact that blood was detected from the eye-brow and Pinna of the right ear of appellant Pandu. ( 5 ) THE evidence of the doctor (P. W. 11) revealed that the deceased had four incised wounds on the head. In the opinion of the doctor, all the injuries were antemortem in nature; death was homicidal and was due to hemorrhage and shock. He has specifically stated that the axe (M. O. 1) could cause the above injuries. ( 5 ) THE evidence of the doctor (P. W. 11) revealed that the deceased had four incised wounds on the head. In the opinion of the doctor, all the injuries were antemortem in nature; death was homicidal and was due to hemorrhage and shock. He has specifically stated that the axe (M. O. 1) could cause the above injuries. Considering the evidence of the doctor, the fact that the death of the deceased was homicidal is not assailed before us. ( 6 ) P. W. 1, a co-villager, has stated that while, returning from the house of his brother, he saw appellant Pandu dealing blows on Urlu Kunda by means of a Budia (axe) and at that time, appellant Bentkar was behind appellant Pandu. According to him, appellant Bentkar gave Budia to appellant Pandu. He has further stated that receiving the blows, Urlu Kunda fell down sustaining injuries and succumbed to the same at the spot. P. W. 1 claims to have seen the assault from a distance of 50 yards and at that time, the moon was shining in the east. No informity in his evidence has been pointed out by the learned counsel for the appellants at the time of hearing. ( 7 ) THE Investigating Officer (P. W. 10) has stated that appellant Pandu while in custody made a statement before him to have concealed the weapon of offence and then led him to his house and pointed at the thatched wall (wall made of twigs) and from there the 1. 0. seized the axe (M. O. 1. ). It is thus found that the axe (M. O. 1) had been concealed in an unusual place like the wall made of twigs. On chemical examination, the axe was found sustained with small amount of blood, which was, of course, not sufficient for serological test. ( 8 ) THE doctor (P. W. 3) on police requisition examined the appellant Pandu on 22. 10. 1988 and found blood clots on the internal surface of right ear and the right eye-brow. He collected them in a dry injection vial. He also collected nail cuttings and scrapping from appellant Pandu through a local barber and ultimately handed over them to the police for sending them for chemical examination. On such examination, it was found that the blood collected from the right ear and right eyebrow was human blood. He collected them in a dry injection vial. He also collected nail cuttings and scrapping from appellant Pandu through a local barber and ultimately handed over them to the police for sending them for chemical examination. On such examination, it was found that the blood collected from the right ear and right eyebrow was human blood. It was further found that the nail cuttings and scrappings were stained with blood but the amount of blood being small, serological test of the same could not be made. ( 9 ) FROM the discussions in the foregoing Paragraphs, it is found that the evidence of P. W. 1 stands corroborated by the circumstantial evidence as narrated above. As many as four incised wounds were caused by means of a sharp cutting weapon like the axe (M. O. 1) on the head of Urlu Kunda in the night hours taking him by surprise. On such facts, the legitimate conclusion is that the appellant Pandu intended to kill Urlu Kunda and ultimately killed him by axe blows. Consequently, therefore, the conviction of Pandu for the offence under Section 302, I. P. C. is unassailable and proper sentence has been awarded to him. ( 10 ) SO far as the appellant Bentkar is concerned, the only evidence against him is that of P. W. 1 who has simply stated that he handed over the axe (M. O. 1 ) to his uncle Pandu Kunda and the latter inflicted the blows. On such evidence, no inference of common intention with appellant Pandu Kunda can at all be drawn. We are, therefore, of the view that the conviction of the appellant Bentkar for the aforesaid offence cannot be sustained and he must be acquitted. ( 11 ) IN the result, the jail criminal appeal is partly allowed. The order of conviction and sentence passed against the appellant Pandu Kunda is maintained and the order of conviction and sentence passed against appellant Bentkar is set aside. He be set at liberty forthwith, if not required to be detained in connection with any other case. Ordered accordingly. Conviction of appellant P confirmed Conviction of appellant set aside.