Judgment

P. JAGANMOHAN REDDY, J.:- The Appellant Balakrushna Swain was convicted of an offence of murder under Section 302 and awarded death sentence by the Additional Sessions Judge, Cuttack, subject to confirmation by the High Court. He was further convicted of an offence under Section 148 and sentenced to four months rigorous imprisonment. Two other accused namely Laxmidhar Swain and Pranakrushna Swain were convicted under Sections 148 and 323 Indian Penal Code and both sentenced in respect of Section 148 Indian Penal Code to four months rigorous imprisonment. Further though both of them were convicted under Section 323 the former was sentenced to a fine of Rs. 50/- while the latter to Rs. 200/- in default to undergo respectively one month and four months rigorous imprisonment. Eight other accused who were tried along with them were acquitted. The Appellant and the other two accused appealed to the High Court which while confirming the conviction awarded life sentence instead of death penalty on the Appellant and maintained the sentences passed on the other two convicted accused. The Appellant has come up before us in Appeal by special leave.

2. The deceased Bhramar Swain had after the death of his wife kept Sundari sister of Chakradhar Swain P. W. 5 as his Mistress. After she had lived with him for sometime it was said that there arose a faction in the village in which the Appellant supported the claim of Sundari that she should be given the status of a wife by the deceased. Sundari s brother P. W. 5 and their maternal uncle Baishnab were also supporting the deceased to make provision for and accept Sundari as his wife. In respect of this dispute there was some strained feeling between Sundari s brother Chakradhar and the deceased. Apart from this there were also some land disputes arising out of purchases by the deceased from one Fakir Swain father of P. W. 9 and P. W. 10 his homestead and house standing in front of his house. The Appellant however raised an objection that he and the deceased jointly purchased this property but the deceased claimed that he alone had purchased it. It is also said there was a disagreement with some of the villagers of Nachhipura because of which the deceased lived for a year or two at village Pokhariapada in the house of his relation Daitari Naik. The deceased came back to Nachhipura a few days before the occurrence namely on 6-1-66. P. W. 5 was helping the deceased in building a part of his house and for this purpose he brought a rafter from the house which the deceased had purchased from Fakir Swain. While this rafter was being fixed for reconstructing the house of the deceased the Appellant came there, started a quarrel and after some exchange of words the Appellant snatched away the wooden rafter and carried it away. On the same evening it is said that a meeting in a lane near the house of Anand Swain was held attended to by 11 accused originally charged before the Sessions Judge, at which there was a talk that the deceased had come to the village and that he should be killed. That night at about 9 p. m. the deceased after taking his night meal wanted to go to sleep in the house of Uttam P. W. 2. As he was apprehending danger he was accompanied by P. W. 2 and P. W. 5 and on the way the deceased and P. W. 5 both went to ease themselves. After easing and washing themselves while they were returning and proceeding towards the house of P. W. 2 the Appellant and the accused Laxmidhar Swain suddenly appeared from a hay stacked nearby with Lathis or some like weapons. Laxmidhar Swain at once gave a stroke on the head of Chakradhar P. W. 5 while the Appellant gave a stroke on the head of the deceased who fell down. Uttam P. W. 2 who was walking in front, on listening the cry of P. W. 5 came back when Pranakrushna Swain gave him a stroke on his back. After the deceased had fallen down, it is aliened that the Appellant gave a Katuri blow on him, as a result of which the deceased died. All the accus