KESAB SAHU Vs. STATE

JUDGEMENT

(1.) THE appellants Kesab Sahu and Bisikesan Sahu who are brothers and the other two appellants have been convicted under Section 302 read with Section 34 of the I.P.C. for having committed the murder of the deceased Dina -bandhu Naik at village pingabaru in the district of Ganjam in furtherance of the common intention of all of them on July 23, 1977 when the deceased protested against the action of the appellants Kesab, Bisikesan and Gajendra going upon the land of Mian Majhi (P. W. 4) and forcibly ploughing the land while the othsr appellant Udeswar Patro was watching his paddy seedlings on a land nearby and it was alleged, the appellant Gaj,endra caught hold of both the hands of the deceased and the appellants Kesab and Bisikesan assaulted the deceased on his head by means of axes and when the deceased was being carried by Amar Singh and Baliar Singh (P. W, 2), two sons of the deceased, the appellant Udeswar came to the spot running with an axe and dealt a blow by it on the head of the deceased and when he attempted another blow, P. W. 1 resisted and as a result, sustained an injury on his left hand. The assault by the appellants resulted in the death of the deceased on the spot. The first information report (Ext. 1) was lodged by P. W. 1 on the basis of which the investigation was taken up and on its completion a charge -sheet was placed.

(2.) THE plea of the appellants was one of denial and false implication.

(3.) MR . Rangadhar Behera, the learned Advocate appearing on behalf of the appellants, has submitted that the findings recorded by the trial court against the appellants were unfounded. It has however, been submitted by him. that in case the allegations against the appellants are accepted, they may be convicted under Section 324 read with Section 34 of the Indian Penal Code as they had neither the common intention to commit the murder of the deceased nor to cause grievous hurt to him. Mr. Patra, the learned Additional Government Advocate, has submitted that on the evidence on record, no order of conviction could be recorded under Section 302 read with Section 34 of the Indian Penal Code, but the appellants could properly be convicted under Section 326 read with Section 34 of the Indian Penal Code.