B.K.Ray, J. - (1.)THE Appellant in this appeal stands convicted and sentenced to R.I. for 2 years under Section 326, Indian Penal Code by the learned Sessions Judge. Puri. Before the Sessions Judge, the Appellant and 11 others were tried together, in ST No. 24 of 1973 out of which the present appeal arises. All those were tried in the Court below were charged under Sections 447 and 148 Indian Penal Code. Except the Appellant 11 others were further charged under Section 326/149, Indian Penal Code. Of these 11 persons Dhoia and Baishnab were also charged under Section 323 and 324, Indian Penal Code respectively. Appellant Maheswar was alone charged under Section 326, Indian Penal Code. All those who were tried were acquitted except the Appellant who was convicted and sentenced as mentioned above. Hence the present appeal.
(2.)THE case of the prosecution may be briefly stated thus: The Bhois of Narasinghpur were in joint cultivating possession of a piece of land in Masanikanta Chal. This land belonged to Emar Math. Previous to the year of occurrence the Bhois were raising Biri and Kulthi crops in the land. But in the year 1970 they decided to raise paddy crops thereon and so they prepared the land for paddy cultivation. On 21 -7 -1970 Bhima Bhoi (p.w.6), Kela Bhoi (p.w.10) along with 5 female members of the Bhoi family including Uttam Bhoiani (p.w.7) and Chanda Bewa (p.w.8) went to the land for ploughing and transplanting paddy seedlings thereon. While they were engaged in transplanting operation at about 2 p. m. Puna Malati, since deceased and the 12 persons who were tried in the Court below arrived and objected to the Bhois cultivating the land. There was exchange of words and Bhima p.w. 6 insisted that he had a right to cultivate the land. Puna thereupon trusted a Kunta into the belly of Bhima (p.w.6). When Kela (p.w.10) intervened the Appellant dealt a blow on his right fore -arm with a phrase .
After the above occurrence took place, an FIR was lodged on 22 -7 -1970 at 1 p.m. at the spot where the police had come to investigate into a counter case started upon an FIR (Ext. 16) lodged by Baishnab one of the accused in the Court below since acquitted.

The plea of the Appellant as well as the other co -accused persons in the Court below was that they were in cultivating possession of the disputed land on the date of occurrence. When the deceased Puna and his brothers and his servants were engaged in transplanting operation on the land in the afternoon the Bhois namely Bhima, Arjuna and Loka and others went to the disputed land armed with deadly weapons with a view to forcibly dispossess the Appellant's party and assaulted the deceased Puna and his partymen. As a result of the assault, the deceased Puna died at the spot and the other members of the Appellant's party were injured.

(3.)OUT of the 14 p.ws. examined for the prosecution p.ws.4, 6 to 10 and 13 are witnesses belonging to the Bhoi caste. P.ws. 1 to 3 and 12 are eye witnesses who claim to have been the occurrence from a distance. P.w. 5 is the doctor and p.w. 14 is the I.O.