JUDGMENT VINOD PRASAD, J. - Appellant father Kampala Mahananada(A2) his son Daya Mahananda(A1) and one Rajiba Barik(A3) are in appeal before us which emanates against the impugned judgment and order dated 12.2.2008 passed by Additional Sessions Judge,(F.T.C.), Bargarh in Crl. Trial No. 47/13 of 2006, State versus Daya Mahananda and others (arising out of G.R.Case no. 205 of 2005 and P.S.Case 155), by which appellants were found guilty of offences u/s 341/323/302/34I.P.C. and were convicted for those crimes and were sentenced to imprisonment for life for the charge of murder u/s 302/34 I.P.C. and since learned trial Court was of the view that “ As all of them(convicts) have been sentenced to undergo life imprisonment u/s 302/34 I.P.C. , so there is no reason to award separate sentence in relation to Sections 341/323/34 I.P.C. Furthermore sentence of life imprisonment is an extreme penalty and adding a sentence of fine to it is not necessary” that he did not pass any separate sentence for rest of the proved offences. 2. A priory we note that the appeal was filed by all the three appellants but pendent lite two of them (A1) & (A2) expired on 26.11.2011 and 08.12.2012 respectively that their appeals stands abated and consequently we are considering appeal of only (A3). 3. Recapitulating prosecution case against the appellants, as was stated before the learned trial Judge in the concerned Sessions Trial, it is discernible from the FIR Ext.2 and depositions of fact witnesses Rajesh Mahananda/PW1, Rukmini Dip/ PW4, Illa Dip/PW5, Rajanikanta Mahananda/ PW10 and Dasarathi Mahananda/ PW11 that the appellants are the co villagers of the informant and the deceased Balram Mahananda who was the son of Dasrathi Mahananda/PW11, husband of Padma Mahananda/PW3, and elder brother of PW2 and PW10. Another co villager Khageswar, whose house situated at a distance of 300 meters from the house of deceased and his witnesses father and brothers was a contractor and he had purchased sand of about Rs.2200/= from the deceased Balram Mahananda. On 15.11.2005 Balram(deceased) went to Khageswar to demand the payment of the sale price but Khageswar refused to make the payment and a verbal duel between them had ensued amidst which the appellants also tried to intervene but were forbade by the deceased not to do so. On 15.11.2005 Balram(deceased) went to Khageswar to demand the payment of the sale price but Khageswar refused to make the payment and a verbal duel between them had ensued amidst which the appellants also tried to intervene but were forbade by the deceased not to do so. Deceased thereafter returned from Khageswar’s house and while returning, when he arrived in front of the house of the appellants at 4 p.m., at a distance of 200 meters from his house, all the appellants belaboured him with lathi and when PW2 tried to intervene, he too was inflicted with lathi injuries at the back of his head by A1 and A2 making him unconscious. Rajiba Barik(A3) picked up a stone from the ground and threw it at Balram’s head because of which he(Balram Mahananda) squatted on the ground face downwards and lost his senses. This incident was witnessed by Rukmini/PW4, Illa/PW5, Manjula and many others. Both the injured were shifted to Barpali hospital for treatment in a trolley rickshaw by Rajnikanta Mahananda/PW10 where the doctor advised PW10 to shift his injured brothers to V.S.S.Medical College and Hospital, Burla and consequently they were admitted in Burla hospital where Balram Mahananada breathed his last soon after his admission. 4. Being made aware of the incident that informant Bihari Mahananda/PW6 came to the incident scene where at his instance FIR, Ext.2 was taken down by Judhisthir Pradhan/PW7, an advocate clerk, and thereafter the same was lodged at Barpali police station at 4.30 p.m. at a distance of 5 KMs. 5. Jayant Kumar Mahanti, ASI police station Barpali had registered the FIR vide P.S. case no. 155 of 2005 u/s 341/323/325/307/34 I.P.C. vide Ext.2 and the information about the same was relayed to Om Prasad Patra, O.I.C. Barpali/PW15, which he received at 4.40 p.m. and hence PW15 immediately commenced the investigation into the crime and came to the incident spot at 4.45 p.m. and sketched site plan, collected blood stained and sample earth, one blood stained stone(M.O.III), and two bamboo lathis(M.O.I & II) and prepared their seizure list Ext 1/1. Same day at 9.45 p.m. information regarding death of the deceased was conveyed to the I.O./PW15. I.O. slated down statements of the witnesses and also seized attires light brown colour Gamacha(M.O.IV), Lungi(M.O.V) and blood stained white colour Gamacha(M.O.VI). Same day at 9.45 p.m. information regarding death of the deceased was conveyed to the I.O./PW15. I.O. slated down statements of the witnesses and also seized attires light brown colour Gamacha(M.O.IV), Lungi(M.O.V) and blood stained white colour Gamacha(M.O.VI). All the accused were arrested from their house on 17.11.2005 and their nail clippings were also collected on same day through medical officer and their clothes were also seized vide Ext.3/2,4/2 and 5/2. Clothes of (A1), Shirt and Dhoti are M.O.VII & VIII and black Pant and half shirt of Rajiba Barik(A3) are M.O. IX & X. On 18.11.2005 I.O. received inquest report, Post Mortem Examination report, dead body challan, and supplementary case diary concerning the deceased and there after examined the injured PW2 and received injury reports from C.H.C Barpali. All the M.O.s were dispatched for forensic examination to R.F.S.L., Ainthapali vide Ext.10 and the report of chemical examination is Ext. 11. Closing investigation, I.O. submitted charge sheet against all the accused appellants on 16.3.2006. 6. Medical examination of both the injured were conducted on 15.11.2005 at C.H.C. Barpali by Specialist O.N.G Dr. Bighnaraj Pradhan. Balram Mahananda was examined at 5.30 p.m whereas Rajesh Mahananda/PW2 was examined at 5.40 p.m. and their medical examination reports are Ext. 7 & 8 respectively. On the person of Balram Mahananda, the injured/deceased, doctor had noted following injuries:- (i) Laceration 1” x ½” x ¼” over occipital and right parietal region of head. (ii) Bruise 4” x ½” x ¼” over back. Both the injuries were simple in nature and were caused by some hard and blunt object within 24 hours. Injured was bleeding from his ear suggestive of intracranial bleeding and was referred to VSS Medical College and Hospital Burla. 7. On the person of injured Rajesh Mahananda, doctor had found only one Bruise 4”x 1 ½” x 1” over left temporal area of head which was simple in nature and was caused by some hard blunt object within 24 hours of examination and this injured too was refrerred to Burla Medical College and Hospital. 8. Autopsy on the cadaver of the deceased was conducted on 16.11.2005 by Dr. Abhiram Behra, Associate Professor of F.M.T. at V.S.S.Medical College Burla/PW 16 and following ante mortem injuries were noted by the doctor in autopsy report Ext. 12:- (i) Lacerated wound 2 C.M. x 0.5 C.M. x bone deep on right parietal eminence. 8. Autopsy on the cadaver of the deceased was conducted on 16.11.2005 by Dr. Abhiram Behra, Associate Professor of F.M.T. at V.S.S.Medical College Burla/PW 16 and following ante mortem injuries were noted by the doctor in autopsy report Ext. 12:- (i) Lacerated wound 2 C.M. x 0.5 C.M. x bone deep on right parietal eminence. (ii) Lacerated wound 1.5 C.M. x 0.5 C.M. x bone deep present 2.5 .M. below the Injury (i). (iii) Contusion 2 C.M. x 1 C.M. on left fore-head. (iv) Contusion 1 C.M. x 1 C.M. on tip of left shoulder. (v) Contused abrasion 1 C.M. x 1 C.M. on left olecranon process. (vi) Swelling of right hand on dorsal surface. 9. On internal examination, post mortem doctor had found that scalp was contused on the whole of the right side and there was comminuted fracture of right parietal bone below injuries no. (i) & (ii) over an area of 8 cm x 3 cm and there were multiple bone pieces on the fractured site. Diffusion of subdural haematoma on the left side of the brain was present. A linear fracture of middle cranial fossa horizontally placed on the right side was also detected. Subarachnoid haemorrhage on base of both hemispheres with intra cerebral haemorrhage in an area of 3 cm x 5 cm on internal capsule of brain were also present. All other organs were congested and stomach of the deceased was empty. 10. In doctor’s opinion, all injuries were ante mortem and were caused by hard and blunt object like stick or rod and head injury was fatal in ordinary course of nature and was sufficient to cause death. Coma ensued because of above injury was the cause of death which had occurred some 18 to 24 hours ago. 11. In the Sessions trial, after committal of the case, accused were charged with offences u/s 341/34, 323/34,307/34 and 302/34 I.P.C. on 12.3.2007 by the learned Addl. Sessions Judge ( F.T.C.), Bargarh which they denied, pleaded not guilty and claimed to be tried. 12. In the trial prosecution examined in all sixteen witnesses, out of whom Rajesh Mahananda/ PW2, Rukmini Dip/PW4, Illa Dip/PW5, Rajnikanta Mahananda/PW10, Dasrathi Mahananda/PW11 appeared as fact witnesses. The two doctors are PW 12 and 16 and I.O. is PW15. Scribe of the FIR is PW7 and informant is PW6. 12. In the trial prosecution examined in all sixteen witnesses, out of whom Rajesh Mahananda/ PW2, Rukmini Dip/PW4, Illa Dip/PW5, Rajnikanta Mahananda/PW10, Dasrathi Mahananda/PW11 appeared as fact witnesses. The two doctors are PW 12 and 16 and I.O. is PW15. Scribe of the FIR is PW7 and informant is PW6. Two Seizure witnesses Abdhuta Bibhar/ PW8 Bruhaspati Churia/ PW9 turned hostile and did not support prosecution case. They have deposed that they had signed on blank papers. Gurudev Seth/ PW1 also turned hostile and did not state any fact. Padma Mahananda/ PW3, widow of the deceased, who was pregnant on the date of the incident, is a post incident witness. 13. Defence of the appellants was of total denial and false implication and they examined three defence witnesses namely Kampala Mahananda(A1) as DW1, Khageswar Mahananda/DW2, and Raghu Mahananda/DW3. (A1) also pleaded alibi and his absence during the incident as according to his defence he was at village Kirkichipali in district Boudh. 14. Learned trial Court held that guilt of the appellant has been well anointed and charges against them have been proved to the hilt consequentrly, convicted and sentenced the appellants as has already been mentioned in the opening part of this judgment which has generated the instant appeal at the behest of the convicted accused. It is recollected that (A1) & (A2) are dead and their appeal already stands abated and hence we are required to consider appeal of only surviving appellant Rajib Barik (A3). 15. In the preceding back ground that we have heard Sri Ashok Kumar Misra, learned counsel for the appellant and Sri J.Katkia, learned AGA for the respondent state and have carefully perused the trial Court record and the evidences both oral and documentary. 16. Castigating impugned judgment, learned counsel for the appellant raised only a maiden contention that even if the prosecution version is taken on its face value, the only crime against the appellant (A3) which can be said to have been established will fall only u/s 304, Part-I, I.P.C. and hence recorded conviction of the said appellant u/s 302/34 I.P.C. is unsustainable. Learned counsel articulated his submission by referring to many passages of evidences of all the fact witnesses to bring home his contention and did not raise any other argument. 17. Learned counsel articulated his submission by referring to many passages of evidences of all the fact witnesses to bring home his contention and did not raise any other argument. 17. Learned AGA referring to the injuries as noted in the autopsy report submitted conversely and contends that the impugned judgment is infallible and be upheld. 18. We have given our thoughtful considerations over rival submissions. Since the only snipping of the impugned judgment lies in the sphere of the offence established against the appellant that we propose to deal with that aspect only. In that context when eye witness account about the incident is scanned, it becomes manifest that according to injured witness/PW2, whose presence during the incident is unquestionable, the incident occurred while deceased was passing through the front of the house of the appellant. (A3) at the initial stage of the incident was empty handed and did not carry any weapon. No motive was ascribed to him to indulge into the incident. Prior to the assault there was heated exchange of words between the deceased and the appellants. Assault has started when rest of the two dead appellants had launched an assault on the deceased by lathis and had inflicted him injuries. In the last (A3) had picked up only a stone brick which he threw at the deceased causing him injuries noted by Dr. Pradhan/ PW 12. He had not attempted to assault the deceased for the second time nor had assaulted anybody else. (A3) had not assaulted the deceased holding the stone brick in his hand. It has been stated by PW2 in examination-in-chief that “While my brother was returning all the accused persons assaulted him by lathi. Seeing the assault on my brother I intervened. But accused Daya Mahananda assaulted me by lathi on the back side of my head. Accused Rajib Barik assaulted my brother by a stone on his head. Due to the assault I became unconscious.” During cross examination he deposed in para 7 “Due to assault my brother lost his sense. The assault continued for ten to fifteen minutes. The stone was about one feet in length and the breadth was about 10 inches. It was a square size stone. I cannot say exactly the weight of the said stone. But it would be about 25 Kgs. The assault continued for ten to fifteen minutes. The stone was about one feet in length and the breadth was about 10 inches. It was a square size stone. I cannot say exactly the weight of the said stone. But it would be about 25 Kgs. Accused Rajib lifted the stone from the ground up to five feet and threw the same on the head of my brother. Due to such stone blow, the brain matter came out side.” Similar is the statement of Rukmini Dip/PW4. Illa Dip/PW5, who is the elder sister of the deceased, also made similar statement but she also deposed that by the time PW2 arrived at the spot (A3) had already given a stone blow on the head of the deceased. PW10, another brother of the deceased also testified the same evidence in his examination-in-chief. From his cross examination in para 11, it emerges that first assault on the deceased was made by Daya (A1) and then (A2) had assaulted him and it was only thereafter that (A3) is alleged to have assaulted the deceased. Thus the role ascribed to (A3) is that he had in the last gave a stone blow after picking it from the ground. Dr. Bighnaraj Pradhan/PW12, who had examined the injured /deceased at the first instance had noted only two injuries mentioned herein above, out of which only one was the lacerated wound. He has referred the nature of both the injuries to be simple. This doctor was not declared hostile by the prosecution although his evidence is discrepant from the evidence of autopsy doctor who detected two lacerated wounds on right parietal region of the head of the deceased. Rest of the wounds were only contusions on forehead, left shoulder, left olecranon process and a swelling on dorsal surface of right hand. Only the head injury was found to be fatal. In such a view, it is difficult to positively conclude that all the appellants shared the same intention of murdering the deceased. Who gave two fatal blows is not known and what is of utmost significant is that the autopsy doctor looking to the dimension of the injury and its nature had opined that the same was inflicted by stick or rod. Who gave two fatal blows is not known and what is of utmost significant is that the autopsy doctor looking to the dimension of the injury and its nature had opined that the same was inflicted by stick or rod. It is significant to note that in inquest memo, it is mentioned that the injuries were caused by stick or rod and there was no mention of any stone as is perceptible from the evidence of PW10. Appreciation of testimonies further indicates that eye witness account is not that truthful as all of them had tried to exaggerate the gravity of the crime by disclosing that the assault continued for fifteen minutes or that deceased was beaten more than twenty times. There are other discrepancies as well. Taking entire depositions into consideration, we are forced to give sufficient space to the appellant(A3) and therefore are of the view that the proven crime against the appellant will be within the fold of Section 304, Part-I, I.P.C. only and will not be within the purview of 302 I.P.C. We are also fortified in our opinion because deceased had no crush injury which he should have sustained in case his head was crushed by a stone. In our ultimate conclusion we are fortified by the decision of the apex Court in Kotwal versus State of Madhya Pradesh: AIR 1994 SC 564 , wherein it has been observed as under:- “So far as the appellant is concerned, the High Court relied on the evidence of P. W. 3 who deposed that it was the appellant who caused the lacerated injury on the head by throwing a stone. As a matter of fact this evidence finds corroboration from the medical evidence. Even in the F.I.R., it was mentioned that it was the appellant who threw the stone on the head of the deceased as a result of which the brain matter came out. The High Court has given good reasons for convicting the appellant u/ S. 304, Part II, I.P.C. and sentence awarded also is not excessive. Therefore the appeal is dismissed.” In Hardev Singh versus State of Punjab: AIR 1975 SC 179 it has been observed by the apex Court as under:- “8. The prosecution version of the occurrence as told by the two eye witnesses P. Ws. 7 and 8 is like this. Therefore the appeal is dismissed.” In Hardev Singh versus State of Punjab: AIR 1975 SC 179 it has been observed by the apex Court as under:- “8. The prosecution version of the occurrence as told by the two eye witnesses P. Ws. 7 and 8 is like this. After overtaking Kewal Singh appellant Harjinder Singh first gave a takwa blow on his head. He fell down. Then his mother Tej Kaur who was an old lady of about 55 years reached the spot. She lay herself on Kewal Singh in order to save him. Appellant Hardev Singh inflicted a kirpan blow on her head. She fell down and became unconscious. Thereafter accused Piara Singh gave two-three sota blows to Kewal Singh. The tests laid down by this Court in the case of Virsa Singh v.The State of Punjab. 1958 SCR 1495 = ( AIR 1958 SC 465 ) have often been adopted as the guideline to find out whether an author of an injury which on objective test has been found to be sufficient in the ordinary course of nature to cause the death of the victim had intended to cause that particular injury which caused the death. The question in such a case which falls for determination is whether the causing of the fatal injury was accidental or unintentional or whether some other kind of injury was intended to be inflicted by the assailant. Ordinarily and generally once the existence of the injury is proved, the intention to cause it will be presumed unless the evidence of the circumstances warrant an opposite conclusion. On facts similar to the present ones it was held in the case of Harjinder Singh v. Delhi Administration, AIR 1968 SC 867 by this Court that it could not be said with any definiteness that appellant Harjinder Singh of that case had aimed the blow at the particular part of the body of the victim knowing that it would cut the artery. In the circumstances of that case it was held that it was not proved that it was the intention of the appellant to inflict the particular injury on the particular place. In the circumstances of that case it was held that it was not proved that it was the intention of the appellant to inflict the particular injury on the particular place. The facts of the instant case are on such a border line that relying upon the decision of this Court in AIR 1968 SC 857 the trial Court convicted appellant Hardev Singh under Section 304, Part I while distinguishing the same decision the High Court chanced his conviction to one under Section 302. In our opinion the tilting balance of the facts and circumstances of this case is such that it is not safe to maintain the conviction of appellant Hardev Singh under Section 302 of the Penal Code. The common intention of the accused party was to assault Kewal Singh. Only simple injuries were caused to him by appellant Harjinder Singh and accused Piara Singh. It indicates that the accused party had not intended either to kill Kewal Singh or to cause any grievous hurt to him. It does not appear from the prosecution evidence that Kewal Singh escaped getting severe injuries due to anything intervening, accidentally between the assailants and the victim. Tej Kaur came suddenly when Kewal Singh was being assaulted. She lay herself on her son. Darkness must have fallen, though it may not be pitch dark, at about 7.00 p. m. in the month of February. It is not clear from the evidence of the prosecution that appellant Hardev Singh aimed his kirpan blow at the head of Tej Kaur. It may well be that Hardev Singh wanted to give a kirpan blow to Tej Kaur as she lay herself upon Kewal Singh but not necessarily on her head. Falling of the kirpan accidentally on the head of Tej Kaur cannot be ruled out. In our opinion, therefore. on the facts and in the circumstances of this case also as in the case of Harjinder Singh, AIR 1968 SC 867 it should be held that the appellant Hardev Singh did not intend to cause the fatal iniury to Tej Kaur but when he struck her with a kirpan he must have known that-the deceased then being in bent position the blow could lend on any vital part of her body and that it was likely to result in her death. 9.The view of the High Court that even the person not committing the particular crime could be held guilty of that crime with the aid of Section 34 of the Penal Code if the commission of the act was such as could be shown to be in furtherance of the common intention not necessarily intended by every one of the participants, is not correct. The common intention must be to commit the particular crime. although the actual crime may be committed by any one sharing the common intention. Then only others can be held to be guilty. In this case assault on Tej Kaur by appellant Hardev Singh was his individual act. There was no common intention to commit the murder or cause grievous hurt to anybody. Circumstances are completely lacking to lead us to any such inference.” 19. No other argument was harangued and hence wrapping up the discussion we find sufficient force in appellant’s contention. In the ultimate, we find conviction of the appellant is unsustainable for the charge of murder u/s 302 I.P.C. and instead we hold him guilty u/s 304, Part-I, I.P.C. Appellant is in jail since 18.11.2005 and hence has already served more than a decade of imprisonment. 20. Concluding, the appeal stands abated as against (A1) & (A2) and is allowed in part as against (A3).Conviction and sentence of appellant Rajiba Barik (A3) through the impugned judgment and order for offence u/s 302, I.P.C. is hereby set aside and instead he is convicted u/s 304, Part-I, I.P.C. and for that offence, he is sentenced to the period of imprisonment already undergone by him, which is more than a decade. Appellant is directed to be set at liberty unless desired in any other case. 21. Appeal partly allowed as above. Let the trial Court be informed. S.K.SAHOO, J. I agree. Appeal partly allowed.