JUDGMENT :

S. K. Sahoo, J.

In pursuance of the order dated 15.12.2016, Mr. Priyabrata Tripathy, learned Addl. Standing Counsel on instruction from the Inspector in charge, Seskhal Police Station placed the enquiry report dated 09.01.2017 which indicates that the appellant no.2 Bhursamunda @ Busamunda Ganta expired in the year 2003 and the appellant no.1 Balmunda Ganta expired in the year 2007 and appellant no.3 Premananda Pani is alive.

In view of such report furnished by the I.I.C., Seskhal Police Station, as per the provisions under section 394(2) of Cr.P.C., this appeal in respect of appellants nos.1 and 2 stands abated.

2. The appellants Balmunda Ganta, Bhursamunda @ Busamunda Ganta and Premananda Pani faced trial in the Court of learned Sessions Judge, Koraput, Jeypore, camp at Rayagada in Sessions Case No.260 of 1991 for the offence punishable under section 302 read with section 34 of the Indian Penal Code on the accusation that on 13.02.2991 at about 4.00 p.m., they in furtherance of their common intention committed murder of Jumburu Puala (hereinafter ‘the deceased’) in village Sandhubadi.

The learned trial Court vide impugned judgment and order dated 06.02.1992 found the appellants guilty under section 304 Part-II read with section 34 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for four years.

3. The prosecution case as per the first information report lodged by one Irana Puala (P.W.1) before the Inspector in charge, Rayagada Police Station is that on 13.02.1991 at about 4.00 p.m. while the deceased, who is the son of the informant, was returning home from his father-in-law’s house, on the way near village Sandhubadi, the appellants assaulted him by means of fists and kick blows for which he died.

It is further stated in the first information report that the assault was seen by two co-villagers of the informant, namely, Puala Pedeya (P.W.7) and Mali Puala (P.W.9). The informant was informed about the death of the deceased by P.W.9 and accordingly, the informant and others rushed to the spot and found the dead body lying in village Sandhubadi.

On the basis of the written report submitted by the informant before the A.S.I. of Police attached to Seskhal outpost namely S. Venkatswamy (P.W.10), station diary entry was made and the written report was sent to Rayagada Police Station for formal registration, on receipt of which Rayagada P.S. Case No.53 of 1991 was registered under sections 302/34 of the Indian Penal Code by the Inspector in charge of Rayagada police station who entrusted P.W.11 Braja Mohan Das, S.I. of Police attached to Rayagada Police Station to take up investigation. P.W.11 visited the spot, examined the eye witnesses and other witnesses, held inquest over the cadaver of the deceased, prepared inquest report (Ext.4). The dead body challan was prepared and the dead body was escorted for post mortem examination to the Sub-Divisional Hospital, Rayagada. P.W.3 Dr. Narahari Behera conducted the post mortem examination and submitted his report (Ext.2). P.W.11 arrested the appellants and forwarded them to the Court. He seized the wearing apparels of the deceased being produced by the constable under seizure list Ext.5, received the post mortem examination report and on completion of investigation, submitted charge sheet on 14.05.1991 under sections 302/34 of the Indian Penal Code against the appellants.

4. The defence plea is one of denial.

5. During course of trial, in order to prove its case, the prosecution examined eleven witnesses.

P.W.1 Irana Puala is the informant of the case and he is the father of the deceased.

P.W.2 Siman Puala is a post occurrence witness, who stated to have seen the dead body lying the village Sandhubadi.

P.W.3 Dr. Narahari Behera conducted the post mortem examination of the deceased on 16.03.1991 and proved the post mortem report (Ext.3).

P.W.4 Dambarudhar Jena is the constable who escorted the dead body for post mortem examination.

P.W.5 Sankha Puala is a w