BARMAN, A. C. J.

( 1 ) PANGI Jogi Naik and Pangi Bisu Naik, who are both brothers were convicted on a charge of murder of Pangi Krishna and his wife Pangi Muthei on the night of 16th september 1963, and sentenced to death by the learned Sessions Judge of koraput.

( 2 ) THE motive for the murder is said to be hostility due to some land dispute between the parties. The weapon used for committing the murder is said to be tangia (M O I) which caused an incised punctured wound. The tangia was found to be stained with human blood, according to the Serologist's report.

( 3 ) THE accused persons (appellants) totally denied their complicity in the crime ; their case is that due to previous enmity they have been falsely implicated in this case.

( 4 ) ON 6 (16?) September 1963, the deceased Pangi Krishna and his wife, the deceased Pangi Muthei were sleeping with their four children including two boys, namely Pangi P. W. 1 Pangi Dora aged 15 years and P. W. 2 Pangi Rama aged about 12 years, in one room, the doors of which are said to have been closed from inside. The husband and wife were sleeping in two cots joined together while the children were sleeping on the floor below. The doors of the room were made of wooden planks. The front door had been chained and the back door had been closed by a Mushal (wooden piece ). The circumstances in which the two deceased persons were murdered are fully spoken to by the two boys (P. W. 1 and P. W. 2)who were sleeping inside the room with their parents and happened to be eyewitnesses to the occurrence as discussed hereunder.

( 5 ) IMMEDIATELY after the commission of the murder P. Ws. 1 and 2 reported the occurrence to their uncle P. W. 8 Pangi Kangu Naik. Thereafter other persons including P. Ws. 10, 11 and 12 were also informed about the incident, namely that the accused persons had committed the murder of the two deceased persons. A punchayeti meeting was held in the village. Then P. W. 1 Pangi Dora along with P. Ws. 8 and 10 went to the police-station at Pottangi, which is said to be at a distance of about 25 miles from the place of occurrence, and lodged information about the occurrence on 18th September 1963 at about 8 A. M. They filed a statement narrating the incident which is Ext. 14 in the case. In the meantime, immediately after the incident, on 17th September 1983, at about 6 P. M. accused jogi Naik had himself lodged information at the same police-station stating that the brother of the deceased Pangi Krishna had committed the murder--see Ext. 16--apparently by way of fores tailing the complainant's party before they could inform the police about the occurrence. On the earlier information received on 17th September 1963, the police came to the village of the deceased, took up investigation and in due course arrested the accused persons. They were charged, committed, and sent up for trial before the Sessions Judge of Koraput, who convicted them under Section 302 and Section 302/34, Penal Code and sentenced them to death by his order dated 5th December 1964.

( 6 ) THE charge against the accused persons is that on the night of the murder they, in furtherance of their common object, both raided the house of the deceased pangi Krishna ; and then accused Pangi Jogi Naik killed Pangi Krishna by a Kathi blow while he was sleeping and the other accused Pangi Bisu Naik killed Krishna's wife Pangi Mutei also, while she was escaping and thereby each of them committed an offence punishable under Section 302 and Section 302/34, Penal code.

( 7 ) THE prosecution case is based mainly on the direct testimony of the two sons of the deceased, namely P. Ws. 1 and 2, aged 15 and 12 years respectively.

( 8 ) THE evidence of P. W. 1 Pangi Dora about what had actually happened on that fatal night is, so far as is material is this :

"i heard the groaning sound of my father and I immediately heard my mother saying : 'jogi has stabbed your father, get up'. I got up immediately and found Jogi (identified) w