JUDGMENT

Patra, J. :- This is an appeal by the State against an order of the Sessions Judge, Koraput acquitting the respondent of a charge under Section 302 Indian Penal Code for having committed the murder of his uncle Golari Dasarathi on the night of 2nd August, 1968. The respondent Gollari Damo and the deceased were residents of village Urabir. The house of the respondent is very near that of the deceased. On the date of occurrence one of the hens of the deceased was found missing in the evening. The deceased therefore raised a hulla over it and declared that he who had taken his hen should return it immediately. That night while the deceased was sleeping on his outer verandah, there was pelting of stones inside his house. The deceased got up, raised an alaram and went towards the backyard of his house to find out who the culprit was. His son P.W. 1 and the latter's maternal uncle P.W. 10 Fagu Sisa who were sleeping in a nearby cottage also got up and proceeded towards the backyard of the house of the deceased. As they were so proceeding they heard the the deceased shouting " " (MARI GALI). No sooner had P.W. 1 heard his father saying so, he reached the spot and found the accuse