JUDGMENT : P.K. Tripathy, J. - Appellants faced trial in the Court of Sessions Judge, Mayurbhanj, Baripada in Sessions Trial No. 39 of 1994 for the offences under Sections 302/34, Indian Penal Code and 307/34, Indian Penal Code on the allegation that on 2.8.1993 at about 1.00 P.M. they inflicted injury by sword, spear and axe and committed murder of Rupi Majhi (hereinafter described as 'the deceased'). Appellants denied to the allegations and claimed for trial. At the conclusion of the trial on 23.11.1995 learned Sessions Judge delivered the impugned judgment convicting the Appellants for both the aforesaid offences and sentenced each of them to undergo imprisonment for life on both the counts. 2. It reveals from the FIR as well as the materials from the trial Court's record that prosecution alleges against Appellants that there was previous enmity and in view of that on 2.8.1993 when the deceased was returning after taking a bath and washing her clothes followed by her step son Kade Baskey P.W. 1 who had gone there to cut and collect grass, the Appellants attacked the deceased and in that process Appellant Govinda dealt several blows by means of sword (M.O. V) on the head and shoulder of the deceased. Appellant Geneswar dealt a blow to the right ear by means of spear (a Trishul marked M.O VI) and when P.W. 1 wanted to intervene accused Govind dealt sword blows to him so also Appellant Karu threw his axe at the informant P.W. 1. P.W. 3 the wife of P.W. 1 also was then present by the nearby place of occurrence. She also witnessed the occurrence and together with P.W. 1 ran away from the spot and after intimating a co-villager and brother of P.W. 1, they came and found that the deceased had already succumbed to the injuries and lying in a pool of blood. P.W. 1 lodged the FIR (Ext. 1) and set the law into motion. After a routine investigation the Investigating Officer P.W. 5 submitted charge-sheet for the above noted offences. In course of investigation besides conducting inquest and sending the dead body of the deceased for post-mortem examinations, he made seizure, inter alia of the, weapons of offences, i.e. the axe, sword and spear said to be on being produced by the Appellants in accordance with the provisions of Section 27 of the Indian Evidence Act. Exts. In course of investigation besides conducting inquest and sending the dead body of the deceased for post-mortem examinations, he made seizure, inter alia of the, weapons of offences, i.e. the axe, sword and spear said to be on being produced by the Appellants in accordance with the provisions of Section 27 of the Indian Evidence Act. Exts. 2, 5 and 6 are the respective seizure lists. The seized weapons, blood stained and sample earth and seized wearing apparels etc. were sent for chemical analysis and serological test to the State Forensic Science Laboratory. 3. In course of trial prosecution examined six witnesses, out of whom P. Ws. 1 & 3 are the eye witnesses to the occurrence, P.W. 4 is the doctor who conducted post-mortem examination on the dead body of the deceased and proved the post-mortem report (Ext. 7). On police requisition he also examined the M. Os. v. and VI and gave his opinion report (Ext. 8). P.W. 6 is the other doctor who granted injury certificate (Ext. 9/1). He also examined M.O. v. on police requisition and gave his opinion report (Ext. 14/1). The Investigating Officer is the P.W. 5 and P.W. 2 is the witness to the inquest and seizure. Exts. 11, 12 and 13 are the other seizure lists. Reports from the SFSL are Exts. 15 and 16. Out of the weapons of offence, the sword was allegedly used by Appellant Govind, the spear (Trishul) by Appellant Ganeswar and the axe (Budia) used by Appellant Karu as noted above, have been respectively marked as material object Nos. V, VI and I. 4. Appellants pleaded not guilty and also examined one Ghasiram Murmu as D.W. 1. 5. Evidence of P.W. No. 4 and Ext. 7 are consistent regarding the external and corresponding internal injuries found on the dead body of the deceased. In his deposition P.W. No. 4 has stated about those injuries in the following manner: External injuries: (1) Incised wound 3" x 1" x scalp deep on the right side of occiput. (2) Incised wound 3" x 1/2" x scalp deep on the right temporal bone at upper border of right pinna. (3) Lacerated wound 1" x whole of cartilage of middle part of right pinna. (2) Incised wound 3" x 1/2" x scalp deep on the right temporal bone at upper border of right pinna. (3) Lacerated wound 1" x whole of cartilage of middle part of right pinna. (4) Incised wound 3" x 1/2" x scalp deep on the right side of the head extending from right mastoid process to 1" above and back of right pinna in right occiput temporal region. (5) Bruise 2" x 2" on the left fore-head. (6) Bruise 2" x 2" on the left sygomatic process. (7) Incised wound 3" x 1" x 1/2" on the left shoulder above the wing of scapula. (8) Incised wound 3" x 2" x 1/4" on the right shoulder near upper border of right scapula. (9) Incised wound 2" x 1/2" on the right shoulder across the lateral end of clavicle. Internal Injuries: *** (1) Multiple fracture of right temporal bone. (2) Injury to superficial temporal artery of right side. P.W. No. 4 opined that the above noted external injury Nos. 1 and 2 with the corresponding internal injury No. 1 independently were sufficient in ordinary course of nature to cause the death of the deceased. He also opined that the injury was antemortem and the death was homicidal. On assessment of that evidence, learned Sessions Judge recorded that the deceased suffered a homicidal death, Before us Appellant do not challenge to the aforesaid finding relating to the homicidal death of the deceased. 6. In the trial Court defence had raised a contention regarding the time of death because some undigested food was found in the stomach of the deceased and it had been argued that the deceased had been killed in the night preceding the date of occurrence, as noted above. For good reasons assigned in the impugned judgment learned Sessions Judge rejected that defence theory. That being nobody's case and blood stained earth and sample earth having been collected from the spot under seizure list, Ext. 4, Appellants do not press that point in this forum. 7. Referring to and relying on the evidence of P. Ws. For good reasons assigned in the impugned judgment learned Sessions Judge rejected that defence theory. That being nobody's case and blood stained earth and sample earth having been collected from the spot under seizure list, Ext. 4, Appellants do not press that point in this forum. 7. Referring to and relying on the evidence of P. Ws. 1 and 3 learned Sessions Judge recorded the finding that the incised wounds were caused by the Appellant Govind by use of sword MO V, the lacerated wound found on the right pinna was caused by Ganeswar by use of the spear (M.O. VI) and since the Appellant Karu was present there, therefore, even though he did not exhibited any specific overt act against the deceased, yet all of them had shared the common intentions to kill the deceased. Accordingly he found the Appellants guilty of the offences under Sections 302/34, Indian Penal Code. In that respect learned Sessions Judge found the evidence of D.W. 1 to be of no assistance either in favour of the Appellants or as against the prosecution. He also rejected the contention of the Appellants that the injury No. 3 described in the post-mortem report and the evidence of P.W. 4 could not have been caused by the spear (M.O. VI) and referring to the evidence of P.W. 4 and Ext. 8 recorded the finding that the aforesaid injury is possible by the said spear. 8. Since bodily injury was inflicted on P.W. 1, as per the Injury Certificate (Ext. 9/1), therefore, the learned Sessions Judge without discussing much about the injury report and the evidence of P.W. 6, also recorded the finding that Appellants attempted murder of P.W. 1 by sharing of common intention and accordingly found them guilty of the offence under Sections 307/34, Indian Penal Code. 9. 9/1), therefore, the learned Sessions Judge without discussing much about the injury report and the evidence of P.W. 6, also recorded the finding that Appellants attempted murder of P.W. 1 by sharing of common intention and accordingly found them guilty of the offence under Sections 307/34, Indian Penal Code. 9. While challenging to the order of conviction under Sections 302/34, Indian Penal Code and 307/34, Indian Penal Code learned Counsel for the Appellants argues that: (i) there is no evidence worth the name to implicate the Appellant Karu for any of the offences; (ii) the Appellant Ganeswar is entitled to the benefit of doubt if not a clean cut acquittal because it appears from the evidence of P.W. 4 that there was no punctured wound though prosecution allegation is regarding dealing of a spear blow by him; (iii) there is no evidence worth the name on record to show or suggest that the injuries found on the body of P.W. 1 was sufficient to probabilise his death or that such injuries were inflicted on him by the Appellant Govind with the intention to kill the deceased or that Appellant Karu threw the axe aiming at him with the intention or having knowledge to kill him and under such circumstances none of the Appellants can be said to be guilty of the offence under Sections 307/34, Indian Penal Code. (iv) the sword M.O. v. being blunt on one side and semi blunt on the other side that could not have caused the incised wounds on the head and shoulder of the deceased and the benefit arising out of that should go in his favour and accordingly he should be granted the benefit of doubt. In support of his contention on the matter of sharing of common intention, learned Counsel for the Appellants relies on the ratio in the case of Parshuram Singh v. State of Bihar reported in 2002 (2) Supreme 234 . Relating to the weapons M.O. v. and VI and the injuries noted in Ext. 7, he relies on the case of Kathi Odhabhai Bhimabhai and others Vs. State of Gujarat, . 10. Relating to the weapons M.O. v. and VI and the injuries noted in Ext. 7, he relies on the case of Kathi Odhabhai Bhimabhai and others Vs. State of Gujarat, . 10. The learned Additional Government Advocate on the other hand concedes to the argument of the Appellants so far as the Appellant Karu is concerned relating to his non-involvement in the murder by sharing the common intention but argued that so far as the offences under Sections 307/34, Indian Penal Code is concerned, his participation cannot be denied by the Appellants inasmuch as he threw the axe aiming at P.W. 1. Repealing the other argument of the Appellants, learned Additional Government Advocate contends that evidence of P. Ws. 1 and 3, the eye-witnesses to the occurrence, clearly shows involvement of the Appellants Govind and Ganeswar in inflicting the injuries to the deceased and causing his death at the spot and such direct evidence of P. Ws. 1 and 3 are supplemented and corroborated by the other circumstantial evidence including the post-mortem report, seizure of the weapons, presence of blood stains with human blood on different material objects. Accordingly he defends the impugned judgment of conviction both for the offences Under Sections 302/34, Indian Penal Code against Appellant Govind and Ganeswar and for the conviction of all the Appellants for the offences under Sections 307/34, Indian Penal Code. 11. Allegation in the FIR as well as the evidence in the trial Court by P.W. 1 is sustained against the Appellant Govind regarding dealing of several blows by means of sword M.O. v. and one spear blow by Appellant Ganeswar. In the cross-examination P.W. 4 has stated that he did not find any punctured wound on the dead body of the deceased and the spear M.O. VI is capable of creating punctured wound, if pierced. In that respect his evidence in paragraph 5 of the deposition reads hereunder: 5. The pointed portion of the spear is sharp in both the sides. M.O. VI shall cause punctured wound if pierced, but shall not cause if the blow slips. I have not seen any punctured wound in the dead body. In Ext. 8, P.W. 4 has opined that "the injuries mentioned in the post-mortem report are possible by the weapons examined by me. M.O. VI shall cause punctured wound if pierced, but shall not cause if the blow slips. I have not seen any punctured wound in the dead body. In Ext. 8, P.W. 4 has opined that "the injuries mentioned in the post-mortem report are possible by the weapons examined by me. x x x." In that opinion report she has made a drawing showing the size and dimension of the weapons M. Os. v. and VI. Under such circumstances, we do not find any reason to differ from the conclusion arrived at by learned Sessions Judge when he states that after taking stock of such evidence on record and inspection of the weapons, he is of the opinion that the injuries found on the dead body of the deceased was possible by the said weapons. 12. Evidence of P. Ws. 1 and 3 is clear and specific notwithstanding the cross-examination by the defence that the Appellant Govind and Ganeswar dealt respective blows by means of sword and spear to cause the ante-mortem injuries and homicidal death of the deceased. It is true that the above quoted injury No. 3 found on the dead body of the deceased alone is not sufficient to cause the death of the deceased. But once Appellant Ganeswar participated in the occurrence and dealt a spear blow after the blows by means of sword (dealt by the Appellant Govind), his participation in the crime by sharing the common intention to commit the murder, is clearly made out. Thus neither the Appellant Govind nor Ganeswar are entitled to any benefit of doubt from the charge under Sections 302/34, Indian Penal Code. So far as Appellant Karu is concerned, as rightly conceded by the learned Additional Government Advocate, there is no evidence worth the name to show or suggest that he made any overt act in the whole of the occurrence when it related to the occurrence of attack or assault on the deceased. Therefore, we find that the learned Sessions Judge without distinguishing that circumstances emerging and readable from the evidence on record, made a mistake by extending the common intention to him merely because of his presence at the spot. In the case of Parsuram Singh (supra), the apex Court took note of the fact that the Appellant Nos. Therefore, we find that the learned Sessions Judge without distinguishing that circumstances emerging and readable from the evidence on record, made a mistake by extending the common intention to him merely because of his presence at the spot. In the case of Parsuram Singh (supra), the apex Court took note of the fact that the Appellant Nos. 1 and 4 though present at the spot holding a lathi and a pistol respectively u/s 34, Indian Penal Code, but they did not make any overt act except threatening the intervenors. The apex Court held from such circumstances that a case of sharing of common intention was not established. We find it appropriate to apply that analogy in favour of Appellant Karu inasmuch as though he was present at the spot being armed with an axe but he did not commit any overt act with respect to the deceased. Accordingly while maintaining the order of conviction of the Appellant Govind and Ganeswar for the offences under Sections 302/34, Indian Penal Code, we acquit the Appellant Karu from the said charge. 13. So far as the charge for the offences under Sections 307/34, Indian Penal Code is concerned, it appears from the evidence of P.W. 6 and injury certificate, Ext. 9/1 that there were two contused and lacerated wounds of the size 3 cMs. and 4 cMs. respectively and 4 and 5 cms above the left of medial malleolus that is the ankle region of the left leg. P.W. 6 has described those injuries to be simple in nature. Besides that he found one linear abrasion on the right side of the back and the aforesaid three injuries were caused by the Appellant Govind by use of sword. According to the opinion of the doctor, all such injuries are simple in nature. 14. Section 307 of the Indian Penal Code reads as hereunder: 307. Attempt to murder: Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. Keeping in view the above quoted penal provision, there is no room for doubt that the nature of the injury is not determinative to constitute the aforesaid offence although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused. Such intention may also be deduced from other circumstances. The above quoted provision makes a distinction between an act of the accused and its result, if any. Such an act may not be determined by any result so far as the present Appellant is concerned. What the Court has to see is that, irrespective of its result whether the act done was done with the intention or the knowledge under the particular circumstance as mentioned in the above quoted provision, i.e., attempt to murder. 15. There is no allegation coming from the mouth of P.W. 1 that the Appellant Govind intended to assault him with a view to kill him. On the other hand P.W. 1 has stated that "when I went to rescue my mother, the accused Govind assaulted by means of sword on my back and on my left leg." In this case the injuries are simple and not on the vital part of the body and at the same time, there is no allegation of any intention or declaration made by Appellant Govind to kill P.W. 1. Under such circumstances, the case for the offence u/s 307, Indian Penal Code is not at all made out. There is no allegation of any overt act on him P.W. 1 by Appellant Ganeswar and the allegation of throwing of the axe by Appellant Karu is non-consequential because it did not hit his body. There is nothing in the evidence of P.W. 1 that the axe was thrown aiming to hit any vital part of his body or if that would have hit him, then it would have endangered his life. Under such circumstances, we find that learned Sessions Judge failed to properly appreciate the evidence on record together with the ingredients of the offence u/s 307, Indian Penal Code and wrongly found the Appellants guilty under Sections 307/34, Indian Penal Code. Under such circumstances, we find that learned Sessions Judge failed to properly appreciate the evidence on record together with the ingredients of the offence u/s 307, Indian Penal Code and wrongly found the Appellants guilty under Sections 307/34, Indian Penal Code. Under such circumstances, we acquit all the Appellants from the charge under Sections 307/34, Indian Penal Code. Nonetheless Appellant Govind having dealt blows by means of sword and having caused simple hurt on the body of P.W. 1, we find him guilty of the offence u/s 324, Indian Penal Code. It is not disputed at the Bar that if an accused is charged for the offence u/s 307, Indian Penal Code then he can be convicted for the offence u/s 324, Indian Penal Code. We do not propose to impose separate sentence on him inasmuch as for the conviction under Sections 302/34, Indian Penal Code Appellant Govind has been sentenced to suffer imprisonment for life. 16. For the reasons indicated above, we maintain the conviction order of Appellant Govind and Ganeswar under Sections 302/34, Indian Penal Code along with the sentence awarded. We find in the judgment that it has been stated; "rigorous imprisonment for life", that be read as "imprisonment for life". So far as Appellant Karu is concerned, he is acquitted from the charge under Sections 302/34, Indian Penal Code. So far as the offences under Sections 307/34, Indian Penal Code is concerned, all the Appellants are acquitted of the said charge and Appellant Govind alone is convicted for the offence u/s 324, Indian Penal Code but as stated above no separate sentence is imposed. The appeal is accordingly allowed in part. 17. Learned Counsel for the Appellants submits that all the Appellants have been detained in jail custody. If that be so, Appellant Karu be set at liberty immediately in view of the aforesaid order of acquittal. Final Result : Allowed