(1) THIS appeal is directed by the above two appellants who are brothers. These two appellants along with their father who was arrayed as accused 1 were called upon to answer the charges punishable under Section 447, 326, 302 read with Section 34 Indian Penal Code on the allegations that on 24/09/1977 at about 11.15 p.m. at Sevalagi village committed criminal trespass on the land belonging to the deceased, Jinnappa Dadu and that in furtherance of the common intention, they attacked Jinnappa with lethal weapons and caused several injuries to which injuries Jinnappa succumbed on 30/09/1977 at 3.50 a.m. The investigating officer, Public Witness 21 recorded the statement of the deceased in the hospital on the night of September 24/25, 1977. On the basis of Ex. P-32, a case was registered. Ex. P-23. The Investigating Officer after inspecting the scene of occurrence, recorded the statements of the witnesses and arrested these two appellants on 26/09/1977 and recorded their statements. In pursuance of the statement given by the first appellant, MOs 1, 2, 9, 10 and 11 were recovered under Ex. P-18, and in pursuance of the confessional statement given by the second appellant, MOs 14 and 15 were recovered under Ex. P-19.

(2) ACCORDING to the prosecution, the occurrence was witnessed by PWs 7, 8 and 9 of whom Public Witness 7 is an injured witness. It is stated by the prosecution that PW 7 was sleeping by the side of the deceased in the field where the deceased had penned his sheep with the assistance of the shepherds, namely PWs 7 to 9.

(3) AFTER completing the investigation, the Investigating Officer laid the charge-sheet against all the three accused. The accused denied the offence when examined under Section 313 Criminal Procedure Code. The trial court not accepting the evidence of PWs 7 to 9 and the recoveries made by the 1.0. as well as the veracity of the alleged dying declaration Ex. PW-22, acquitted all the three accused.

(4) ON being aggrieved by the order of acquittal, the State preferred an appeal before the High court. The High court on re-evaluating the evidence, convicted these two appellants but acquitted their father by giving him the benefit of doubt. Hence the present appeal.

(5) THE counsel who has filed this appeal has since been elevated to the Bench, these two appellants stood unrepresented. Thereafter, the matter was referred to the Supreme court Legal Aid Board.

(6) WE are happy that Mr U.R. Lalit, learned senior counsel has offered his assistance to the court appearing on behalf of the appellants.

(7) MR Lalit after taking us through the recorded evidence and the impugned judgment challenged the finding of the court below on two grounds. According to him, the evidence is inadequate and insufficient to warrant the conviction against the appellants and secondly if the evidence even is accepted the offence would not amount to one punishable under Section 302 read with Section 34 Indian Penal Code but would be only under Section 326 read with Section 34 Indian Penal Code.

(8) IT may be noted, in this connection, that the High court convicted them only under Section 302 read with Section 34 Indian Penal Code. The occurrence has taken place on a moonlit night. Admittedly, PWs 8 and 9 did not sleep near the deceased but they came to the scene of occurrence after hearing the screams of the deceased and Public Witness 7. As already stated, Public Witness 7 is a star witness whose evidence establishes the presence of Public Witness 7 at the scene of occurrence. Therefore, even if the evidence of PWs 8 and 9 is eschewed, we can safely rely upon the evidence of Public Witness 7 which corroborates Ex. P-22, the statement recorded by Public Witness 21 in the hospital. Therefore, we have no hesitation in accepting the finding of the High court that the appellants participated in the occurrence and they are the perpetrators of the offence.

(9) THE next question tha