JUDGMENT :

K.R. Mohapatra, J.

This is an appeal under Section 374(2) Cr.P.C. filed against the judgment and order of conviction and sentence dated 23.08.2000 passed by learned 2nd Addl. Sessions Judge, Puri in S.T. Case No. 4/288 of 1998/1997 and 5/350 of 1998/1997 (arising out of G.R. Case No. 1221 of 1996 of the court of learned S.D.J.M., Puri corresponding to Sadar P.S. Case No. 115 of 1996) convicting the appellant under Section 302 I.P.C. and sentencing him to undergo imprisonment for life.

2. The prosecution case in brief as revealed from the plain paper F.I.R. (Ext.7/1) lodged by one Dinabandhu Bhoi (P.W.8) is that the villagers of Bhoisahi of Paikapada village were utilizing a well dug on the land donated by one Bholi Jena of that village. The said land was adjacent to the residential house of Bira Bhoi. 15 days prior to the date of incident, i.e. on 13.09.1996, said Bira Bhoi encroached the land donated by Bholi Jena and enclosed it by green fence. In order to discuss about the same, a meeting was convened on 12.09.1996 at 9.00 P.M. All the members present there requested Bira Bhoi to vacate the said plot, but he did not agree. Subsequently, all the members present there went to the spot. Bira also accompanied them. Reaching earlier at the spot, Bira Bhoi brandished a lathi (wooden stick) and abused the villagers in filthy language and threatened them not to come upon the case land. At that movement, Arjuna Bhoi (the appellant), son of said Bira Bhoi, reached there with a sharp weapon and stabbed Khetra Bhoi at his neck. Consequently, said Khetra Bhoi fell down being unconscious, receiving bleeding injury. Immediately, the informant and other villagers present there rescued him and shifted him to Jaunli Pokhari Hospital. On the way, he breathed his last. Said Arjuna also assaulted Kabuli Bhoi, the brother of the informant. Accordingly, a plain paper F.I.R. was lodged by the informant and Puri Sadar P.S. Case No. 115 of 1996 was registered.

3. As the allegation made in the F.I.R. disclosed a cognizable offence, the O.I.C., Puri Sadar P.S. (P.W.10) took up investigation. He went to the spot, examined the witnesses and prepared the spot map (Ext.9). He also prepared inquest report (Ext.8/1) and sent the dead-body for postmortem vide dead-body challan (Ext.10). He also seized the bloodstained earth and sample earth collected from the spot in presence of the witnesses as per seizure list (Ext.4/2). The appellant was arrested on 13.09.1996 at 10.00 A.M. While in custody, he led the investigating team to discover the weapon of offence (M.O.I), which was seized under seizure list (Ext.6/2). The statement under Section 27 of the Evidence Act was also recorded. After completion of the investigation, P.W.10 submitted the charge-sheet against the present appellant and his father, namely, Bira Bhoi under Sections 302/506/325/34 I.P.C.

4. The plea of defence was complete denial of his involvement in the crime. In the statement under Section 313 Cr.P.C., both the accused persons took a plea that at the time of occurrence, the villagers including the deceased (Khetra Bhoi) went to the spot being armed with Katari to remove the fence. Both the accused persons in exercise of their right of private defence of property and person tried to snatch away the Katari from the hands of the deceased and in that process, the deceased (Khetra Bhoi) and Kabuli Bhoi sustained injuries.

5. The prosecution in order to bring home the charges leveled against the accused persons examined ten witnesses and proved Exts. 1 to 13. The defence in order to prove the ownership of the case land exhibited R.O.R. of the case land as Ext. A. Basing upon the statements of the eye-witnesses, namely, P.Ws. 1, 2, 5, 7, 8 and 9 as well as the evidence of the I.O. (P.W. 10) and the Medical Officer (P.W. 4), learned 2nd Addl. Sessions Judge convicted the present appellant under Section 302 I.P.C. The appellant was acquitted from all other charges leveled against him. His father