J.K. Mohanty, J.
1. Appellants Dukhia Pradhan and Durga Pradhan are the sons of appellant Arjun Pradhan. Deceased Ekadasi Pradhan was also the son of Arjun. The three appellants have been convicted Under Section 302/34, Penal Code and have been sentenced to undergo Rigorous Imprisonment for life.
2. The prosecution case is as follows: There was a difference of opinion between the deceased and the others - Mother Smt. Dulana Dei, father Arjun Pradhan and brothers Dukhia Pradhan and Durga Pradhan - over the division of paternal property. On 21-3-1976 at about 9 or From order passed by M. J. Rao S. J., Dhenkanal, D/- 22-2-1978.10 A. M. deceased Ekadasi Pradhan and his wife Duti Dei (P.W. 5) returned from their paddy field and the deceased asked his mother (D. W. 2) to give him the key of the store-room where paddy had been kept, but D. W. 2 did not pay any heed to that. So the deceased forcibly broke open the lock of the store-room and tried to enter inside it. At that time, he was assaulted by the three appellants with sticks and by the backside of an axe. It is further alleged that appellant Dukhia Pradhan tied a rope (M. O. Ill) round the neck of the deceased and forcibly dragged him to another room where poison was administered. When P.W. 5 wanted to intervene, she was threatened with dire consequence. So she ran away to her parents' house Thereafter, at about 2 P. M., P.W. 5 Duti Dei orally reported the matter to the Officer-in-Charge of Jarpada P.S. namely, S. I. Sri P. K. Naik who came to the spot hearing about the incident. The police took up investigation and after completion of investigation, submitted charge-sheet against the accused persons Under Section 302/34, Penal Code.
3. In order to prove the case, prosecution has examined 10 witnesses and 2 witnesses were examined on behalf of the defence.
P.W. 1 Tirthabasi Padhan is a witness to the Inquest Report prepared by the Investigating Officer. P.W. 2, Purusotiam Pradhan, deposed regarding the Pancha-yati held at the instance of accused-appellant Arjun Pradhan to reconcile the difference between the brothers. He is also a witness to the seizure and recovery of the incriminating articles. P.W. 3 Ban-sidhar Sahu also stated about the Pan-chayati and he is a witness to the inquest and seizure of various articles. P.W. 4 Punia Sahu stated about the extra-judicial confession made by accused Arjun. According to him, Arjun stated before him that he and his two sons, Durga and Dukhia, killed deceased Ekadasi. P.W. 5 Duti Dei is the widow of the deceased. She is the only eye-witness to the entire occurrence and has lodged the F. I. R. P.W. 6 is the Constable who accompanied the dead-body and identified the same to be that of deceased Ekadasi Pradhan. P, W. 7 Mangulu Pradhan stated about extra-judicial confession made by accused Durga; but he was declared hostile by the prosecution, P. W, 8 is the doctor who conducted post-mortem examination over the dead-body of Ekadasi. P. Ws. 9 and 10 are the Investigating Officers.
4. The plea taken by accused Arjun Pradhan is a complete denial of the prosecution case. According to him, the deceased gave a lathi blow on his neck when he asked him as to why he was demanding share of paddy and pulses although it had been settled by them that they, would live jointly, On receiving the lathi blow he fell down and the deceased gave him two Tangia blows. Thereafter his son Durga protested and so the deceased gave two lathi blows to Durga and two blows to Dukhia and he did not know what happened thereafter. The plea taken by accused Dukhia and Durga is a complete denial of the prosecution version.
The learned Sessions Judge considering the entire evidence on record, especially that of the eye-witness. P.W. 5 Duti Dei, the extra-judicial confession made by accused Arjun before P.W. 4 came to hold that all the accused persons are guilty Under Section 302/34, Penal Code.
5. According to the Doctor, P.W. 8, he found several abrasions, two contusions and a legature mark in the neck encircling the neck Vs' broad below the thyroid cartilege. According to him, all the injuries were ante-mortem in nature and might have been caused by hard and blunt substance and the cause of the death was due to asphyxia as a result of strangulation. He preserved the viscera for chemical analysis. The Chemical Examination Report (Ext. 9) shows that Malathion was detected in the portions of the viscera. According to the said report, Malathion is an organophosphorus insecticide and is poisonous. So from the evidence of the Doctor, it appears that the death of the deceased is homicidal and the cause of the death is asphyxia as a result of strangulation.
The widow of the deceased has been examined as P.W. 5. According to her, on the date of occurrence she and her husband Ekadasi went to the paddy field to irrigate the same. At about 9 or 10 A. M. they returned home and while she was cleaning the cowshed, her husband asked accused Durga to bring paddy but he refused. Then her husband asked his mother to give the key of the store-room where paddy had been kept, but she refused. So her husband took out a Tangia (M. O. II) and broke open the lock of the store-room and kept the same on the floor, At that time accused Durga came and gave a blow to her husband by the backside of M. O. II as a result of which her husband fell down. Thereafter, accused Arjun Pradhan brought the Tangia (M. O. II) from the hand of accused Durga and gave two more blows with the same to her husband. Then accused Durga tied the neck of her husband with a rope (M. 0. Ill) and both Durga and Dukhia dragged her husband to one room. There her father-in-law, Arjun, gave two strokes to her husband by a bamboo lathi. At that time, Durga brought a poison bottle and put the poison into the mouth of her husband to kill him as he was found alive in spite of getting so many strokes. When she protested, the accused persons threatened to kill her. So, to save herself, she ran away to her parents house through the back door. She narrated the entire incident to her mother and after that the police arrived there and she lodged F. I. R.
6. Mr. Behera, learned Counsel appearing for the appellants submitted that P.W. 5 is an interested witness and admittedly she and her husband were not pulling on well with the accused persons. She has developed the story from stage to stage and her evidence is contradictory and she is not a reliable witness. Mr. Behera pointed out that in the court below P.W. 5 has deposed that Durga put the poison into the mouth of her husband, but in the F. I. R. she has stated that Durga put something into the mouth of her husband by opening a bottle. No doubt, there are some discrepancies here and there, but they do not materially affect the prosecution version. She has narrated that story in a straight-forward manner. As the occurrence took place inside the house, she was the only natural witness to the occurrence and normally she being the wife of the deceased, will not distort the fact. The learned Sessions Judge has elaborately discussed the evidence of P.W. 5 in paragraphs 19 to 24 of his judgment and held:
I am inclined to hold that the evidence of this P.W. 5 has a ring of truth and can rightly be accepted and acted upon, The mere fact that there are some embelishments and exaggerations does not reduce her evidentiary value.
P.W. 4 stated about the extra-judicial confession made by accused Arjun implicating himself and his two sons Durga and Dukhia. He stated that while he was sitting on the verandah of his house on the date of occurrence, accused Arjun confessed before him that he and his two sons Durga and Dukhia killed the deceased Ekadasi, P.W. 4 is an idependent witness and nothing has been brought out against him so as to disbelieve his statement. P.W. 7 also spoke about the extra-judicial confession made by accused Arjun but he was declared hostile and was cross-examined and the Court has not placed any reliance on his statement.
7. Defence has examined Dulana Dei, the mother of the deceased, as D. W. 2. She stated that prior to the date of occurrence there was a Panchayati in which it was settled that the accused and the deceased will live together, but on the date of occurrence the deceased removed paddy from the store. Accused Arjun objected on the ground that the Panchayati had decided that all of them would live together. The deceased lost his temper and gave a Tangia blow to Arjun. Dukhia and Durga interfered and the deceased assaulted them. Durga put a rope on the neck of the deceased and dragged him while the deceased was about to assault accused Arjun by a Tangia. When the rope was dragged, the deceased fell down. Thus, D. W. 2 has admitted the occurrence. But she has tried to say that in order to save the life of accused Arjun his sons, Durga and Dukhia tied the deceased by means of a rope. Mr. Behera, learned Counsel appearing for the appellants, also argued that the plea of right of private defence taken by the accused persons has also been established by the evidence of the doctor (D. W. 1) who examined Arjun, Durga and Dukhia and found several injuries on their persons. So the plea taken by the accused persons that they are protected by the plea of right of private defence should be accepted. No doubt, the doctor has found some injuries, such as, some abrasions on the accused persons, one lacerated injury on the person of Dukhia and another lacerated wound on the scapula of Arjun. These injuries are very minor in nature.
From the evidence discussed above, it appears that these three accused persons severely assaulted the deceased and Dukhia and Durga put a rope round the neck of the deceased and tied him as a result of which the death was caused due to asphyxia as a result of strangulation. This has been established by the evidence of the doctor, P.W. 8. So, in the facts and circumstances of the case, it appears that these three accused persons assualted the deceased who met his death due to asphyxia as a result of strangulation. Therefore, the question of plea of right of private defence does not arise. The learned Sessions Judge has also discussed this aspect in Ws judgment and came to the finding that the accused persons are not protected by the plea of right of private defence.
So, on a consideration of the evidence of the prosecution witnesses especially P. Ws. 4, 5 and 8, we come to the conclusion that the prosecution has established its case beyond all reasonable doubts.
8. In this case it is to be seen as to what offence each of the accused persons has committed. It is established from the evidence of the prosecution witnesses that two accused persons namely, Dukhia and Durga put the rope round the neck of the deceased and dragged him. Legature marks were found in the neck of the deceased and the death was due to asphyxia as a result of strangulation. Both the accused persons are definitely guilty Under Section 302/34, Penal Code as found by the learned Sessions Judge. Regarding father-accused Arjun Pradhan, the only allegation against him is that he assaulted the deceased by two strokes by the backside of the Tangia and also one stroke by a bamboo lathi, So, from the evidence it appears that he had no intention to kill his son He did not share the common object of the other two accused persons, namely, Durga and Dukhia, In the facts and circumstances of the case, we hold accused Arjun Pradhan guilty Under Section 323, Penal Code and he should be acquitted from the charge Under Section 302/34, Penal Code.
9. In the result, therefore, accused Arjun Pradhan is convicted Under Section 323, Penal Code instead of Under Section 302/34, Penal Code and he is sentenced to Rigorous Imprisonment for one year and the conviction and sentence of accused Durga Pradhan and Dukhia Pradhan are maintained.
10. Subject to the above modification, the appeal is dismissed.
P.K. Mohanti, J.
11. I agree.