JUDGMENT : K.R. MOHAPATRA, J. The appellants, namely, Nanda Sethi, Maya@Maheswar Gouda and Kalia Gouda are convicted under Sections 302/34 I.P.C. and sentenced to undergo imprisonment for life for commission of offence under Sections 302/34 I.P.C., vide judgment and order dated 9th May, 2003 passed by the learned Sessions Judge, Ganjam-Gajapati at Berhampur in Sessions Case No.368 of 2001 (arising out of G.R. Case No.961 of 2000 of the file of learned S.D.J.M., Berhampur, corresponding to Berhampur Sadar P.S. Case No.130 (6) dated 09.10.2000), which is under challenge in this appeal. 2. As would reveal from the FIR, the prosecution case in brief is that 10 to 12 days before the date of occurrence, i.e., 09.10.2000, appellant-Nanda Sethi had attempted to rape the niece of one Budha Teli. At this, the victim warned Nanda Sethi (appellant No.1) to disclose the fact before A.Fakira, who would wipe out his name (kill him). Due to the said incident, the appellants as well as one Sambhu Rao (not charge-sheeted) were searching for an occasion to kill A.Fakira (the deceased). On 09.10.2000 at about 9.30 P.M., A.Fakira (the brother of the informant A. Ganesh Dora-P.W.1) along with others was playing Gudugudu Palli (gambling) at Bado Gurji Chowk of village Ankushpur. At that time, Nanda Sethi-appellant No.1, Maheswar Gouda-appellant No.2 and Kalia Gouda-appellant No.3 along with said Sambhu Rao came from Bada Sahi side being armed with katis and swords. At that time, the informant was sitting on the Verandah of betel and grocery shop of one Nunu Dora. Suddenly, Nanda Sethi dealt a Kati blow on the head of A. Fakira. Thereafter, Sambhu, Maheswar and Kalia also dealt blows by means of swords indiscriminately on the head and neck of the deceased. Seeing the incident, the informant, while proceeding to the spot of occurrence, two brothers of Maheswar Gouda, namely, Panchu Gouda and Deba Gouda arrived there from the direction of Majhi Sahi being armed with Katis. P.W.5-A. Dillesu Dora (an injured), a brother of A.Fakira who was present near the spot, tried to save his brother and in the process was also assaulted by the assailants present there, as a result of which he received injuries on his right shoulder and left leg. By the time, the informant reached at the spot, all six assailants fled away from the spot with the weapons of offence towards Majhi Sahi. By the time, the informant reached at the spot, all six assailants fled away from the spot with the weapons of offence towards Majhi Sahi. Thereafter, the deceased was shifted to M.K.C.G. Medical College and Hospital, Berhampur in an auto rickshaw of Narsu Raulo accompanied by A.Dillesu Dora, where the Doctor declared A.Fakira to be brought dead. The incident was also witnessed by one Shyam Sundar Dora, Suduru Sahu and others, who were present near the spot. The matter was reported at Berhampur Sadar Police Station by P.W.1 at about 11.00 P.M. 3. Upon receiving the FIR (Ext.1) the O.I.C., Berhampur Sadar Police Station, P.W.11, registered the P.S. Case No.130 dated 09.10.2000 under Sections 302/34 I.P.C. As Ext.1 disclosed cognizable offence, PW-11 took up investigation. In course of investigation, P.W.11 deputed Havildar, Bharat Sethi (P.W.10) and Constable, P.K. Sahu to M.K.C.G. Medical College and Hospital, Berhampur to guard the dead body of A.Fakira by issuing command certificate (Ext.14). He also deputed A.S.I., K.C. Satpathy and Havildar, B.B.Gouda to guard the spot of occurrence at Ankushpur. P.W.11 also examined some witnesses on 10.10.2000 and visited the spot at about 7.00 A.M. and prepared the spot map, Ext.16. He seized blood stained earth and sample earth at the spot in presence of witnesses vide seizure list Ext.2. He also conducted inquest over the dead body of the deceased at M.K.C.G. Medical College and Hospital, Berhampur and prepared inquest report (Ext.3) in presence of witnesses and examined few witnesses. Thereafter, he dispatched the dead body for postmortem along with dead body challan Ext.3/4. On that day, he issued injury requisition of A. Dillesu Dora (P.W.5) for medical examination vide Ext.17. The Doctor, who examined A. Dillesu Dora, gave the injury report on the carbon copy instead of the original of the requisition. On the very same day, i.e., on 10.10.2000 at about 5.00 P.M., he seized wearing apparels of the deceased being produced by the escort team after the postmortem and prepared the seizure list (Ext.15). On 11.10.2000, he received the opinion on injury in respect of injured-A. Dillesu Dora. On the same day, also he received the postmortem report from the Professor, FMT vide Ext.12. On 16.02.2001, appellants, Nanda Sethi, Kalia Gouda and Maya @ Maheswar Gouda were apprehended near Ankushpur village. While in custody, appellant-Nanda Sethi gave recovery of the weapon of offence, i.e., Kati from the place of concealment. On the same day, also he received the postmortem report from the Professor, FMT vide Ext.12. On 16.02.2001, appellants, Nanda Sethi, Kalia Gouda and Maya @ Maheswar Gouda were apprehended near Ankushpur village. While in custody, appellant-Nanda Sethi gave recovery of the weapon of offence, i.e., Kati from the place of concealment. Accordingly, disclosure Memo (Ext.7) was prepared in presence of witnesses. On being recovered, the Kati (M.O.I) was seized under Ext.4. Likewise, appellant Maya@ Maheswar Gouda, while in custody, gave recovery of weapon of offence (M.O.III) from the self-same place, i.e., from the hollow (korodo) of a Banyan tree near Mangala Thakurani Temple of village Ratnapur. Ext.8 is the disclosure Memo and Ext.5 is the seizure list of M.O.III. Appellant-Kalia Gouda also gave recovery of the weapon of offence (M.O.IV), he was holding at the time of occurrence, from the place of concealment, i.e., his house. Ext.9 is the disclosure Memo and Ext.6 is the seizure list of M.O.IV. Thereafter, all the appellants were arrested and forwarded to Court. Subsequently on 08.03.2001, Babula Gouda, another accused, was arrested and gave recovery of the weapon of offence (M.O.II), he was holding, vide Ext. 10/1. On 28.05.2001, all the weapons of offence, i.e., M.O.I to M.O.IV, were sent to the Surgeon (P.W.12), who conducted the postmortem, for his opinion as to whether the injuries on the dead body could be possible by the said weapons of offence. Ext.13/2 is the requisition and Ext.13 is the opinion of the P.W.9 in the affirmative. After completion of investigation, charge sheet was submitted against the appellants along with other accused persons under Sections 302/324 read with Section 34 I.P.C. 4. In order to bring home the charge, the prosecution examined as many as 12 witnesses. P.W.1-A.Ganesh Dora, is the informant, P.W.3-A. Shyam Sundar Dora was gossiping with A. Dillesu Dora (the injured) near the spot, P.W.4, namely, Santosh Kumar Borada was a chance witness stated to be loitering near the spot at the time of occurrence, P.W. 5, namely, A. Dillesu Dora, is the brother of the informant and the deceased, P.W.8, namely, Prasad Kumar Panda is also an eyewitness to the occurrence, P.W.9, namely, Dr. Jatin Kumar Das, who conducted the postmortem of the dead body, P.W.10, namely, Bharat Sethi, is the Constable, who accompanied the dead body for postmortem, P.W.11 is the I.O., P.W.12 is the Doctor, who examined A.Dillesu Dora (the injured). The prosecution also relied upon Ext.1, the F.I.R., Ext.3 inquest report, Exts.4, 5 and 6 are the seizure lists of the weapons of offence. Exts.7, 8 and 9 are the statements of the appellants, giving recovery of the weapons of offence, Ext.12, the postmortem report, Ext.13, the opinion of P.W.9, Ext.14, the command certificate of the dead body, Ext.16 is the spot map and several other documents, in support of their case. The prosecution also produced M.O.I to M.O.IV, the weapons of offence to prove the charges. 5. The plea of defence was of complete denial of their involvement in the crime. 6. Taking into consideration the evidence of the witnesses together with attending circumstances, and the arguments advanced by learned counsel for the parties, the impugned judgment of conviction and sentence has been passed. Learned counsel for the appellants contended that the prosecution has miserably failed to bring home the charges leveled against the appellants. There are serious discrepancies and material contradictions in the evidence of witnesses. No motive of the appellants for commission of the crime has been proved by the prosecution. There is no material on record to show that there was meeting of minds or common intention of the appellants for commission of the crime. The circumstances under which the weapons of offence were allegedly used by the appellants having not been put to the appellants during examination under Section 313 Cr.P.C., the same cannot be utilized against them for their conviction. In absence of the same, the alleged assault by the appellants becomes meaningless and they cannot be convicted under Section 302 I.P.C. None of the alleged eyewitnesses have described specific overt act of assault on the deceased by each of the appellants with specific weapon of offence. On the other hand, in cross-examination the vital witnesses, namely, P.W.3 and P.W.4 to the occurrence could not specify about weapons of offence being hold by each of the appellants. The investigation was perfunctory and was conducted in a most casual manner. On the other hand, in cross-examination the vital witnesses, namely, P.W.3 and P.W.4 to the occurrence could not specify about weapons of offence being hold by each of the appellants. The investigation was perfunctory and was conducted in a most casual manner. The prosecution case, if accepted in toto, would not end in conviction under Sections 302/34 I.P.C. On the other hand, the appellants in worst case can be convicted under Sections 326/304 Part-II I.P.C. Since the date of their apprehension, all the appellants are in custody and thus they have undergone more than 17 years of sentence in the meantime. Thus, the impugned judgment of conviction and sentence is not sustainable and is liable to be set aside. The appellants are entitled to be set at liberty forthwith. 7. Mr.S.S.Mohapatra, learned Additional Standing Counsel, on the other hand, submitted that on a compendious reading of evidence of eyewitnesses, namely, P.Ws. 1, 3, 4, 5 and 8 together with medical evidence are sufficient to bring home the charges under Sections 302/34 I.P.C. leveled against the appellants. When there are eyewitnesses to the occurrence, motive of the appellants to commit the crime becomes insignificant. Since each of the appellants has been assigned with definite overt act of deadly assault, common intention occupies a back seat to bring home the charges. Each of the appellants has been put specific question with regard to each of the circumstances utilized against them during recording of their statements under Section 313 Cr.P.C. None of the circumstances, which was not put to the appellants during recording of statements under Section 313 Cr.P.C., has been utilized against them. Learned Sessions Judge taking into consideration the materials on record together with the facts and attending circumstances, has convicted the appellants under Sections 302/34 I.P.C., which needs no interference. Hence, he prayed for dismissal of the appeal. 8. We have heard learned counsel for the parties at length and perused the record. Prosecution examined PWs-1, 3, 4, 5 and 8, who are eyewitnesses to the occurrence. PW-1 is the informant and brother of the deceased. At the relevant time, he was sitting in the grocery shop of one Nunu Dora of village Ankushpur and the deceased along with others were playing Gudgudupalli (gambling) at Bodo Guruji Chowk. The place where the deceased along with others were playing Gudugudupalli was clearly visible from the place where P.W.1 was sitting. At the relevant time, he was sitting in the grocery shop of one Nunu Dora of village Ankushpur and the deceased along with others were playing Gudgudupalli (gambling) at Bodo Guruji Chowk. The place where the deceased along with others were playing Gudugudupalli was clearly visible from the place where P.W.1 was sitting. He, in his evidence, has clearly stated as follows: “3. On 09.10.2000, my deceased brother was playing GUDGUDU PALI (gambling) at the Chok of our village. At that time, it was about 9.30 P.M. Several others were also playing. At that time, I was sitting in the Grocery shop of one Nunu Dora of my village. The said Chok of our village is known Bodo Gorji Chok. At that time, accused persons Nanda Sethi, Kalia Gouda, Maheswar Gouda and one Sambhu Rao (not charge-sheeted), son of G. Raja Rao of my village came from Bodo Sahi side. They were armed with katis and swords. 4. Accused Nanda Sethi gave a kati blow on the head of the deceased A.Fakira. Accused Moheswar, Kalia and their companion Sambhu Rao also assaulted on different parts of the body of the deceased indiscriminately………. My younger brother Dillesu came to the rescue of the deceased. My brother Dillesu was also assaulted by accused Babula and Rabindra. I also ran to the place of occurrence. All the accused persons left the place after assaulting both my brothers towards Majhi Sahi.” In cross-examination, he has clearly stated as follows:- “8……… I was sitting facing towards the place of assault, where the GUDUGUDU PALLI was in progress. I saw the accused persons coming from the side of Bada Sahi toward the place, where the game was in progress. Accused Nanda Sethi first assaulted my deceased brother. I cannot say the exact seat of assault attributing to each of the accused persons, but all of them assaulted my brother……” Defence did not put any question to this witness with regard his presence at the spot. At the time of occurrence, P.W.3 was gossiping with A. Dillesu Dora (P.W.5). He, in his evidence, has stated as follows:- “2. At that time, accused Nanda Sethi, Maheswar Gouda, Kalia Gounda and one G. Sambhu Rao (not charge-sheeted) came from the side of Bada Sahi being armed with Kati and sword. At the time of occurrence, P.W.3 was gossiping with A. Dillesu Dora (P.W.5). He, in his evidence, has stated as follows:- “2. At that time, accused Nanda Sethi, Maheswar Gouda, Kalia Gounda and one G. Sambhu Rao (not charge-sheeted) came from the side of Bada Sahi being armed with Kati and sword. Accused Nanda Sethi gave kati blows on the head of deceased Fakira and thereafter, all the accused persons assaulted the deceased by means of swords and katis indiscriminately. I saw all of them by illumination of the street light and also by the light of the shops.” He at paragraph-4 of the cross-examination stated as follows:- “Myself and Dillesu were talking at a distance of about 30’ from the place of assault. Houses of Mangulu Bhandari and Uchhab Sahu are very nearer, i.e., about 7 to 8 feet from the place, where we were talking. The betel shop of Nunu Dora is at a distance of 7 to 8 feet from the place, where we were talking at the time of occurrence. The electric pole is at a distance of about 12 feet from the place, where we were talking. The place of gambling ‘Gudugudu Palli’ was at a distance of 15 feet from the electric pole………”. To a suggestion put by the defence, this witness replied that ‘it is not a fact that I have not seen the occurrence and I am stating falsehood to help Ganesh (P.W.1) out of fear’. P.W.4 is a villager of nearby village. He had gone to Ankushpur to see video on being invited by the deceased. When the deceased was playing Gudgudupalli at the Bada Guruji Chowk, he was loitering near the said place. He has also clearly stated in his evidence as follows:- “The deceased was known to me since last 2 to 3 years. The deceased died on 09.10.2000 due to assault. On the date of occurrence, being called by the deceased, I had gone to their village Ankusapur to see video cinema. On that night, the deceased was gambling (GUDGUDU PALLI) at Bodo Gorji Chok. I was loitering near the said place. At about 9.30 P.M., accused Nanda Sethi, Maheswar Gouda, Kalia Gouda and one Sambhu Rao (not charge-sheeted) came from the side of Bodo Sahi. They were armed with swords and katis. Accused Nanda Sethi dealt kati blow on the head of the deceased. I was loitering near the said place. At about 9.30 P.M., accused Nanda Sethi, Maheswar Gouda, Kalia Gouda and one Sambhu Rao (not charge-sheeted) came from the side of Bodo Sahi. They were armed with swords and katis. Accused Nanda Sethi dealt kati blow on the head of the deceased. The other accused persons also dealt kati blows and sword blows. One Sambhu Rao also dealt Kati blows on the head of the deceased. Because of the assault on the deceased, all the persons, who were playing gambling left the place……….. Dillesu, the brother of the deceased rushed to the place of occurrence. Dillesu was also assaulted by accused Babula Gouda and Rabindra Gouda (absconder). P.W.1 A.Ganesh Dora also came to the place of occurrence and all the accused persons fled away from the spot.” In the cross-examination, he has stated that “……..It is not a fact that A. Ganesh Dora (P.W.1) reached the place of occurrence after the occurrence and after all the accused persons left the place". No question was put to him by the defence with regard to his presence at the place and time of occurrence. P.W.5 is the brother of the deceased who was also injured in the incident. He, in his evidence, has categorically stated as follows:- “The occurrence took place on 9.10.2000. On that day, at about 9.30 P.M., GUDUGUDAPALLI (a kind of gambling) was in progress at Gorji Chok of our village. My deceased brother Fakira was also playing along with others. I was at a distance of 20’ to 25’ from the place of GUDUGUDA PALLI. I was talking with one Syamasundar Dora (P.W.3). At that time, accused Nanda Sethi, Maheswar Gouda, Kalia Gouda and one Sambhu Rao (not charge-sheeted) came being armed with sword and kati from Bodo Sahi side. I could see them perfectly because of illumination of street light and the electric lights of the shops. Accused Nanda Sethi dealt kati blow the head of my brother repeatedly. Maheswar Gouda and Kalia Gouda also dealt sword blows to my brother. When I was about to proceed to the exact place of assault, at that time, accused Babula Gouda and absconding accused Rabindra Gouda came from Majhi Sahi side being armed with sword and kati. Both Babula Gouda and Rabindra (absconding) assaulted me by Khanda-kati on my right shoulder and left leg causing bleeding injury. When I was about to proceed to the exact place of assault, at that time, accused Babula Gouda and absconding accused Rabindra Gouda came from Majhi Sahi side being armed with sword and kati. Both Babula Gouda and Rabindra (absconding) assaulted me by Khanda-kati on my right shoulder and left leg causing bleeding injury. While I was receiving assault, my eldest brother Ganesh Dora (P.W.1) came from the betel shop of Nunu located nearby, and all the accused persons fled away towards Majhi Sahi.” In the cross-examination, he also categorically denied suggestion that some other persons had killed the deceased and the case was foisted against the appellants. He also denied the suggestion that he had not stated before the Police that he was standing at a distance of 20’ to 25’ from the place of occurrence and that there was no illumination of the electric light in place of occurrence. P.W.8 is another eyewitness to the occurrence, who was also playing Gudugudupalli at the spot. He also vividly narrated the incident and categorically said as follows:- “2……While we were playing, the accused persons Nanda Sethi, Kalia Gouda, Maheswar Gouda and one Sambhu Rao came to the Bodo Gorji Chok. They were armed with Khanda and kati. Accused Nanda Sethi dealt kati blow on the head of deceased Fakira. Thereafter, accused Maheswar Gouda and Kalia Gouda dealt sword blows on different parts of the body of Fakira. All the players of GUDUGUDA PALLI saw the said occurrence…….. Accused Babula Gouda and Rabindra Gouda assaulted Dillesu Dora by means of swords. Ganesh Dora, elder brother of the deceased reached there and all the accused person left towards Majhi Sahi.” No question was put by the defence to this witness with regard to his presence at the spot of occurrence. This witness also describes the manner in which the occurrence took place. 9. On a compendious reading of the aforesaid witnesses, it is crystal clear that all of them were present at the time and spot of occurrence. They have in clear and categorical terms described the incident. P.Ws.4 and 8 have also categorically described the topography of the place of occurrence and presence of the aforesaid witnesses at the time and place of occurrence. It is also manifestly clear that the appellants have reached the spot being armed with deadly weapons. They have in clear and categorical terms described the incident. P.Ws.4 and 8 have also categorically described the topography of the place of occurrence and presence of the aforesaid witnesses at the time and place of occurrence. It is also manifestly clear that the appellants have reached the spot being armed with deadly weapons. Nanda Sethi first dealt kati blow on the head of the accused. Thereafter, the other two appellants along with Sambhu Rao (not charge sheeted) assaulted the deceased by means of sword and kati indiscriminately, as a result of which, the deceased succumbed to the injuries instantaneously. P.Ws.3 and 5 have categorically stated that the place of occurrence was illuminated by street light and light of the shops nearby. Thus, they have no difficulty in beholding the entire incident. A.Dillesu Dora also received injuries on his right shoulder and left leg in the said incident while he rushed to the spot to save his deceased brother. The testimonies of all the witnesses are quite consistent, cogent and credible. Although all of them were put to the discrete cross-examination, no material to disbelieve their statements could be brought out from their mouth. 10. In addition to the above, the postmortem report Ext.12 disclosed the following injuries on the corpus of the deceased. “External Injuries 1. A cut wound of 9 c.m. x 7 c.m. x cranial cavity on the right postero-parietal region of head. 2. A cut wound of 13 c.m. x 3 c.m. x cranial cavity situated 2 c.m. out of to injury No.1. 3. A cut wound 15 c.m. x 4 c.m. x bone deep situated on the right side head and face involving the neck and right ear. 4. Cut wound 14 c.m. x 2 c.m. x cranial cavity situated obliquely on the right side of head over tempero-Parietal frontal region. 5. Cut wound 3 c.m. x 0.5 c.m. x muscle deep on the right side angle of mandible. 6. Abraded cut 6 c.m. x 1.5 c.m. x skin deep on the left sides face. 7. Cut wound 10 c.m. x 0.5 c.m. x skin deep situated on the front of upper chest. 8. Cut wound 6.5 c.m. x 1.5 c.m. x bone deep situated across the right shoulder. 9. Cut wound on the dorsum of left hand involving outer four fingers. 10. 7. Cut wound 10 c.m. x 0.5 c.m. x skin deep situated on the front of upper chest. 8. Cut wound 6.5 c.m. x 1.5 c.m. x bone deep situated across the right shoulder. 9. Cut wound on the dorsum of left hand involving outer four fingers. 10. Cut wound 5 c.m. x 2 c.m. x bone deep on the front of right leg. 11. Abraded cut 6 c.m. long on the outer aspect of right thigh. 12. Abraded out 1.5 c.m. x 0.25 c.m. x skin deep on the right side waist. Internal Injuries:- 1. The skull bone of the right side head corresponding external injury Nos. 1, 2, 3 and 4 showed out fractures dividing the bones into multiple pieces. The underlying dura at the respective cut wounds were also found cut and the right hemi-sphere of the brain was found cut and pulpy associated with sub-dural and sub-archoid haemorrhage and intra-cerebral haemorrhage. 2. The underlying bones corresponding to external injury Nos. 8, 9 and 10 showed cut fractures involving partial thickness of the bones. All other internal organs were found in tact.” 11. P.W.9, in his deposition, has categorically stated that he had also examined the clothing of the deceased, which showed the cut marks corresponding to the bodily injuries. In his opinion, he stated that all the injuries mentioned above were ante mortem in nature and caused reasonably by heavy cutting weapons. He also stated in paragraph-2 of his deposition that “Death was due to hemorrhage and shock resulting from above mentioned multiple injuries. However, the external injury Nos.1, 2, 3 and 4 along with their corresponding internal injuries were individually as well as collectively fatal to cause death in ordinary course of nature…..” In the cross examination, he has clearly stated that “….M.O. I to M.O. IV are sharp cutting and heavy weapons. All the MOs. can cause sharp cutting injuries. It is not a fact that M.Os. I to IV cannot cause the injuries found on the dead body of the deceased.” Thus, P.W. 9 has testified that the external injuries and corresponding internal injuries were possible by M.O.I to M.O. IV. The external injury Nos. 1, 2, 3 and 4 and corresponding internal injuries are individually and collectively sufficient to cause death in ordinary course of nature. 12. The external injury Nos. 1, 2, 3 and 4 and corresponding internal injuries are individually and collectively sufficient to cause death in ordinary course of nature. 12. Learned counsel for the appellants vehemently submitted that the evidence of P.Ws.3 and 4, who are stated to be the eyewitnesses to the occurrence, cannot be taken into consideration for convicting the appellants. Elaborating his submission, he drew attention to paragraph-4 of the cross-examination of P.W. 3 in which he stated that “….I cannot say as to which accused was holding kati and who was holding sword specifically.” Likewise, P.W.4, in his cross-examination at paragraph4, stated that “….I cannot say, who were holding which weapon at the time of assault…..” Thus, their presence at the place of occurrence is doubtful. Their evidence with regard to the overt act played by each of the appellants is also doubtful. We are unable to accept the contention for the reason that in their examination-in-chief, they have clearly attributed the act played by each of the appellants in the occurrence. From the evidence of the eyewitnesses to the occurrence, one thing is apparent that all the appellants were armed with sharp cutting weapons (sword/kati) and they gave successive blows to the deceased by those sharp cutting weapons like sword and kati. They left the spot with the weapons of offence immediately after the incident. Thus, it may not humanly possible to remember regarding weapons held by each of the appellants. When it is apparent from the evidence of P.Ws.3 and 4, being corroborated by other eyewitnesses, namely, P.Ws. 1, 5 and 8 that all the appellants were armed with sharp cutting weapons like sword and kati, by which they dealt fatal blows on the deceased, the contention raised by learned counsel has no merit. Learned counsel for the appellants submitted that there is no material on record to come to a conclusion that the appellants had neither common object nor common intention nor there was any meeting of mind for commission of the crime. Hence, the conviction of the appellants is vulnerable. We are constrained to hold that the submission of learned counsel has no force because of the fact that it is clearly established that all the appellants came from Bada Sahi side being armed with deadly weapons. Hence, the conviction of the appellants is vulnerable. We are constrained to hold that the submission of learned counsel has no force because of the fact that it is clearly established that all the appellants came from Bada Sahi side being armed with deadly weapons. Immediately after reaching the spot, all of them indiscriminately gave fatal blows on the head and different parts of the body of the deceased. After the assault, all of them left towards Majhi Sahi. Thus, the common intention and meeting of mind of all the appellants is clearly established. 13. The next contention of learned counsel for the appellants is that when circumstances of vital nature were not put to the accused persons during their examination under Section 313 Cr.P.C., such circumstances cannot be utilized against them. Law is well-settled in State of Punjab Vs. Naib Din, reported in AIR 2001 SC 3955 that circumstances not put to the accused cannot be utilized against him, but the accused to show that he is seriously prejudiced. Hon’ble Supreme Court in the said case held as under: “12. That apart, respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined under Section 313 of the code. No objection was raised in the trial court on the ground of such omission. No ground was taken up in the appellate court on such ground. If any appellate court or revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional court can endeavour to see whether it could be rectified.” (emphasis supplied) Series of questions were put to the accused-appellants in their examination under Section 313 Cr.P.C. Each question has to be read in harmony and in continuation of the preceding questions and answers made thereto. In the instant case, Question No.3 put to appellant Nos.2 and 3 should not be read in isolation, but in harmony and in continuation with the proceeding question No.2 put to both appellant Nos. 2 and 3. Question No. 2 put to appellant Nos. 2 and 3 is as follows: “It also transpires from the evidence of P.Ws.1, 3, 4, 5 and 8 that at that time, you along with accused Kalia Gouda/Maya @ Maheswara Gouda, Nanda Sethi and one Sambhu Rao came being armed with kati and sword from Bada Sahi side. What have you to say?” (emphasis supplied) Question No.3, if read in continuation with question No.2, would indicate that the deceased A.Fakira was assaulted by kati/sword (sharp cutting weapons) by both the appellant Nos. 2 and 3. As such, the contention of Mr. Rath, learned counsel for the appellants does not hold good. 14. The presence of PWs.1, 3, 5 and 8 cannot be disbelieved merely taking into consideration minor discrepancies in their evidence as pointed out by learned counsel for the appellants. On the other hand, their evidence with regard to sequence of events in commission of the crime is quite consistent and trustworthy. Learned counsel for the appellants could not make out any case to raise doubt with regard to the manner of investigation as well as recovery of weapons. Thus, his contentions in that regard are not acceptable. 15. Learned counsel for the appellants made an alternative argument to the effect that if the case of the prosecution is accepted in toto, it would end in conviction of the appellants under Section 304 Part-II IPC and not under Section 302 IPC. However, he could not make out any case to convert the conviction to one under Section 304 Part-II IPC. However, he could not make out any case to convert the conviction to one under Section 304 Part-II IPC. No material has been brought to our notice as to how the deceased had provoked the appellants to commit the crime. On a thorough scrutiny of materials on record, we could not find any material in order to convert the conviction to one under Section 304 IPC. As such, we find no infirmity in the impugned judgment and order of conviction and sentence dated 09.05.2003 passed by learned Sessions Judge, Ganjam-Gajapati at Berhampur in S.C. No. 368 of 2001. Accordingly, the appeal being devoid of any merit stands dismissed.