JUDGMENT R.R. Prasad, J.-All the five appellants were put on trial to face charges under Sections 302, 149 and 148 of the Indian Penal Code on the allegation that they in prosecution of their common object committed murder of Gundi Murmu. The trial court having found the appellants guilty sentenced each of them to undergo life imprisonment under Section 302/149 of the Indian Penal Code. Further the appellants Sura Tudu, Harchand Tudu and Burhna Tudu were sentence' to undergo rigorous imprisonment for two years and six months for the offence under Section 148 of the Indian Penal Code whereas appellants Arshu Tudu @ Putul Tudu and Singo Tudu were sentenced to undergo rigorous imprisonment for two years for the offence under Section 147 of the Indian Penal Code. 2. The case of the prosecution is that on 13.7.1998 while the informant Rupai Murmu (P.W. 4) at about 5 P.M. was in a field, he saw all these appellants sowing paddy seedlings in a field belonging to his cousin Gundi Murmu (deceased). His cousin Gundi Murmu who was there with his buffalo at nearby field forbade them from doing so, upon which Surai Tudu shot an arrow upon his cousin Gundi Murmu and the other appellants, namely, Harchand Tudu and Burhna Tudu, armed with Farsa rushed to kill Gundi Murmu, who fled from there but while he was fleeing Sura Tudu again shot an arrow causing injury to Gundi Murmu, as a result of which he fell down in the field of Sarju Patar and then Harchand Tudu and Burhna Tudu cut the neck of the deceased by farsa. Thereafter the appellants Putul @ Arshu Tudu and Singo Tudu indiscriminately assaulted the deceased with lathi. The deceased breathed his last there, Thereafter they dragged him to the field where they were sowing seedling of paddy. 3. After the occurrence the informant Rupai Murmu (P.W. 4) came to Dalbhumgarh Police Station alongwith his nephew Matal Murmu (P.W. 9) and Samir Patra (P.W. 3) and gave his fardbeyan at 10 P.M. on 13.7.1998 itself, upon which a case was registered and Investigating Officer Hriday' Narayan Singh (P.W. 6) took over the investigation of the case. 3. After the occurrence the informant Rupai Murmu (P.W. 4) came to Dalbhumgarh Police Station alongwith his nephew Matal Murmu (P.W. 9) and Samir Patra (P.W. 3) and gave his fardbeyan at 10 P.M. on 13.7.1998 itself, upon which a case was registered and Investigating Officer Hriday' Narayan Singh (P.W. 6) took over the investigation of the case. In course of investigation, the Investigating Officer came to the place of occurrence and made inquest on the dead body and found one arrow embedded at right side of the waist and one arrow embedded at the right arm. Apart from that, cut injuries were also found over the neck and right waist. The arrows having been extracted by the Doctor were seized (under seizure list Ext. 3/1). On holding inquest on the dead body, Inquest Report (Ext. 2) was prepared. The Investigating Officer recovered farsa said to have been used in a murder from the house of appellant Surai Tudu which was seized under seizure list (Ext. 3). The dead body was sent to Ghatshila Hospital where Dr. Om Shankar (P.W.8) did autopsy on the dead body on 14.7.1998 and found the following ante mortem injuries:(i) Arrow, metal portion only in the right arm near the elbow 2 em. deep. (ii) Full arrow in the right lower side back of chest 3.5 cm. deep piercing the liver. (iii) Sharp cut 3 em. x 1 cm. on right temporal region including pinna. Bone deep fracture of temlporal bone underlying haematoma of brain. (iv) Sharp cut 10 cm. x 2 cm. bone deep right side lower neck. (v) Sharp cut 8 cm. x 1.5 cm. right side upper neck spine bone separated. (vi) Fracture left lower arm with sharp cut 3 cm. x 1.5 cm. bone exposed. (vii) Sharp cut 30 cm. x 3 cm. back of right shoulder muscle deep. (viii) Sharp cut 28 cm. x 2.5 cm. bone deep on mid back right side. (ix) Sharp cut 30 cm. x 3.5 cm. muscle deep on the back over the pelvis. Doctor Om Shankar (P.W. 8) issued post mortem examination report (Ext. 4) with an opinion that death occurred due to shock and haemorrhage and damage to vital organ caused' by above injuries by sharp cutting substance? 4. bone deep on mid back right side. (ix) Sharp cut 30 cm. x 3.5 cm. muscle deep on the back over the pelvis. Doctor Om Shankar (P.W. 8) issued post mortem examination report (Ext. 4) with an opinion that death occurred due to shock and haemorrhage and damage to vital organ caused' by above injuries by sharp cutting substance? 4. After completion of investigation, police submitted charge-sheet against the appellants and cognizance of the offences was taken and in due course, when, the case was committed to the court of sessions, charges were framed to which the appellants pleaded not guilty and claimed to be tried. 5. In course of trial, the prosecution examined as many as 10 witnesses. Out of them, Rupai Murmu the informant (P.W. 4) cousin of the deceased and P.W. 7 Soso Murmu grandson of the deceased are the eye witnesses whereas P.W. 3 Samir Patra and P.W. 9 Matal, Murmu are the hearsay witnesses. P.W. 2 Sitha Tudu is the witness to inquest whereas P.W. 10 Gujai Soren is the witness to seizure of a tangi from the house of the appellant Surai Tudu. P.W.1 Dasrath Murmu though in course of examination-in-chief claimed to be an eye witness but in cross-examination he did not stick to his claim rather came with another version that at the time of occurrence he was at his house. 6. After closure of the case of the prosecution, the appellants were questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances appearing against them to which they denied. 7. The trial court having placed implicit reliance on the testimonies of P.Ws. 4 and 7 found the appellants guilty for the charges and hence, convicted and sentenced them as aforesaid. 8. Being aggrieved with the judgment of conviction and order of sentence the appellants have preferred this appeal. 9. 7. The trial court having placed implicit reliance on the testimonies of P.Ws. 4 and 7 found the appellants guilty for the charges and hence, convicted and sentenced them as aforesaid. 8. Being aggrieved with the judgment of conviction and order of sentence the appellants have preferred this appeal. 9. Learned counsel appearing for the appellants submitted with all vehemence that first information report said to have been lodged by Rupai Murmu (P.W. 4) cannot be the first information report in view of the evidence of P.W. 9 Matal Murmu, who has categorically stated that he gave the information first before the police station but that first information report was not brought on record by the prosecution and has been purposely suppressed as the name of the appellants may not have been there and the second information given by P.W. 4 Rupai Murmu is an after thought but the court below did not take into consideration this vital aspect of the matter. Learned counsel further submitted that the prosecution failed to establish the place of occurrence as the Investigating Officer admittedly did not find any blood stained earth at the place of occurrence, though P.W. 7 Soso Murmu has deposed that blood had spilled at the place where occurrence took place. 10. Learned counsel further submitted that the said farsa which is said to have been recovered from the house of one of the appellants was never sent for chemical examination and in that view of the matter it can never be said that the farsa recovered from the house of one of the appellants was used in the commission of murder. Learned counsel further submitted that ocular testimony does not find corroboration by the medical evidence as according to P.W. 9 Matal Murmu, the appellant inflicted injury by farsa on the stomach of the deceased but no such injury was found by the Doctor and in that situation, if there is inconsistency in between the ocular testimony and the medical evidence with regard to nature of injuries, it casts doubt on the testimony of the witness and the appellants deserve benefit of doubt. Learned counsel in support of his submission has relied upon a case of Davinder vs. Ram Dutta and Another reported in [1990 (Supp.) SCC 664] and also placed reliance upon a case of Dinesh & Another vs. State of Haryana reported in [2002 Cr.L.J 2970(SC)]. 11. Learned counsel in support of his submission has relied upon a case of Davinder vs. Ram Dutta and Another reported in [1990 (Supp.) SCC 664] and also placed reliance upon a case of Dinesh & Another vs. State of Haryana reported in [2002 Cr.L.J 2970(SC)]. 11. Learned counsel also referred to a decision rendered in the case of Syed Ibrahim .s. State of Andhra Pradesh reported in [2006(4) East. Cr.C. 36(SC)] in support of his submission that prosecution case cannot be accepted if the prosecution fails to establish the place of occurrence. 12. Having heard learned counsel appearing for the parties and on perusal of the records, I do find that as per the case of the prosecution P.W. 4 Rupai Murmu and P.W. 7 Soso Murmu are the eye witnesses. That apart, P.W.1 Dasrath Murmu though in his examination-in-chief did depose in the manner as if he is an eye witness, but in the cross-examination, he made it dear that at the time of occurrence he was in his house. Other witness produced by the prosecution is either witness to inquest or hearsay and, therefore, entire prosecution case hinges upon the testimonies of P.W. 4 and P.W. 7 and, therefore, it is to be considered as to whether their testimonies inspire confidence to be believed or not. According to P.W. 4, while he was working in a field, he saw his cousin Gundi Murmu (the deceased) and Soso Murmu (P.W. 7) in the field of Sarju Patar where their buffalo was grazing and at the same time the accused persons were sowing seedlings of paddy in the field, the case of which had been decreed in favour of the deceased and, therefore, the deceased questioned them as to why they are planting seedlings, upon which appellant Surai Tudu shot an arrow upon the deceased hitting at panjra (below the waist) and then the deceased started fleeing away and in that course Surai Tudu again shot an arrow hitting on the back and thereafter Harchand Tudu and Burhna Tudu inflicted injuries over the neck and below the waist (left side) with tangi and then other two persons Smt. Arshu Tudu @ Putul Tudu and Smt. Singo Tudu assaulted with lathi indiscriminately. On account of which the deceased died and thereafter they dragged him to the field where they were sowing paddy crop. On account of which the deceased died and thereafter they dragged him to the field where they were sowing paddy crop. The testimony of these witnesses gets support from inquest report (Ext. 2) which indicates that the Investigating Officer at the time of holding inquest on the dead body found one arrow embedded on the right side below waist and the other one was found embedded in the right hand. That apart, Investigating Officer also did find cut injuries over the neck and below the waist and this fact gets corroboration by the medical evidence as Doctor also did find that injuries over the right arm and lower side of the back of chest caused by an arrow. He found other injuries over the temporal region including pinna, right side of lower and upper neck and right shoulder mid back, back of right shoulder and near the pelvis. The fact that two arrows were embedded on the body of the deceased also finds support from the testimony of P.W. 5 (Ch0 wkidar), who had taken the dead body from police station to the hospital for post mortem examination. It would be pertinent to note here that though post mortem report as well as inquest report do suggest that one arrow was found embedded near the left side below the waist and other was found embedded over the right arm but P.W. 4 (Rupai Murmu) has testified that when the appellant Surai Tudu shot an arrow for the first time it hit left side below the waist and another shot hit at the back but of course this part of the testimony is at variance what the Doctor has found but that does not effect the truthfulness of the testimony of this witness as substantial part of the testimony of the witness does find corroboration from the medical evidence as two arrow injuries have certainly been found on the persons of the deceased and in the facts and circumstance when an arrow shot at hit arm of the deceased the possibility of witness being confused as to whether it hit back or arm of the deceased cannot be ruled out and therefore the said inconsistency does not have any adverse effect over the case of the prosecution. 13. 13. Coming further to test the veracity of this witness, it may be noted that according to this witness, he informed about the occurrence at the Dalbhumgarh Police Station, upon which a case was registered. However, on behalf of the defence it has been stated that first information report 1odged by this witness cannot be treated as first information report as according to P.W. 9 Matal Murmu (son of the deceased) was the first person, who had informed to the police about the occurrence. Initially it appeared that this submission has got some substance but when the evidences adduced by P.W. 4 (Rupai Murmu) and P.W. 9 (Matal Murmu) are read togetber, it transpired that after the occurrence both P.W. 4 (Rupai Murmu) and P.W. 9 (Matal Murmu) came to the police station as P.W. 9 (Matal Murmu) has testified that in the police station he as well as Rupai Murmu lodged the case before the police, whereas P.W. 4 (Rupai Murmu) in his cross-examination has testified that after he gave information to the police, he put his LTI over that. He has further testified in his cross-examination that he is not aware as to whether P.W. 9 (Matal Murmu) had given his LTI or not. Thus it is clear that P.W. 4 and P.W. 9 together came to the police station and P.W. 4 (Rupai Murmu) gave fardbeyan, upon which case was lodged and this fact gets corroboration from the evidence of Investigating Officer (P.W. 6) who has testified that after recording fardbeyan of P.W.4 he recorded the statement of Matal Murmu, thus it leaves no doubt that it was P.W. 4 (Rupai Murmu), who gave statement, upon which first information report was lodged. Under the circumstances, the submission, advanced on behalf of defence in this respect does not have any substance. Regard being had all the facts and circumstances as stated above, P.W. 4 (Rupai Murmu) appears to be quite trustworthy. Moreover, version of P.W. 4 (Rupai Murmu) gets corroboration from another eye witness P.W. 7 (Soso Murmu) who happens to be a child witness and is a grandson of the deceased. Regard being had all the facts and circumstances as stated above, P.W. 4 (Rupai Murmu) appears to be quite trustworthy. Moreover, version of P.W. 4 (Rupai Murmu) gets corroboration from another eye witness P.W. 7 (Soso Murmu) who happens to be a child witness and is a grandson of the deceased. According to him while he was in the field alongwith his grandfather (deceased), the appellant Surai Tudu shot an arrow and the other appellants, namely, Harchand Tudu and Burhna Tudu inflicted injury by farsa and the other two appellants, Smt. Arshu Tudu @ Putul Tudu and Smt. Singo Tudu assaulted with lathi. In cross-examination, this witness has deposed that at the place of occurrence blood had fallen on the ground. Taking note of this piece of evidence, the submission has been advanced that the place of occurrence does not get established as the Investigating Officer did not find any blood stained earth at the place of occurrence. This submission is devoid of any merit, in view of the evidence of Investigating Officer where he has testified that there was heavy rain in the area and, therefore, he did not find any stain of blood on the earth. On the contrary, objective finding of the Investigating Officer also goes to support the version of the eye witness as the Investigating Officer in course of inspection at the place of occurrence did notice that some of the paddy plants were uprooted. 14. Thus, regard being had to the facts and circumstance I do find that testimony of eye witnesses, namely, P.W. 4 Rupai Murmu and P.W. 7 Soso Murmu quite trustworthy so far it relates to accusation against the appellants, Rurai Tudu, Harchand Tudu and Burhna Tudu, more so when their testimonies get corroboration from the medical evidence. However, testimony of P.W. 4 and P.W. 7 regarding accusation of appellants Smt. Arshu Tudu @ Putul Tudu and Smt. Singo Tudu is concerned, it does not appear to be above board as their version to the effect that aforesaid two appellants also assaulted the deceased indiscriminately with lathi do not find corroboration from the medical evidence as Doctor has not found any injury caused by hard and blunt substance when according to P.W. 4, the deceased at the time of occurrence had wore only 'Lungi'. In that event when the deceased allegedly was assaulted with lathi indiscriminately by these two appellants, Doctor must have noticed the injuries caused by lathi, but admittedly no injury has been found on the persons of the deceased to have been caused by hard and blunt substance. In the circumstances, the testimonies of aforesaid two witnesses (P.Ws. 4 and 7) do not appear to be trustworthy, so far it relates to accusation against the appellants Smt. Arshu Tudu @ Putul Tudu and Smt. Singo Tudu and hence, they are entitled to be acquitted. 15. In the circumstances, I do find that the trial court has rightly found the appellants Surai Tudu, Harchand Tudu and Burhna Tudu guilty for committing murder of Gundi Murmu and consequently, the trial court has convicted them under Section 302/149 of the Indian Penal Code and also under Section 148 of the Indian Penal Code, but as I have found that the other appellants, namely, Smt. Arshu Tudu @ Putul Tudu and Smt. Singo Tudu did not share the common object in committing murder of the deceased, rather testimonies of P.Ws. 4 and 7 go to show that aforesaid three persons, namely, Surai Tudu, Harchand Tudu and Burhna Tudu were sharing the common intention and in furtherance of common intention they committed murder of Gundi Murmu. Therefore, under the circumstances, the appellants, namely, Surai Tudu, Harchand Tudu and Burhna Tudu are convicted under Section 302/34 instead of Section 302/149 of the Indian Penal Code and consequently, conviction and sentence passed under Section 148 of the Indian Penal Code against the appellants is hereby set aside as in the facts and circumstances, there does not appear to be an application of Section 149 of the Indian Penal Code, rather evidences led on behalf of the prosecution certainly go to establish that appellants in furtherance of common intention did commit offence and, therefore, there would be no bar in convicting the appellants under Section 302 read with Section 34 of the Indian Penal Code. 16. In the circumstances, the appellants, namely, Surai Tudu, Harchand Tudu and Burhna Tudu are convicted under Section 302/34 of the Indian Penal Code instead of Section 302/149 of the Indian Penal Code and the sentence of life imprisonment as has been awarded by the trial court is maintained under Section 302134 of the Indian Penal Code. 16. In the circumstances, the appellants, namely, Surai Tudu, Harchand Tudu and Burhna Tudu are convicted under Section 302/34 of the Indian Penal Code instead of Section 302/149 of the Indian Penal Code and the sentence of life imprisonment as has been awarded by the trial court is maintained under Section 302134 of the Indian Penal Code. So far the appellants Smt. Arshu Tudu and Smt. Sin go Tudu are concerned, the trial court erred in holding them guilty for committing murder of Gundi Murmu. Accordingly, the order of conviction and sentence passed by the trial court against appellants, Smt. Arshu Tudu @ Putul Tudu and Smt. Singo Tudu is hereby set aside. In the result, this appeal is allowed in part. D.G.R. Patnaik, J.-I agree.