R.N.MISRA,J. - (1.)THE appellant has been convicted under Sections 302 and 201 of the Indian Penal Code by the learned Sessions Judge of Mayurbhanj and has been sentenced to rigorous imprisonment for life in the first count and no separate sentence has been passed under Section 201 of the Indian Penal Code.
(2.)ACCORDING to the prosecution on the Gamha Purnima day (24.8.1972) when in the village there was a festival it transpired that deceased Kanka Majhi had stolen two banians belonging to accused Fatu Karan had also been alleging that the deceased had committed theft of rice from his house. The accused persons tied the deceased to a Sal tree in the village. In a meeting it was decided that they should do away with the deceased and in the evening he was taken into the jungle in the close vicinity of the village and was killed there by blows given by Karan on his head. A young daughter of the deceased had followed the party and before her father was killed, she pleaded for him. She was also done to death by Karan. Another young girl (P.W. 5) had seen the occurrence by concealing herself behind a tree. She reported about the incident at the police station next morning and after due investigation the prosecution was launched.
Karan was charged under Section 302 of the Indian Penal Code for committing murder of both the deceased persons while the other accused persons were charged for the commission of the offence of murder by being members of an unlawful assembly and all the accused persons were charged for the offence under Section 201 of the Code.

(3.)THE defence was one of complete denial. Prosecution examined P.Ws. 2, 3, 4, 5 and 7 as eye -witnesses to the occurrence. All these witnesses, however, turned hostile excepting P.W. 5. Prosecution tendered the evidence of P.Ws. 2, 3 and 4 examined at the committal stage under Section 288 of the Code of Criminal Procedure and such evidence were marked as Exts. 1, 2 and 3. Prosecution also relied upon certain incriminating circumstances.