JUDGMENT

C. R. PAL, J. — The appeal preferred against the judgment dated 28.10.1999 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No. 170 of 1997 convicting the appellant under Sections 201 and 302, I.P.C. and sentencing him under Section 201, I.P.C. to undergo R.I. for five years and under Section 302, I.P.C. to capital punishment and the reference made by the learned Sessions Judge under Section 366 of the Code of Criminal Procedure, 1973 were heard together and are disposed of by this common judgment.

2. The facts of the case which gave rise to this appeal are as follows :

The appellant and two others, namely, Jabhiar Soreng and Sylvestar Lakra stood charged for the offences under Section 302, 201 read with Section 34, I.P.C. for committing murder of Lajrus Kullu, the brother of the appellant, Katirna Kido alias Kullu, the wife of Lajrus Kullu and Ruben Kullu, the son of Lajrus Kullu sometime in the month of August, 1996. The case against the appellant is that he was not pulling on well with his brother Lajrus Kullu as there was dispute between them relating to landed property. In the month of August, 1996 the co-villagers of the appellant found Lajrus Kullu, his wife and son missing from the village. Initially they thought that as usual Lajrus with his wife and son might have gone to some other village for work. On enquiry the appellant also told the villagers that his brother with his wife and son to have gone to some other village for work. Some months thereafter, the villagers saw this appellant cutting the paddy crop from the land of his brother. When they asked him as to why he was cutting the paddy from his brother’s land, he told them that he would give the paddy to his brother on his return. A few months subsequent thereto when they saw the appellant removing the door frame and shutters from the house of his brother, they suspected foul play. So they convened a meeting of the villagers which was also attended by the appellant. There in the meeting before the villagers the appellant confessed that he along with two of his male cousins Jabhir Soreng and Sylvestar Lakra assaulted his brother, brother’s wife and son to death by means of a lathi. He also disclosed that they burried their dead bodies along with the lathi used in assaulting them little away from the house of Lajrus Kullu in a pit. It is also alleged that he led the villagers to the place where the dead bodies of the three deceased persons were buried. Coming to know about the incident, one of the villagers, namely, Khristarfar Barua went to the police station and lodged a written report. The matter was investigated into and the appellant with the other two co-accused named above were charge-sheeted for the alleged offences under Sections 302 and 202 read with Section 34, I.P.C. After commit¬ment, they were charged for the above offence to which they pleaded not guilty.

3. The prosecution in order to prove the charges against the appellant cited 14 witnesses and exhibited as many as 30 documents. Out of the witnesses examined P.W.1 is the informant. This witness and P.Ws. 2,3,4,5 and 6 are the co-villagers of the appellant and have deposed about the extra judicial confession made by the appellant. They have also deposed about the ill-feeling between the deceased and his brother and removal of paddy crop and door leaves besides stating that the appellant showed them the place where the dead bodies were buried. P.W.7 is the Executive Magistrate in whose presence inquest was held over the dead bodies. P.W.8 is a witness to the recovery of the dead bodies and seizure of the wooden bar, P.W.9 is a witness to the seizure of the door leaves and P.W.10 is a witness to the seizure of the wearing apparels of the deceased. P.W.11 is the constable of police who has deposed to have accompanied the dead bodies to the Government Hospital, Rajgangpur for post mortem examination and produced the same before the medical officer, P.W.12, who conducted P