Judgment

B. Panigrahi, J.— This appeal calls in question the order dated 4-9-2001 passed by the learned Additional Sessions Judge Rairangpur, in S.T. Case No. 47/193 of 2000, whereby and whereunder the appellants have been convicted under Sections 302/149 and 148/460 of the Indian Penal Code (for short “IPC”) and sentenced to undergo imprisonment for life and rigorous imprisonment for two years on each count respectively, the sentences to run concurrently.

2. The prosecution case, as narrated in the trial Court’s judgment, is as follows:

P.W.1 Rohidas Das, the brother of the deceased lodged oral report on 3-4-2000 at 7.00 A.M. at the Rarang-pur (Rural) P.S. that since long after the death of their father, the five brothers used to stay separately and the landed property had been ami-cably partitioned. Till the mother was alive, she was staying with deceased Udaya. The two sons of the elder bro-ther of the informant, namely. Mahes-war and Jogeswar, used to say outside and seldom came to the village. Their mother Malli Das used to stay at village Dantuni. About 1-1/2 years before the occurrence, appellant Jogeswar and his wife alongwith their four children came to the village and temporarily resided in the house of deceased Udaya. After some time, the deceased asked them to vacate the room, for which there was a quarrel between them. Since Jogeswar and his wife did not leave the house under their occupation, there was a village Pan-chayat to resolve the dispute. In the Panchayat, the deceased did not agree to provide accommodation to Jogeswar and his family. Therefore, the wife of Jogeswar took away all the belonging and stayed in the house of one Sufal Das. Two to three days thereafter, she called her husband to the village. On 20-3-2000 Jogeswar came to the village. At that time, Udaya had gone out by locking his house. Jogeswar put another lock on the door and searched for Udaya. However on 25-3-2000 there was a Panchayat and at the instance of the Panch Members, Jogeswar unlocked the door and Udaya once again lived in the house. Joges-war began construction of a house in front of the house of Udaya and insis-ted a share from the wooden fixtures fitted in the house of Udaya. The matter was to be decided on 2-4-2000, but the Panch members did not agree to take it up at night and so it was fixed to 3-4-2000. On 2-4-2000 at about 10.00 P.M., the informant and the deceased slept in the latter’s house P.W. 3 Radhi Das, the daughter of the informant, and P.W. 4 Chhotray Majhi, who had come for some treat-ment to the house of P.W. 1 who used to practise witchcraft, alongwith his wife and a male child slept in the house of P.W. 1 At about 10.30 P.M., appellant Jogeswar and his wife appel-lant Arati came to the house of the deceased and called him to open the door. When the door was not opened, they dealt kick blows on the same, as a result of which the door was broken open. Immediately thereafter, P.W. 1 came out of the room and noticed appellant Jogeswar holding a lathi and appellant Arati, an axe. He advised them not to pick up quarrel, as the matter was to be decided the next day. The two appellants did not pay any heed to such advice; rather appellant Jogeswar inflicted a lathi blow on his left hand. Therefore, he went away from the spot to call other villagers. While going away, he noticed appel-lants Dasarath Das, his wife appellant Dukhini Das and appellant Sagar Das arriving at the spot being armed with lathis, etc. After calling some villagers, when P.W. 1 returned to his house, he found Udaya lying dead in front of his house. There was bleeding from his mouth and nostrils and marks of injury on the head and back. He was informed by his daughter (P.W. 3) that all the appellants dragged the deceased from his house and killed him by assaulting with lathi, axe, etc. In absence of the O.I.C., the oral report of P.W. 1 was reduced to writing by the A.S.I. (P.W. 11) and was treated as F.I.R. The contents of the FIR were read ov