B. K. BEHERA, J.

( 1 ) THE two appellants stood charged under section 302 read with section 34 of the Indian Penal Code with having committed the murder of Tadingi/enkana (to be described hereinafter as Tthe deceased) by intentionally causing his death in furtherance of their common intention on April 15, 1979 at village Pudapai in the district of Koraput. The prosecution had alleged that P. W. 2 and Iris father had performed a Puja in a hill and had sacrificed a goat and distributed meat to the villagers including the two appellants who took exception as they had not been pulling on well with the other side. The appellant Mina returned the meat to P. W. 2 while P. W. 2, his father and the deceased were present in the house. P. W. 2 and the deceased then went to the house of the appellants and challenged them as to why meat was returned. At this, the appellant Laitara came out of his house with a. Tangla (M. O. I) and dealt a blow by its blunt side on the chest of the deceased as a result of which the latter fell down, The other appellant Minai son of the appellant. Laitara, then came to the spot, picked up a stone (M. O. II) lying there and dealt blows on the head, chest and testicles. of the deceased. P. Ws. 2, 4 and 6 were the witnesses to the occurrence. P. W. 4. It was alleged, had snatched away M. O. I from the hands of the appellant Laitara. The deceased succumbed to the injuries on the spot. On the basis of the first information report lodged by P. W. 1, investigation followed and on its completion, a charge-sheet was placed and the appellants were prosecuted.

( 2 ) P. W. 9 was the doctor who had conducted the autopsy and had noticed injuries on the head and chest of the deceased sufficient in the ordinary course of nature to cause death. He bad, however, not noticed any injury on the testicles of the deceased. There could be no doubt from the medical evidence that death of the deceased was homicidal in nature. This aspect has not been challenged before us.

( 3 ) ACCEPTING the evidence of P. Ws. 2, 4, and 6, the learned Sessions Judge held that the charge against the appellants had been established. We have been taken through the relevant evidence at the hearing of this appeal.

( 4 ) P. W. 1 was the first-informant and the first information report (Ext. 1) had been lodged in the presence of P. W. 4 who was said to be a witness to the occurrence. Although P. W. 1 had not witnessed the occurrence, he had claimed to be one in the first information report. A substantially different version had been given therein in that the quarrel and the assault took place near the house of the deceased and not in the house of the appellants as the prosecution sought to establish at the trial and the occurrence bad taken place, as alleged in the first information report, when the appellants came to the house of the deceased for returning the meat and challenging the party of the deceased as to why meat was sent to them the learned trial Judge bad taken no notice of this important inconsistency in the story put forward in the first information report and the evidence of P. W. 1 at the trial.

( 5 ) A though P. Ws. 2,4 and 6 had claimed to have witnessed the occurrence, it would clearly appear from the statements made by P. W. 1 in his cross-examination that they could not have been present on the spot. P. W. 1 had stated thus:on the date of occurrence I had gone to Minajholla for cccli work. Manjhilla is six miles from my village. I returned from Minajholla after sunset. Kalaka Dharma, Tadingi Masa, Mondagori Baraja, Kumbirika Adj had also gone with me to Minajholla and we all returned together. By the time we returned the dinner time was over. We found the dead-body kept on the pinda (verandah) of the house of Boduru and a Dibiri was burning. No male member was present there. On being asked by Baduru, I came to Raygada to lodge the report. After these statements were made, the prosecution had not taken any step for putting leading qu