R.S.SARKARIA, J.

(1) RADHEY Shyam Narendra, Mochiram Paikera and Madhu alias Satyanarayan Paikerathi were tried by the Sessions Judge, Puri, for causing the murder of Mrusinga Charan Paikerathi. The Sessions Judge acquitted all the accused. The State preferred an appeal against the order of acquittal in the High court, which by its judgment, dated 16/01/1973, reversed the acquittal and convicted Satyanarayan Paikerathi under Section 302, and Radhey Shyam Narendra and Mochiram Paikera under Section 302 read with S. 34, Penal Code, and sentenced each of them to rigorous imprisonment for life. Hence this appeal under the Supreme Court (Englargement of Criminal Appellate Jurisdiction) Act, 1970, by the convicted persons.

(2) THE prosecution case, as it emerges from the record, is as follows: 2a. The appellants as well as the deceased are brothers. Their father had married twice. The appellants are the sons of the same mother, while the deceased was the son of another. Satyanarayan appellant obtained a decree for partition of property against the deceased. In spite of this decree, on the intervention of the Panchayat, the share allotted to the deceased was 12 acres more in area than any of the shares given to the appellants. On account of this unequal division, the appellants nursed a grudge against the deceased. On 30/09/1968 at about 8 a.m., the deceased went to his paddy field to answer the call of nature. All the three appellants surrounded the deceased in the field and started assaulting him with lathis. The deceased raised the outcry: "Morigali!Morigali!". Kaviraj (pw 4), a servant boy of the deceased, heard the outcry, and while standing on the bank of the bari taull, saw the three appellants assaulting the deceased in the field. On seeing this, Kaviraj ran to the deceaseds house and informed his son, Bijoy, and after learning from Bijoy that Padmacharan alias Pada Babu (Public Witness 3), the other son of the deceased, was proceeding towards village Dangua, ran and overtook Pada Babu near the tank of village Khetrapal, and informed him about the assault. Thereupon, Public Witness 3 rushed home, joined his brother, Bijoy, and then both the brothers ran further to the scene of occurrence. While proceeding to the spot, Pada Babu saw all the three appellants giving "pushes" (thrust blows) with "the ends of their lathis" to the deceased who was then lying on the ground. Pada Babu and Bijoy shouted to the assailants to desist. Thereupon, before the sons of the deceased could reach the spot, the assailants went away. Dibya Singh Samantary who was in his adjoining field, Amina Sundara (Public Witness 6) who was weeding the field of his grandmother in the vicinity of the place of occurrence, and Natabar Chhual Singh (Public Witness 5) who was also in the fields to answer the call of nature and Public Witness 8 who was returning from his field, were also attracted by the outcry to the scene of occurrence, earlier than the sons. They also saw the appellants assaulting the deceased. As a result of the assault, the deceased died on the spot. There was paddy crop and water in the field, in which the deceased was assaulted. Padmacharan (Public Witness 3) then went to Police Station, Berhampur, 13 kilometres away, and lodged first information report (Ex. 3) at 11 a.m.

(3) AT the trial, the prosecution examined 12 witnesses, while three were examined indefence by the accused, PWs 3,4,5,6 and 8 were examined as eyewitnesses of the occurrence. Dibya Singh Samantray, one of the persons mentioned as an eyewitness in the FIR died before the commencement of the trial. The trial court rejected the testimony of the eyewitnesses mainly for the reasons : that they were partisan witnesses; that they contradicted their previous statements in certain aspects; and that their evidence had not been corroborated by independent witnesses who, though available, were not examined by the prosecution. The absence of blood at t