Judgment

VAIDIALINGAM, J.:- This appeal, by special leave, by the second accused is against the judgment and order dated October 9, 1969, of the Orissa High Court confirming his conviction for offences under Section 302 read with Section 34 and Section 201 of the Indian Penal Code and the sentence of imprisonment for life awarded for the former offence. The appellant along with his brother, Baishnab Charan Chaudhury alias Kuturi, who was the first accused was tried for offences under Section 302 read with Section 34 and Section 201 of the Indian Penal Code. Along with them their mother, Jema Bibya, who was the third accused was also tried for offences under Section 302 read with Section 34 and Section 201 of the Indian Penal Code. The learned Sessions Judge acquitted the mother, the third accused, of all the offences with which she was charged. The appellant and his brother were convicted for the offence under Section 302 read with Section 34 and each of them was sentenced to undergo rigorous imprisonment for life, and both of them were also convicted of the offence under Section 201, I. P. C. The learned Sessions Judge, however, did not award any separate sentence for this offence.

2. Both the appellant and his brother appealed to the High Court in Criminal Appeal No. 45 of 1967. The State did not challenge the acquittal by the Sessions Judge of the third accused. The High Court by its judgment under consideration acquitted the appellant s brother the first accused, of both the offences for which he had been convicted. The High Court, however, confirmed the conviction of the appellant. The appellant has come up to this Court challenging his conviction. The State has not challenged the acquittal of the first accused by the High Court.

3. The prosecution case was as follows :

The deceased, Bhairab Charan Chaudhuary alias Bauri was the brother of accused 1 and 2 and the son of the third accused. There was a dispute between the three brothers regarding the family properties and hence the deceased had instituted a suit for partition against accused l and 2 in the Court of the Subordinate Judge at Balasore. The deceased was staying separately in Balasore. The first accused was, at the relevant time, working in the office of the Public Works Department and was residing in P.W.D. quarters at Balasore. The appellant with the members of his family and his mother was, however, staying in the family house.

4. On December 18, 1965, P.W. 13, who was an Advocate and a Receiver appointed in the partition suit, had gone to the family house of the appellant for taking charge of the paddy from the tenants. The deceased had also accompanied the Receiver. When the Receiver and the deceased came out of the house, the deceased was called back by the appellant on the ground that he was wanted in the house by their mother. After the deceased came into the family house, he was questioned by the appellant as to why he cut and removed certain trees from the compound. The appellant caught hold of the deceased and the first accused gave lathi blows on his head. The deceased was begging both the brothers to let him go and was assuring them that he would not come again. In spite of this the deceased was given further blows by both the accused as a result of which he died. Both the accused, 1 and 2 dragged the body to the back side of the house and put it in a gunny bag, which was brought by their mother, the third accused. After the body was tied in the gunny bag, both the brothers carried the gunny bag further west of the house and drowned it in a tank after tying a heavy stone on it. On information given by the appellant, the body was recovered from the tank and PW 14, who held the post-mortem examination found as many as 26 injuries. The injuries on the head were sufficient in the ordinary course of nature to cause death. The plea of all the accused was that they are innocent.

5. The prosecution examined witnesses to show that there was a quarrel between accu