B.K.Ray, J. - (1.)THE two Appellants of whom Appellant No. 1 is the father aged about 52 years and Appellant No. 2 is the son aged about 22 years have been convicted under Sections 307/34, Indian Penal Code and sentenced to rigorous imprisonment for five years each by the learned Assistant Sessions Judge, Baripada. Besides the above sentence, Appellant No. 1 has further been sentenced to pay a fine of Rs. 200/ - for his conviction under the aforesaid sections.
(2.)THE Appellants and the injured (p.w.4) belong to the same locality within the municipal area of Baripada town. There is one well accessible to the people of the locality near the premises of the Appellants. In the evening of 22 -5 -1971 Lalita, wife of p.w. 1, had been to the well to wash her clothes. Appellant No. 1 abused her and threw away her clothes, bucket and Iota. Lalita reported about this to p.w. 4 and p. ws. 5 and 3, brother and sisters respectively, of p.w. 4. Thereafter, p. ws. 4 and 5 went to the house of Appellant No. 1 and challenged him for his misbehave our. During the quarrel that ensued as a result of the challenge Appellant No. 1 threatened to kill p.w. 4.
On 27 -5 -1971 at about 8.30 p. m. p.w. 4 was loitering in the outer courtyard of his house. This Courtyard adjoins the road. Appellant No. 2 came there and challenged p.w. 4 as to why he had quarrelled with Appellant No. 1. Subsequently, a quarrel ensued between the two. In course of the quarrel Appellant No. 2 shouted saying 'father come, Shiba is now alone'. While shouting Appellant No. 2 ran towards his own house. Shortly thereafter, both the Appellants came running to the outer courtyard of p.w. 4. Appellants No. 1 was armed with a roller stick (M.O. In and Appellant No. 2 with a bamboo stick (M. Order 1). Appellant DO. 2 dealt a blow with the bamboo stick on the left side head of p.w. 4 as a result of which the latter fell down senseless with bleeding injury. Appellant No. 1 thereafter discarded the roller stick in his hand brought a piece of Mankada stone from the nearby compound wall and pressed the same on the back of p.w. 4. saying that he (Appellant No. 1) had been able to take out the bangles from the hands of p.w. 4's wife. Thereafter, p.w. 4 was removed to the hospital by his younger brother (p.w.5). On these allegations p.w. 5 lodged an F.I.R. (Ex. 1) before the Police.

During investigation that followed Police came to the spot seized the roller stick (M.O. II) from the outer compound of p.w. 4, searched the house of the Appellants seized the bamboo stick (M.O.I.) therefrom and got p.w. 4 examined by the doctor. After close of investigation Police submitted charge -sheet against the Appellants who were tried, convicted and sentenced as stated above. Hence this appeal.

(3.)THE plea of the Appellants in the Court below was as follows: At the time of the alleged occurrence Appellant No. 1 was on the roof of his house., From there he heard Appellant No. 2 shouting for help. Appellant No. 1, then came to the spot and saw marks of injury on Appellant No. 2. Appellant No. 1 then asked p.w. 4 who was there as to what was the matter. P.w. 4 questioned Appellant No. 1 as to why he (Appellant No. 1) misbehaved with his wife. P.w. 4 then assaulted the Appellants with a lathi. Appellant No. 2 snatched away the lathi from the hand of p.w. 4. P.w. 4 then went inside his house and brought an axe. By the time p.w. 4 returned with an axe Appellant No. 1 was picking up his slippers which were lying there. P.w. 4 gave an axe blow on Appellant No. 1. This resulted in inflicting an injury on Appellant No. 1's left thigh. When p.w. 4 aimed a second blow with the axe at the Appellant No. I, Appellant No. 2 in order to save his father dealt a blow on p.w. 4 with a lathi.