JUDGMENT

S. K. Mishra, J. - The appellants assail their conviction under Section 302, 449 and 342 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'the Penal Code' for brevity) recorded by the learned Adhoc Additional District and Sessions Judge, Sundargarh in Sessions Trial No.55/15 of 2000 wherein they have been sentenced to undergo imprisonment for life under Section 302/34 of the Penal Code and also to undergo imprisonment for life under Section 449/34 of the Penal Code. But, no separate sentence was passed for their conviction under Section 342/34 of the Penal Code. It was further directed vide the aforesaid impugned judgment that the above said two sentences were to run concurrently.

2. The case of the prosecution in short is that on 17.03.1999 at about 8.00 A.M. at village Thutipipal (Kendudihi) while informant Rahasbihari Naik and his son deceased Bholeswar Naik were in their house, five accused persons, namely, Khaleswar Majhi, Paleswar Majhi, Kailash Majhi, Sachindra Majhi and Munu Majhi barged into it and forcibly dragged Bhuleswar out of the house. They took him to a place in front of the house of the accused Dasarath Majhi, tied his hands and feet with ropes and then fastened him to a Bakamba tree. In spite of the protest of Rahasbihari, the above said five accused persons started assaulting Bhuleswar with bamboo lathies. On getting information about the assault, the brother, mother and uncle of Bhuleswar, who were then working in their field nearby, came to the spot and witnessed the occurrence. Accused Munu Majhi went to his house which is very close to the spot, brought out a budia and with it, assaulted Bhuleswar on his head. As a result of the assault, Bhuleswar died at the spot.

The informant Rahasbihari Naik went to Police Station, Kinjirkela and submitted a written report on 18.03.1999 at about 12.30 P.M. It was treated as F.I.R. and a case under Section 302/34 of the Penal Code was registered against the above said five accused persons.

3. The Investigation Officer took necessary steps and upon completion of investigation, submitted charge-sheet against the appellants and other three accused persons, namely, Munu Majhi, Dasarath Majhi and Sankar Majhi under Sections 450, 341, 302 read with Section 34 of the Penal Code. The learned Adhoc Additional District and Sessions Judge, Sundargarh on 04.06.2001 framed charges under Section 449/ 342/ 302/ 34 of the Penal Code against the appellants and other above named accused persons. During the course of trial, the accused Munu Majhi died and the case abated against him.

4. The defence took the plea of complete denial.

5. In order to prove its case, the prosecution examined 16 witnesses and the defence examined nine defence witnesses. Informant Rahasbihari Naik is P.W.1, P.W.2 is Rajendra Naik, Ajit Kumar Naik-P.W.3, Siso Badaik-P.W.4, Nilamani Badaik- P.W.5 Udayanath Bhitria-P.W.8 and Sushila Naik-P.W.15 are eye-witnesses to the occurrence. Udhab Bhitria-P.W.6, Jaitram Naik-P.W.7, Muralidhar Naik-P.W.9, Constable Jatra Charan Patra-P.W.10, Constable Julen Kiro-P.W.11 and Constable Balunkeswar Suri-P.W.14 are the witnesses to different seizures. Dr. Sushila Rita Prava Kujur-P.W.12 conducted post-mortem examination over the dead body of the deceased-Bhuleswar Naik. Dr. Pradeep Kumar Prasad-P.W.13 did the blood grouping of the accused persons. Lokanath Gidhi, the Investigating Officer, is P.W.16.

6. Taking into consideration the evidence tendered by the prosecution and the materials available on record, the learned Adhoc Additional District and Sessions Judge, Sundargarh came to the conclusion that the prosecution has proved its case beyond all reasonable doubt against the present appellants and, therefore, proceeded to convict them under the Penal Code as stated above.

7. Mr. S.K. Mund, learned counsel for the appellants does not dispute the homicidal nature of death of the deceased. He also does not dispute the guilt of accused Munu Majhi wh