JUDGMENT C. R. DASH, J. (1) LEARNED Trial Court found the appellants in both the aforesaid appeals guilty of offence under Section 302/ 34, I. P. C. and sentenced each of them to suffer imprisonment for life and to pay fine of Rs. 2000/- (two thousand) each, in default, to suffer further R. I. for two months each. As both the aforesaid appeals arise out of the same judgment and order of sentence passed by the learned Additional Sessions Judge, Jeypore in Criminal Trial No. 33 of 2004, they are taken up together for disposal by this common judgment. (2) PUALA Kanta Rao is the appellant in Criminal Appeal No. 379 of 2010. Tadingi Rammurty is the appellant in Jail Criminal Appeal No. 146 of 2005. They are related to each other as brother-in-law ("Sala-Bhinoi"). Kondagori Laxmi (P.W.1), wife of deceased Kondagori Sitana, is the informant. The occurrence happened at about 4 p.m. on 14-4-2004. It is alleged in the F. I. R. that on 14-4-2004 afternoon deceased Kondagori Sitana left for Dimitiguda village with his axe to get the same sharpened there. He did not return to his house in the night. Next day morning, i.e. on 15-4-2004 also he did not return. His wife (P. W. 1) proceeded to Dimitiguda to enquire from the person, to whom her husband had gone to get his axe sharpened and to enquire regarding whereabouts of her husband. That person of Dimitiguda told her that her husband left after getting the axe sharpened. He further informed P. W. 1 that along with her husband, Pola Nariga (P. W. 2) had also come and both her husband and Pola Nariga (P. W. 2) left for their village after getting their axes sharpened. On her way back to the village, she (P.W.I) found her husband lying dead near village Dimitiguda. There was cut injury on his neck and the head was almost severed from the trunk. She (P.W.1) returned to her village and enquired from Pola Nariga (P.W.2) about the incident. Pola Nariga (P.W.2) informed her that on their way back from Dimitiguda, both the appellants (Tadingi Rammurty and Puala Kanta Rao) happened to see them; Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) asked deceased Kondagori Sitana to pay back Rs. She (P.W.1) returned to her village and enquired from Pola Nariga (P.W.2) about the incident. Pola Nariga (P.W.2) informed her that on their way back from Dimitiguda, both the appellants (Tadingi Rammurty and Puala Kanta Rao) happened to see them; Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) asked deceased Kondagori Sitana to pay back Rs. 50/- (fifty) he had taken on loan from him; Kondagori Sitana (deceased) asked them to come with him to the village to take the money; both the appellants started quarreling with the deceased; they snatched away the axe held by the deceased and gave blow to his neck by that axe; when he (P.W.2) protested, they threatened him and further asked him not to disclose the matter before anybody. On getting to know about the incident, wife of the deceased (P.W.I) lodged report at the concerned Out-Post and subsequently a case was registered in Narayananpatna P. S. on the basis of the said report (Ext. 8). On completion of investigation, both the appellants were charge-sheeted for offence punishable under Section 302/34,I. P. C. (3) PROSECUTION has examined eight witnesses to prove the charge. P. W. 1 is the informant. P. W. 2 is the sole eye-witness to the occurrence. P. W. 3 is a witness to the inquest over the dead body and the relevant seizures. P. W. 4 is the witness, who saw the appellants throwing dead body of the deceased into a nearby 'Nala'. P. W. 5 is a witness, who heard from P. W. 1 about the death of the deceased. P. W. 6 is the Constable, who took the dead body of the deceased for postmortem examination. P. W. 7 is the Medical Officer, who conducted autopsy over the dead body and P. W. 8 is the Investigating Officer. (4) THE defence plea of Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) is of complete denial. He has taken the further plea that he was not present in the village on the date of occurrence. Defence plea of Puala Kanta Rao (appellant in CRLA No. 379 of 2010) is to the effect that during talk with the deceased, when the deceased assaulted him, he snatched away the axe held by the deceased and assaulted him, but Tadingi Rammurty was not there. However, none has been examined on behalf of the defence. Defence plea of Puala Kanta Rao (appellant in CRLA No. 379 of 2010) is to the effect that during talk with the deceased, when the deceased assaulted him, he snatched away the axe held by the deceased and assaulted him, but Tadingi Rammurty was not there. However, none has been examined on behalf of the defence. Learned Trial Court, on the basis of evidence adduced by P. Ws. 2, 1, 4 and 3 coupled with the defence plea of Puala Kanta Rao (appellant in CRLA No. 379 of 2010), convicted both the appellants under Section 302/34,I. P. C. and passed sentences as aforesaid. (5) LEARNED counsel appearing for Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) vehemently contends that the defence plea taken by Puala Kanta Rao (appellant in CRLA No. 379 of 2010) recorded under Section 313, Cr. P. C. clearly rules out presence of Tadingi Rammurty at the scene of occurrence and, therefore, conviction of appellant Tadingi Rammurty under Section 302/34, I.P.C. is without any basis. Alternatively, it is contended that assuming arguendo the prosecution allegation to be true, Puala Kanta Rao (appellant in CRLA No. 379 of 2010) having given the fatal blow to the neck of the deceased and the Medical Officer (P.W. 7) having found a single injury on the neck of the deceased, evidence of P. W. 2 to the effect that Tadingi Rammurty gave the second blow to the neck of the deceased cannot be believed, and, the deceased having sustained another cut injury over his left arm which is a non-vital part of the body, it can at best be held that Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) is guilty under Section 324, I. P. C. having caused hurt to the deceased by a sharp cutting weapon, but he cannot be held to be guilty under Section 302, I. P. C. by aid of Section 34 there of. LEARNED counsel for the appellant Puala Kanta Rao (in CRLA No. 379 of 2010) submits that the appellant having admitted his conduct of assaulting the deceased, there is no escape for him from the conviction, but appellant Puala Kanta Rao having mounted the assault after he was assaulted by the deceased, he is held to be guilty under Section 304, Part-II, I. P. C. and not under Section 302,1. P. C. LEARNED Additional Government Advocate, on the other hand, supports the impugned judgment. (6) IN view of admission by Puala Kanta Rao (appellant in CRLA No. 379 of 2010) in his statement recorded under Section 313, Cr. P. C, there is no escape from the conclusion that death of deceased Kondagori Sitana was a homicidal death. On the question of complicity of Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) there is eye-witness account of P. W. 2 and post-occurrence witness account of P. W. 4. Tadingi Rammurty on the other hand has taken the plea of alibi, which is supported by co-convict Puala Kanta Rao (appellant in CRLA No. 379 of 2010) alone. No other evidence has been adduced by the defence to prove the plea of alibi by Tadingi Rammurty. P. W. 2 in clear terms has testified that after sharpening their axes in the Blacksmith Shed at Bulka, he and deceased Kondagori Sitana were returning to their village; it was about 3 p.m. then; on the way near the hut of Tadingi Rammurty they found the appellants coming from their front side; on seeing the deceased, the appellants asked him to repay the loan amount of Rs. 50/-, but the deceased could not pay the money, as he was not instantly possessing any cash and he assured to pay back the money on his return to his home; appellant Puala Kanta Rao snatched the axe from the deceased and dealt a blow by that axe on the neck of the deceased; subsequently appellant Tadingi Rammuty also dealt an axe blow on the neck of the deceased after snatching the said axe from appellant Puala Kanta Rao. There is nothing in the cross-examination of P. W. 2 to disbelieve him. The defence has only suggested him (P. W. 2) that he having killed the deceased, has alleged falsely against the appellants. There is nothing to doubt presence of P. W. 2 in the company of the deceased at the time of occurrence. There is nothing to suggest motive on the part of P. W. 2 to falsely implicate the convicts. P. W. 2 is corroborated by P. Ws. 1 and 3, before whom he had disclosed the entire incident on the next day of the occurrence. There is nothing to suggest motive on the part of P. W. 2 to falsely implicate the convicts. P. W. 2 is corroborated by P. Ws. 1 and 3, before whom he had disclosed the entire incident on the next day of the occurrence. He (P.W.2) has explained as to why he did not disclose the occurrence before anybody on the day of occurrence itself. P. W. 2, as deposed by him, was threatened by the appellants not to disclose the occurrence before anybody. He being a rustic witness, it was obvious on his part to be struck by fear on seeing the ghastly scene of murder before his eyes. In view of such fact, his silence for one day without disclosing the occurrence before anybody does not in any way affect the prosecution case. P. W. 2 is further corroborated by P. W. 4 on the question of presence of Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) at the scene of occurrence, inasmuch as he has testified to have seen both the convicts on the date of occurrence, while he was collecting fire-wood; he had also seen both the convicts throwing the deceased into the nearby 'Nala', but due to distance of the spot from the place he (P.W.4) was positioned, he could not see the occurrence in details. There is also evidence of P. Ws. 2 and 4 to the effect that the occurrence happened near the land of Tadingi Rammurty (appellant in JCRLA No. 146 of 2005). There is nothing in the cross-examination of P. W. 4 to disbelieve him. On the other hand, plea of alibi by the defence is omnibus. Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) in his statement recorded under Section 313, Cr. P. C. has only stated that he was not present in the village on the date of occurrence; he has, however, not stated as to where he had gone or why he had gone or the distance of that place from the spot of occurrence. Similarly, Puala Kanta Rao (appellant in CRLA No. 379 of 2010) in his statement recorded under Section 313, Cr. P. C. has given an omnibus statement to the effect that Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) was not there at the spot. Taking into consideration the statements of the convicts recorded under Section 313, Cr. Similarly, Puala Kanta Rao (appellant in CRLA No. 379 of 2010) in his statement recorded under Section 313, Cr. P. C. has given an omnibus statement to the effect that Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) was not there at the spot. Taking into consideration the statements of the convicts recorded under Section 313, Cr. P. C. and evidence of P. Ws. 2 and 4, we are of the view that learned Trial Court has rightly rejected the plea of alibi taken by Tadingi Rammurty (appellant in JCRLA No. 146 of 2005). In view of the evidence of P. Ws. 2 and 4, which inspires confidence, we do not find justification to take a different view. (7) P. W. 7, the Medical Officer, has found the following external and internal injuries on the dead body of the deceased :- "(1) xxx xxx xxx xxx (2) Ante-mortem chop wound of size 15 cm. x 6 cm. x 10 cm. over the right side of the neck extending almost up to the left ster- nomastoid cutting across the deep structures of the neck. (3) Another chop wound of size 10 cm. x 6 cm. x 4 cm. It was also ante-mortem in nature over the left arm. (4) An abrasion 5 cm. x 2 cm. over the mid scapular space. It was also ante-mortem in nature. (5) Split laceration of size 10 cm. x 2 cm. x bone depth over the right parietal region. Ante-mortem in nature. (6) Spinal cord has been severed at the level of C-7. (7) Right external and internal carotid artery was being bisected along with jrupeging vein. (8) The deeper structures over the right side of the neck including the right sterno- mastoid, trapezius and masseter had been severed. Linear fracture of the 7 cervical vertebra with dislocation." Cause of death, according to the Medical Officer (RW. 7), is hypovolimic shock as a result of haemorrhage leading to cardiac failure. On examination of the axe (M. O.-I), he has further opined that the injuries found on the dead body of the deceased could have been caused by that axe (M.O.-I). (8) FROM the aforesaid injuries, as found by the Medical Officer (RW.7), on the dead body of the deceased, it seems to us that aforesaid injury Nos. On examination of the axe (M. O.-I), he has further opined that the injuries found on the dead body of the deceased could have been caused by that axe (M.O.-I). (8) FROM the aforesaid injuries, as found by the Medical Officer (RW.7), on the dead body of the deceased, it seems to us that aforesaid injury Nos. (2) and (3) were caused by sharp edge of the axe (M.O.-I), injury No. (5) might have been caused by grazing of the sharp edge of the axe (M.O.-I) while causing injury No. (2) to the right side of the neck; injury No. (4) might have been caused on the scapular area either by grazing of sharp side of the axe or the blunt side thereof while causing injury No. (3). It is clear from the details of injuries described by the Medical Officer (R W. 7) that two injuries have been caused, i.e., injury Nos. (2) and (3) by sharp edge of the axe (M.O.-I) and injury No. (2) being on a vital organ of the body, has caused internal injury Nos. (6), (7) and (8) supra. We, therefore, have no hesitation to hold that injury No. (2) is the fatal injury and the same having affected the right external and internal carotid artery and jrupeging vein, the same has resulted in hypovolimic shock resulting in the death of the deceased. According to P. W. 2, Puala Kanta Rao (appellant in CRLA No. 379 of 2010) dealt the first blow by the axe (M.O.-I) on the neck of the deceased and, snatching the said axe Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) gave the second blow on the neck of deceased. We have already believed and accepted the evidence of P. W. 2 to be believable. Prosecution has not proved that injury No. (2), which is the fatal injury, is the result of more than one blow. P. W. 2 has testified about two blows with the axe (M.O.-I) by the appellants, i.e. first blow to the neck of the deceased by appellant Paula Kanta Rao and with the same axe second blow to the neck of the deceased by appellant Tadingi Rammurty. P. W. 2 has testified about two blows with the axe (M.O.-I) by the appellants, i.e. first blow to the neck of the deceased by appellant Paula Kanta Rao and with the same axe second blow to the neck of the deceased by appellant Tadingi Rammurty. Taking into consideration the circumstances in which the blows were given and the fact that P. W. 2 was fear struck and further the medical evidence to the effect that another chop wound was there over the left arm of the deceased, we are of the view that the second blow, as testified by P. W. 2 to have been dealt by appellant Tadingi Rammurty, has resulted in injury No. (3) over the left arm of the deceased. In view of our discussion supra on nature of injuries and the cause of death of the deceased, injury No. (3) so held to be caused by appellant Tadingi Rammurty cannot further be held to have contributed to the cause of death of the deceased. (9) TAKING into consideration, the facts in their entirety, Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) cannot be held to have caused the fatal injury No. (2) to the deceased. The occurrence having happened suddenly and Puala Kanta Rao (appellant in CRLA No. 379 of 2010) having mounted the assault all of a sudden by snatching the axe from the deceased before anybody could perceive or think about such an act by a person unarmed and Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) in quick succession having inflicted the second blow causing the aforesaid injury No. (3), he cannot be held liable under Section 302, I. P. C. by aid of Section 34 thereof inasmuch as he cannot be said to have shared the common intention with Puala Kanta Rao (appellant in CRLA No. 379 of 2010) to cause murder of the deceased. He may be held guilty for his individual act alone and not by aid of Section 34, I. P. C. (10) IN the premises as aforesaid, Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) is held guilty under Section 324, I. P. C. for having inflicted injury No. (3) supra by the axe (M. O.-I), which is a weapon/instrument of cutting. His conviction under Section 302/34, I. P. C. by the learned Trial Court is, therefore, set aside. His conviction under Section 302/34, I. P. C. by the learned Trial Court is, therefore, set aside. He is sentenced to suffer rigorous imprisonment for three years. Learned counsel for the appellants submits that Tadingi Rammurty (appellant in JCRLA No. 146 of 2005) is in custody since the date of his arrest, which period is more than three years imprisonment. IN view of such submission, appellant Tadingi Rammurty be released from custody forthwith, if his detention is not required in any other case. Jail Criminal Appeal No. 146 of 2005 is accordingly allowed in part. In view of the submission advanced by learned counsel for appellant Puala Kanta Rao (in CRLA No. 379 of 2010), the only question that remains for consideration is whether the act of this appellant is culpable under Section 302, I. P. C. or 304, Part-II, I. P. C. (11) LEARNED counsel for the appellants submits that when the deceased assaulted Puala Kanta Rao, he, in order to counter such assault, snatched away the axe from the hands of the deceased and mounted the fatal assault on the deceased. Same is the defence plea in the statement of Puala Kanta Rao recorded under Section 313, Cr. P. C. P. W. 2 is the eye-witness to the occurrence. There is, however, no suggestion to P. W. 2 to that effect. P. W. 2 having not testified about any such assault by the deceased and appellant Puala Kanta Rao having taken an omnibus defence plea to the effect without any cogent material to prove such plea, we are not inclined to accept the defence plea of initial assault by the deceased and reflex counter assault by appellant Puala Kanta Rao snatching the axe from the hands of the deceased. LEARNED counsel for the appellants has relied on various decisions to bring the case under the Exceptions to Section 300,I. P. C. But all the decisions would have been made applicable, had we accepted the defence plea of initial assault by the deceased and reflex counter assault by Puala Kanta Rao (appellant in CRLA No. 379 of 2010). (12) THE Medical Officer (P. W. 7) has opined that the injuries found on the dead body of the deceased are sufficient in ordinary course to cause death. Injury No. (2) is the fatal injury. (12) THE Medical Officer (P. W. 7) has opined that the injuries found on the dead body of the deceased are sufficient in ordinary course to cause death. Injury No. (2) is the fatal injury. THE same was caused with such severity that the sharp side of the axe having grazed the right parietal head of the deceased, had fallen on the right side of the neck affecting the right carotid artery along with jrupeging vein and fractured C-7. Taking into consideration totality of the facts, we are further of the view that Puala Kanta Rao (appellant in CRLA No. 379 of 2010) had intended the particular injury, which has proved to be fatal. Had he not intended to the particular injury, he would not have aimed at the neck of the deceased while he stood defence-less. Accordingly, we are constrained to hold that the act of Puala Kanta Rao (appellant in CRLA No. 379 of 2010) falls under Clause Thirdly of Section 300,I. P. C. and he is liable under Section 302,I. P. C. We, therefore, find no justification to interfere with the conviction and order of sentence passed against Puala Kanta Rao (appellant in CRLA No. 379 of 2010). In the result, Jail Criminal Appeal No. 146 of 2005 is allowed in part in accordance with the terms in paragraph-14 supra and Criminal Appeal No. 379 of 2010 is dismissed.