Judgment Bharat Prasad Sharma, J. 1. The four appellants in this case have been convicted under Secs. 307/34 of the Indian Penal Code for having variously assaulted Tarpa Murmu, Chhoti Murmu, Hudu Murmu, Gobind Murmu and Hernia! Marandi with different kinds of weapons ; such as sword, garansa, lathi, etc, with common intention. Appellant No. 1, Badri Murmu, has been convicted under Sec. 302, I.P.C. for committing murder of Tirka Murmu. The other three appellants have been convicted of offence under Sections 302/34, I.P.C. for having shared the common intention with Badri Murmu for committing the murder of Tirka Murmu which was committed by Badri Murmu. The appellants have also been sentenced to various terms of imprisonment. Badri Murmu, appellant No. 1, has been sentenced to imprisonment for the under Section 302, I.P.C, The other three appellants have been contended to undergo life imprisonment under Sec. 302 read with Sec. 34, I.P.C. and all the four appellants have been sentenced to undergo R.I. for seven years each for offence under Sec. 307 read with Sec. 34, I.P.C. 2. The occurrence-is said to have taken place on 6th September, 1986 at village Mathatanr, within the P.S. Chitra, in the District of Deoghart at about 9 a.m. in the morning. The case was registered on the basis of a fardbeyan of one Jubati Tudu, wife of Tirka Murmu, the deceased. She stated that on the alleged date of occurrence in the morning her husband along with Gobind Murmu, Hudu Murmu and Tarpa Murmu and also Chhoti Murmu had gone to a place which was in the forest at Mathatanr. They had gone there at 6,00 a.m. in the morning to dig the foundation for constructing the house and that about 9.00 a.m. the informant went there with breakfast for four persons. By that time, they all had finished their work and they decided that they shall return to their house and then will take the breakfast and thereafter, they prepared to return. In the meanwhile, four appellants arrived there; out of them Munshu Murmu was holding a sword, Badri Murmu and barchha in his hand, Paika Murmu had a garasa in his hand and Gopin Murmu was holding a lathi and was also possessing bow-arrow. In the meanwhile, four appellants arrived there; out of them Munshu Murmu was holding a sword, Badri Murmu and barchha in his hand, Paika Murmu had a garasa in his hand and Gopin Murmu was holding a lathi and was also possessing bow-arrow. As soon as they arrived they said that they should assault and kill them and they started assaulting those five persons, who were earlier engaged in digging foundation. On receiving injuries at the hands of the appellants those persons, namely, Tarpa, Chhoti, Govind and Hudu fell down, but the husband of the informant, namely, Tirka slipped away and entered inside the chali of one Madu Murmu situated nearby. The accused-persons followed them and the ifnromant and her brother Hemlal Marandi tried to pacify the accused person, but they did not listen and they also abused them and entered inside the chali. However, Hemlal was also assaulted by the accused-persons with lathi. After entering inside the chali of Madu Murmu the four appellants surrounded and started assaulting Terka and he fell down after receiving injuries. The informant intervened and started urging the assailants not to kill her husband, but they were adamant to kill him and after the husband a barchha blow on the mouth of her husband and the victim started writhing in front of the informant and she raised alarm on which many persons started rushing towards the P.O., but the appellants fled away and the husband of the informant succumbed to his injuries. Later, information was sent to the Police Station Chitra. A Police Officer arrived there and S.I. L.P. Shrivastava, Officer-incharge of Chitra P.S., recorded the fardbeyan of the informant on the basis of which subsequently formal F.I.R. was drawn up and the case was registered and in the mean time the said S.I. L.P. Shrivastava took up investigation of the case and he prepared the inquest report of the deceased, inspected the P.O., made some seizures and prepared the seizure lists He also found some injuries on the injured persons and sent them to hospital and thereafter, recorded the statements of injured persons. Later, after receiving the post-mortem report and on completion of investigation the charge-sheet was submitted in the case and after taking cognizance the case was committed to the Court of Session where the trial commenced. 3. Later, after receiving the post-mortem report and on completion of investigation the charge-sheet was submitted in the case and after taking cognizance the case was committed to the Court of Session where the trial commenced. 3. According to the defence version the accused-persons did not assault the deceased nor they committed the murder of Tirka Murmu and actually they were falsely implicated in this case because of enmity It also appears that the land on which the foundation was dug, by the members of the prosecution party was in possession of the accused and the members of the prosecution party had gone there after making preparation to dispossess the accused-persons from the said piece of land which belonged to them and when the members of the accused side objected to it they were also assaulted by the members of the prosecution party for which a separate case was also registered. 4. In order to prove the charges against the accused-persons the prosecution examined altogether 13 witnesses in this case and also produced some documents which are admitted into evidence and have been marked Exts 1 to 7. One defence witness has also been examined in this case and certain documents have also been produced which are marked Ext. A to Ext. D series. So far as witnesses are concerned, out of 13 witnesses examined by the prosecution two of them, i.e., P.W. 6 Dr. Kameshwar Prasad and P.W. 13 Dr. Dina Nath Prasad are the Medical Officers. P.W. 6 Dr. Kameshwar Prasad held the post-mortem examination over the dead body of Tirka Murmu on 7th of September, 1986 at 1.00 p.m. while he was posted as C.A.S. in Sadar Hospital, Deoghar. He found altogether five injuries on the person of the deceased. Kameshwar Prasad and P.W. 13 Dr. Dina Nath Prasad are the Medical Officers. P.W. 6 Dr. Kameshwar Prasad held the post-mortem examination over the dead body of Tirka Murmu on 7th of September, 1986 at 1.00 p.m. while he was posted as C.A.S. in Sadar Hospital, Deoghar. He found altogether five injuries on the person of the deceased. The injuries were as follows: (i) Incised penetrating wound on left lower lip and chin 1 1/2"x1/2" x3 1/2" deep, cutting the under surface of tongue (2" x 1"x 1/2"), damaging left lower incisor and first premolar teeth which were missing with bleeding sockets and loosing the left lower two incisors, with damaging the blood vessels and other structures on left side on uppermost part of neck and damaging the structure of larynx and pharynx with extensive haematoma ; (ii) Incise wound on the upper mid-occipital 2 1/2" 1/2"x 1/4"; (iii) Lacerated wound on the left side of occipital scalp 1" x 1 /4" x 1 /4"; (iv) Abrasion in front of right knee 1" x 1/4" ; (v) Abrasion on the back of upper part of right thigh 2 1 /2" x 1 1/2"; (vi) Incised wound on the right knee 1 l/4"x 1/2" with missing skin; According to the doctor, on opening the skull haematoma was found on the right side of skull anteriorly and over occipital region. However, no fracture of skull was found. The viscera was pale and chambers were empty and contained blood mixed mnco-fluid. The cause of death according to the doctor was shock and haemorrhage as a result of above not; >d injuries specially injury No. 1 and the time elapsed since death was within 36 hours. According to the doctor, injury No. 1 was caused by sharp-cutting pointed weapon; such as barchha and injuries Nos. 2 and 6 w ;re caused by some sharp-cutting substance ; like sword and garasa. Injuries Nos. 3 to 5 were caused with hard blunt substance; such as lathi. The post-mortem report has been admitted into evidence as Ext. 2. The other doctor is P.W. 13, Dr. Dina Nath Prasad, who examined the injured persons of this case while he was posted as Medical Officer in Primary Health Centre at Palajori on 7-9-1986. Injuries Nos. 3 to 5 were caused with hard blunt substance; such as lathi. The post-mortem report has been admitted into evidence as Ext. 2. The other doctor is P.W. 13, Dr. Dina Nath Prasad, who examined the injured persons of this case while he was posted as Medical Officer in Primary Health Centre at Palajori on 7-9-1986. He had examined Hudu Murmu, son of Chhotka Murmu and found seven injuries on his person which were lacerated wound and bruise caused with some hard blunt substance ; such as lathi or blunt portion of Garasa. On the same day, he also examined Govind Murmu, son of Tarpa Murmu and found five injuries on his person out of which one was incised wound on the right parietal bone and two were lacerated injuries ; one was swelling of left palm and fifth was abrasion. Injury No. 1 was caused with some sharp-cutting weapon; whereas other injuries were caused by hard blunt substance ; such as lathi. On the same day, the doctor also examined Chhotka Murmu, Son of Late Lokhi Ram and found three injuries on his person; one being a punctured wound on the left side of the back of the chest ; another incised wound on the left parietal imminence, and the third incised wound on the left side of forehead above eye-brow. Injuries No. 2 and 5 were caused with sharp-cutting weapon ; whereas injury No. 1 was caused by sharp and pointed weapon. On the same day, the doctor also examined Tarpa Murmu, son of late Lakhi Ram Murmu and found four injuries on his person ; the first being a punctured injury. The second was lacerated wound ; the third and fourth being abrasion. The first injury, i.e. punctured wound was caused on the right temporal region. The lacerated injury was found on the left side of forehead longitudinally and two abrasions were on the upper part of right leg and upper part of the left leg. Injury No. 1 was caused by sharp-cutting weapon whereas injury Nos. 2, 3 and 4 were caused by hard and blunt substances. The lacerated injury was found on the left side of forehead longitudinally and two abrasions were on the upper part of right leg and upper part of the left leg. Injury No. 1 was caused by sharp-cutting weapon whereas injury Nos. 2, 3 and 4 were caused by hard and blunt substances. On the same day the doctor has also examined Hemlal Marandi, son of Bhagat Harandi and had found two injuries on his person ; the first one swelling of lower half of upper arm and swelling of upper half of forearm of left arm and the second injury was abrasion 3" x 1/2". These injuries were simple and caused by hard and blunt substance. These injury reports stand marked as Exts. 7 to 7/4. 5 Out of the rest witnesses in the case P.W. 4 Bhutka Murmu happens to be the village Choukidar of Matha Tand Mauza and a he had arrived at the P.O. on hearing the hullo, that Tirka Murmu was murdered. He saw the dead body of Tirka Murmu in the choti of Bhindu Murmu and he also saw Gobind Murmu, Chhotka Murmu, Hudu Murmu in injured condition and the wife of Tirka Murmu-was also present there. He learnt about the occurrence from these witnesses and then he went to the Police Station and lodged an information. P.W. 7, Bhola Nath Hazari, happens to be a witness on the inquest report. He has put his signature along with the signature of another witness Nageshwar Singh and those signatures are marked as Exts, 3 and 3/1. P.W. 9, Nageshwar Prasad Yadav is the Sub-Inspector of Police. On 22-9-1986 he was posted as Officer-in-charge of Chitra Police Station which was a subsidiary police station and he had taken the charge from L.P. Srivastava, who was the Officer In-charge of Sarath (Chitra) P.S. prior to him. After taking charge of the investigation of this case from L.P. Srivastava, he completed Investigation and on completion of investigation he submitted charge sheet in this case. However, he recorded the statements of two witnesses also. He has proved the formal F.I.R. which is Ext. 4. P.W. 10, Shatrughan Singh, is a formal witness, who has proved the fardbeyan written by L.P. Srivastava marked Ext. 5. P.W. 11, Nagendra Nath Singh, happened to be a Mukhiya of Sikiya Gram Panchayat at the time of alleged occurrence. However, he recorded the statements of two witnesses also. He has proved the formal F.I.R. which is Ext. 4. P.W. 10, Shatrughan Singh, is a formal witness, who has proved the fardbeyan written by L.P. Srivastava marked Ext. 5. P.W. 11, Nagendra Nath Singh, happened to be a Mukhiya of Sikiya Gram Panchayat at the time of alleged occurrence. According to him, on the alleged date of occurrence when he was going to Taljhari, he heard hulla and went to Mathatand and saw 4-5 injured persons there and also saw the dead body of Tirka Murmu and then he saw the injured persons, namely, Hemlal, Tarpa, Gobind, Bhadu and Chhotu. Subsequently Police Officer arrived and performed the formalities of preparing the inquest report and seizure list. He has stated that some of the injured persons, who were lying there unconscious, were picked up and after taking water they regained their consciousness. P.W. 12, Ramdeo Singh, is also a formal witness, who has proved the case diary from paragraphs 1 to 46 in the handwriting of S.I. L.P. Srivastava, who could not be examined by the prosecution in this case. P.W. 1 Rame Marandi is also a formal witness. He was the witness to the preparation of seizure lists and signature of this witness and the signatures of other witnesses on the seizure lists have been proved by him and are marked as Exts. 1. 1/1 and 1/2. The rest of the witnesses are on the point of occurrence. They include P.W. 2 Chhotka Murmu (injured), P.W. 3 Gobind Murmu (also injured) and P.W. 5 Hudu Murmu (also injured) P.W. 8, Juwati Tudu, is the informant of the case. So far as P.W. 8 is concerned, she has fully supported the prosecution story by stating that she had gone to the P.O. at about 9.00 a.m. ; whereas her husband and other family members had gone at 6.00 a.m. in the morning for digging foundation for construction of a house and she has further narrated that after her arrival when she asked to take breakfast, they said that they had finished their work and they will take their breakfast at their house. But in the meanwhile Munsu Murmu, Badri Murmu, Gopana Murmu and Paika Murmu came there. But in the meanwhile Munsu Murmu, Badri Murmu, Gopana Murmu and Paika Murmu came there. She has very clearly stated that the accused Munshu had sword in his hand ; Badri had a barchha , Gopana with bow-arrow and lathi and Paika was armed with garasa. They started abusing and assaulting them. She also stated that the accused Gopana Murmu assaulted her husband with lathi, then her husband fled away and entered inside the chali of Bhadu Murmu but all the accused-persons chased him in the chali. It has been pointed out in this regard that the size of this chali has also been measured as 5 x 12 by the I.O. and it is quite closed to the place where the foundation was dug. According to the informant (P.W. 8), when her husband entered into the chali, the accused-persons also followed him and they assaulted him with various kinds of weapons and ultimately Badri inflicted the blow with barchha on his mouth which resulted in his death, P.W. 2, Chhotka Murmu, happened to be uncle of the deceased and he had also accompanied him. When the foundation was being dug. He had also sustained injuries in course of occurrence and he has fully supported the prosecution case as narrated in the F.I.R. and stated by the Informant P.W. 8 in Court. Similarly, P.W. 3, Gobind Murmu, has also supported the prosecution story as an eye-witness to the occurrence. P.W. 5, Haddu Murmu was also accompanying the other witnesses including the deceased, who were engaged in digging and he was also attacked and assaulted by the accused-persons. Thus, he is also an injured witness. Therefore, apart from the informant herself, three other witnesses have supported the prosecution story in full and since all these three witnesses happened to be the injured witnesses of the case, their presence at the P.O. cannot be doubted in any manner. The injuries have also been found on their persons by the Doctor, P.W. 13, as stated above. 6. So far as the manner of occurrence is concerned, according to all these witnesses on the point of occurrence, i.e., P.Ws. 2, 3, 5 and 8, the accused-persons arrived at the P.O. at about 9.00 a.m. When the prosecution witnesses including the deceased had completed their job of digging foundation and they were preparing to return home in order to take breakfast. 2, 3, 5 and 8, the accused-persons arrived at the P.O. at about 9.00 a.m. When the prosecution witnesses including the deceased had completed their job of digging foundation and they were preparing to return home in order to take breakfast. They started assaulting them and when the deceased ran to save his life and entered the chali of one Bhodu Murmu, the accused-persons followed him there also and in spite of pleadings of the informant (P.W. 8), who happened to be the wife of the victim, they did not refrain from assaulting the victim and when other appellants had assaulted him with different weapons, appellant No. 1 inflicted such a heavy blow with barchha held by him in this mouth which resulted into his death. The medical evidence as discussed above and as per the evident of P.W. 6 also supports the fact that the cause of death of the victim in this case was the injuries caused to him and especially injury No. 1. The doctor has rather fairly stated that injury No. 1 was sufficient for causing death. 7. However, it has been submitted on behalf of the appellants that two aspects are worth consideration in this case. It has been submitted and pointed out from the evidence also that the land on which the foundation was being dug did not belong to the prosecution. It becomes evident from the evidence that it also did not belong to the accused side. The land was parti piece of land which was Gairmazarua and both the parties were claiming possession over the land. There was a litigation also going on between the two parties, which was pending in Court. It also becomes clear from the evidence that one day prior to this incident, the accused side had tried to dig foundation for construction of house also, but on the objection of the members of the prosecution party, the Panchayati was intervened and the accused were forbidden from making any construction: But, strangely enough, on the very following day in the early morning the members of the prosecution party went there and started digging foundation which caused reaction to the accused side as it was treated as an act of an attempt on the part of the members of the prosecution party to dispossess the members of the accused side from this piece of land which they claimed. It has also been pointed out that a case had also been filed on behalf of the accused side that some of the members of the accused party had also sustained some injuries. A prosecution witness has also admitted that some injury was caused to the accused party. The injuries were so simple and insignificant that it is immaterial whether the injuries were described in the F.I.R. and whether the injuries have been found on the accused side in this case or not. It is also clear that since none of the two parties have any paper to show their right, title and possession over the land, it is difficult to say that because the members of the prosecution party were going to dispossess the accused side from the land from digging foundation, the accused had right to save themselves to assault and commit murder. 8. It has also further been submitted that so far as actual killing of the deceased is concerned, P.W. 8 happens to be the informant of the case and the claims that she had witnessed the occurrence taking place, but so far as the other injured witnesses ; such as P.Ws. 2, 3 and 5 are concerned, it does not appear that they had any opportunity to see the killing of the victim taking place. It has been pointed out in this connection that the chali in which the murder of the victim, Tirka Murmu, is said to have been committed, is at some distance from the P.O. where assault on other witness took place and it has come in evidence that these witnesses had fallen down and become unconscious and they do not appear to have gone inside her chali when assault had taken place. Therefore, it has been submitted that their claim that they saw the appellants assaulting and killing the victim is not fit to be believed and accepted. From the evidence of Mukhiya (P.W. 11) also, it appears that when he arrived at the P.O. after the occurrence, he saw these witnesses, P.Ws. 2, 3 and 5 injured and according to him, these injured persons were picked up by him and when they were given some water they regained senses. Therefore, it appears that on receiving injuries at the hands of the assailants P.Ws. 2, 3 and 5 injured and according to him, these injured persons were picked up by him and when they were given some water they regained senses. Therefore, it appears that on receiving injuries at the hands of the assailants P.Ws. 2, 3 and 5 had become incapacitated to move further or to see the further part of the occurrence which took place inside the chali. But, so far as P.Ws. 8, the informant, is concerned, she has given a very consistent story and it gets support from P.Ws. 2, 3 and 5 also to this effect that all these four appellants arrived at the P.O. after the foundation digging was over and they attacked and assaulted the witnesses with various kinds of weapons and thereafter, they chased the deceased. It is, therefore, clear that there is doubt about the participation of the four appellants in the commission of the murder of the deceased Tirka Murmu as alleged by the prosecution in this case. 9. The defence witness in this case D.W. 1 Madho Hazari has given a different story in support of his defence of accused, but: he was neither named by the police nor tiny one stated about his presence at the P.O. His evidence is not fit to be looked into. However, the documents filed on behalf of the accused in the trial Court relate to the complaint filed on behalf of the accused as counter-case and also some papers relating to land dispute. It appears that a proceeding under Sec. 144, Cr. P.C. was earlier going on between the parties. Ext. D series is the injury reports of accused. They appear to have suffered some minor injuries which need not be explained by the prosecution. It. appears that the members of the prosecution party were not armed except that they had Sabal and Kudal with them. It does not have any impact on the merit of the prosecution case. There could not have been justification for murder of the deceased in the alleged manner as discussed above. 10. In this view of the matter, it appears that the conviction of appellant No. 1 Badri Murmu under Sec. 302, I.P.C. appears to be base 1 on sufficient material and there does not appear to be any reason to interfere with the finding of the trial Court. 10. In this view of the matter, it appears that the conviction of appellant No. 1 Badri Murmu under Sec. 302, I.P.C. appears to be base 1 on sufficient material and there does not appear to be any reason to interfere with the finding of the trial Court. It also becomes obvious that the other three appellants together entered inside the chali where the murder of victim was committed by appellant. No. 1 and others were not just standing and waiting ; rather they actively participated in assaulting the victim before final fatal blow was inflicted by appellant No. 1. Therefore, they shared the common intention of the murder of the deceased in this case by appellant No, 1 Badri Murmu. Therefore, the conviction of four appellants under Sec. 302 as also under Sec. 302 read with Sec. 34, I.P.C. does not require interference. 11. So far as the conviction of these appellants under Sec. 307 read with Sec. 34, I.P.C. is concerned, it has been contended on behalf of the appellants that from perusal of the injuries of these victims and the manner in which they were assaulted, it does not appear that these accused-persons had intention to kill them though some injuries were serious in nature. It has been submitted in this regard that had these appellants intended to kill those witnesses there was no difficulty, because there was no intervening factor and at least three of the appellants were holding dangerous weapons ; like barchha, Sword and garasa, but they do not appear to have repeated the blows on those witnesses and appear to have just inflicted some injuries to them which were also simple in nature. I find substance in the contention of the learned Counsel for the appellants in this regard and I find that it does not appear to be proper that the appellants have also been convicted under Sec. 307 read with Sec. 34, I.P.C. for having caused injuries to the witnesses with an intention to kill them. However, they have caused injury to the witnesses no doubt whereas three appellants, Badri Murmu, Manso Murmu and Paika Murmu were holding barchha, Sword and garasa with which they caused injuries ; Appellant Gopin Murmu was holding lathi with which he is said to have caused the injuries to the witnesses. However, they have caused injury to the witnesses no doubt whereas three appellants, Badri Murmu, Manso Murmu and Paika Murmu were holding barchha, Sword and garasa with which they caused injuries ; Appellant Gopin Murmu was holding lathi with which he is said to have caused the injuries to the witnesses. Therefore, the appellants, Badri Murmu, Manso Murmu and Paika Murmu appear to have committed the offence under Sec. 324, I.P.C. while appellant No. 4 Gopin Murmu committed an offence under Sec. 323, I.P.C. only. Accordingly, the conviction of the appellants under Sec. 307 read with Sec. 34, I.P.C. is converted into the conviction of appellants Nos. 1, 2 and 3 under Sec. 524, I.P.C. and the conviction of appellant No. 4 into Section 323, I.P.C. The sentences awarded are accordingly reduced to the period already undergone by the appellants and the conviction of these appellants under Sections 307/34, I.P.C., is set aside, 12. So far as the conviction of appellant No. 1 Badri Murmu under Sec. 302, I.P.C. is concerned, it is confirmed. The conviction of other three appellants 2, 3 and 4 under Sec. 302 read with Sec. 34, I.P.C. is also confirmed and the sentences awarded to them are also hereby confirmed as they do not require interference. 13. The appeal is accordingly dismissed with the modification as indicated above.