judgment

P.P. NAOLEKAR, J.

1. The appellants herein, namely, Dhaneswar Mahakud, Ganeswar Mahakud, Dasratha Mahakud and Kamala Kanta Mahakud (originally A-2 to A-5) alongwith two other persons, namely, Pitabash Mahakud (A-1) and Sanjeeb Kumar Mahakud (A-6) were tried for the offences punishable under Sections 148, 302/149 and 323/149 ofthe Indian Penal Code (IPC). The Court of Sessions convicted and sentenced all the six accused to undergo life imprisonment for causing death of two persons, namely, Biswanath Barik and Umakant Barik. In an appeal filed in the High Court, A-1 and A-6 were acquitted, whereas the accused appellants (A-2 to A-5) were not found guilty under Sections 148 and 149, IPC but their conviction under Sections 302 and 323, I PC and the sentence of life imprisonment for the offence under Section 302, IPC was confirmed. No separate sentence had been passed under Section 323, IPC. The appellants are, therefore, before this Court challenging the order of the High Court.

2. The brief facts of the case are as follows:

As per prosecution version, on 23rd March, 1992 at about 7.30 a.m., Dhaneswar Mahakud (A-2), Ganeswar Mahakud (A-3), Dasratha Mahakud (A-4) and Kamala Mahakud (A-5), the appellants herein, went to the disputed piece of land situated by the side of Palasapanga-Bamebari road located in village Maida. Dhaneswar Mahakud and Ganeswar Mahakud were carrying crowbars, whereas Dasratha Mahakud and Kamala Mahakud were armed with axes. They started digging pits in order to fix poles therein for construction of a shop house. Umakant Barik (deceased) along with Kanduru Barik (his father) and Biswanath Barik (deceased) (his uncle) reached the spot and objected to the said act of the accused persons. On this, they were assaulted by the accused persons with crowbars and axes resulting in the death of Umakant Barik and Biswanath Barik and causing injuries to Kanduru Barik (PW-7). The incident was witnessed by Mangaraj Barik (PW-5), a hotel owner, who was having his hotel nearby the place of incident. At about 9.00 a.m., Sankhali Barik (PW-1), relative of the deceased, lodged the FI R in Joda Police Station that about 8.00 a.m. while he was coming from village Bamebari, on his way he saw his uncles son Umakant Barik lying dead in an open field and there were several cut injuries on the head and face of Umakant Barik. The body of Biswanath Barik was also lying dead in a pool of blood who had sustained injuries on different parts of his body including head. He saw the wife and daughters of his uncle sitting and crying near the dead bodies.

3. The prosecution has mainly based its case on the evidence of two eye-witnesses, namely, Mangaraj Barik (PW-5) and Kanduru Barik (PW-7) and the statements of the doctors who performed the autopsy on deceased Umakant Barik and Biswanath Barik, namely, Dr. Bibhuti Bhusan Mohanty (PW4) and Dr. Surendranath Sahu (PW-6).

4. The plea of the accused persons is of complete denialJo the alleged allegations set forth against them. It is the case of the accused Kamala Mahakud, as is evident from his statement recorded under Section 313 CrPC. suggestions put to the prosecution witnesses in their cross-examination and the evidence of Nandu Munda (DW-3), that while he was engaged in the construction of a shop room over his land and forthe said purpose was digging pits to fix poles, the deceased persons along with injured (PW-7) armed with deadly weapons came to the spot and attacked him and in order to save his life he whirled the axe which he was holding whereby the deceased persons sustained injuries and died. In short, Kamala Mahakud pleaded right of self-defence of person and property, whereas Dasratha Mahakud by examining DW-2 (Bimbadhar Mahanta) had set up the defence of alibi.

5. The trial court relying on the evidence of PW-1, PW-5 and PW-7 concluded that intention was apparently to cause death of the deceased and cause injuries to Kanduru Barik. The trial court did not accept the right of priva