PASAYAT, J.

( 1 ) THE three appellant (hereinafter referred to as the 'accused') faced trial on the accusation of having committed offences punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code, 1860 (in short, 'ipc') along with one Maguni Behera, who was acquitted by the learned Additional Sessions Judge, Jajpur.

( 2 ) THE occurrence in which Raghunath Behera (hereinafter referred to as the 'deceased') lost his Life occurred on 28-5-1989 at about 8-30 p. m. The genesis of the dispute as given by the prosecution, in essence, is as follows :accused Subodh and Madhaba had cut some bamboos and stacked them in their backyard. Those were removed by the deceased and thrown to a tank. Accused Usha took exception to such action and shouted that the bamboos cut by her sons had been removed for the purpose of carrying a dead-body. Kamala Behera (P. W. 1) thought that the derogatory words were aimed at her and that led to exchange of hot words. In the meantime deceased arrived there. Madhaba gave a Katari blow on the head of the deceased, which was followed by another blow on the right shoulder by Subodh, and a third blow was given by Usha on the backside of the deceased. When Bichitrananda Behera and Gajendra Behera (P. Ws. 5 and 8 respectively), intervened, they were also assaulted by Subodh and Madhaba. Assaults were witnessed by Kamala Behera (P. W. 1), Rajanikanta Behera (P. W. 2), Dharanidhar Sahu (P. W. 3), and Purushottam Sahu (P. W. 4 ). The deceased in an injured condition was removed to Bari - Ramachandrapur P. H. C. where he was deceased to harm breathed his last. Information was lodged by Kamala (P. W. 1), the sister-in-law of the deceased. Investigation was undertaken, certain article's were seized and on completion of investigation charge-sheet was submitted.

( 3 ) THE accused persons pleaded innocence and false implication on account of pre-existing land disputes.

( 4 ) THE learned Additional Sessions Judge did not believe the evidence of P. W. 2, but placing reliance on the evidence of P. Ws. l, 3, 4, 5 and 8 found the present accused-appellants Subodh and Madhaba guilty under Section 302, I. P. C. , while acquitting them of the charge under Section 307, I. P. C. For the conviction under Section 302, I. P. C. , they were sentenced to undergo rigorous imprisonment for life. Though both of them were convicted for the offence punishable under Section 324, I. P. C. , no separate sentence was imposed. Accused Usha was convicted under Section 324, I. P. C. and was sentenced to R. I. for two years.

( 5 ) IN support of the appeal Mr. S. K. Sahu, learned counsel submitted that the so-called eye witnesses could not have witnessed the occurrence as the alleged occurrence took place in the dark night at about 8. 30 p. m. The possibility of witnessing the occurrence as claimed is practically impossible, particularly from the distance from which the witnesses claimed to have seen the occurrence. Authenticity of the first information report is attacked on the ground that P. W. 1's evidence casts doubt on it. The document shows as if it was written in Bari - Ramachandrapur Public Health Centre and handed over to Purushottam Sahu, when P. W. 1 herself has accepted that the first information report was written in her house. Alternatively, it is submitted that the scenerio as depicted by the prosecution leaves no manner of doubt that the occurrence took place in course of a sudden quarrel without pre-meditation and the accused persons having not committed the crime in cruel manner, and having not taken any advantage thereof, application of Section 300, I. P. C. is ruled out. Even if the prosecution version is accepted in its totality. It is urged at the most a case punishable under Section 304 is made out. Mr. A. Mohapatra, learned counsel for State on the other hand submitted that the witnesses have stated graphically and in detail about the occurrence. Two of the witnesses,. i. e. P. Ws. 5 and 8 sustain