P.N.SHINGHAL, J.

(1) THIS appeal of Banka Nayako. Radhakrishna Choudhury and Dandapani Choudhury, by special leave, is directed against the appellate judgment of the orissa High court dated 10/02/1971, upholding their conviction for an offence under S. 302/34 1. P. C. and sentence of rigorous imprisonment for life.

(2) IT is not in dispute, and is in fact admitted, that there was a longstanding dispute between Ramchandra Choudhury (Public Witness 1) on the one side, and appellants Radhakrishna Choudhury and Dandapani Choudhury on the other. Appellant Banka Nayako is the servant of Radhakrishna Choudhury. The dispute related to partition of joint family properties, and gave rise to several civil and criminal cases. saita naik was the servant of Ramchandra Choudhury (Public Witness 1) and was his- Supporter in the litigation. He had also started some criminal cases against the appellants and was a witness for Ramchandra Choudbury (Public Witness 1) in some cases against the accused. He was involved in some cases started by appellant Dandapani Choudhury. A dacoity case started by Ramchandra Choudhury (Public Witness 1) was pending against the accused on the date of the incident. It is alleged that Ramchandra Choudhury (PW 1) started from his village Punando on 5/03/1969, at about 4 p.m., along with Saita Naik and reached Hinjilikatu at about 6 p.m. He then left for Aska by bus. Saita Naik, Nabadwipa Padhi (Public Witness 2) and Bishnu Gouda (Public Witness 5) left for Punando. While they were passing through the dry bed of Ghodahada river, it is alleged that Saita Naik stayed back to answer the call of nature, while his two companions proceeded towards the northern bank of the river. When they reached the northern bank, it is alleged that Nabadwipa Padhi and Bishnu Gouda found that all the fourteen accused who were challaned in this case were present near a ditch armed with khanatis, lathis and katis. They began to attack Nabadwipa Padhi (Public Witness 2) and Bishnu Gouda (Public Witness 5) but they ran away. It is alleged that the accused then attacked Saita Naik. Appellants Dandapani Choudhury and Radhakrishna Choudhury are said to have pierced him with khanatis, and Banka Nayako hit him with a kati on the head. Nabadwipa Padhi (Public Witness 2) went to Hinjilikatu and then to Aska, and narrated the incident to Ramachandra Choudhury (Public Witness 1). Both of them went to Pattapur police station and lodged a report at 2 a. m. It is alleged that, in the meantime, Gola Nahaka (Public Witness 10), who was a nephew of Saita Naik, heard about the incident from Bishnu Gouda (Public Witness 5) at mauza Puddo, and went to Ghodahada river along with some villagers including Saita Naiks son Musa Nayak (Public Witness 3). They found that Saita Naik was lying unconscious in the bed of the river. Musa Nayak is said to have given him some water, and he regained consciousness. It is further alleged that, on inquiry, Saita Naik informed those present that Dandapani Choudhury and Radhakrishna Choudhury had pierced him with khanatis and Banka Nayako had struck him with a kati on his head and that he expressed a desire to be taken to Hinjilikatu where he said he would give further details of the incident. He was accordingly taken there, but he died by the time he reached Hinjilikatu. A report of the incident was lodged by Golla Nahaka (PW 10) at Hinjilikatu police station. A post mortem examination was performed on the body of Saita Naik by Dr. K. K. Misra (Public Witness 13). He found several injuries on his body, and his report is on the record as Ex. 5. All the injuries were found to be ante mortem and Saita Naiks death was found to be due to the combined effect of syncope and coma. Fourteen accused were challaned and the Sessions Judge of Ganjam-Boudh, Behrampur, convicted them all of the offence of rioting armed with deadly weapons under Section 148 and of murder under S. 302 read with S. 34 Indian penal code