BANAMALI PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant and his Son Gopal stood charged under section 302 read with section 34 of the Indian Penal Code (for shrot, the Code) with having committed the murder of his (appellantTs) mother (hereinafter referred to as the deceased) in further once of their common intention on September 29, 1978 owing to litigation in respect of their shares of land which had ended in favour of the deceased. To bring home the charge, the prosecution had examined eleven witnesses of whom P.W. 1, the brother of the appellant, had testified about the appellant and his son Gopal going away from the house of the deceased with instruments in hands after which he went inside and saw his mother in dying moments and she succumbed to the injuries. It was alleged that the assault by both the appellant and the co-accused had resulted in the death Tof the deceased. P.W. 3, then the Sub-divisional Judicial Magistrate, Bhanjanagar had recorded the confessional statement of the appellant (Ext. 2) wherein the appellant bad admitted to have dealt three blows on the neck of his mother by means of a Hatuda. P.W. 6 was the doctor who had conducted the autopsy and had noticed two fatal wounds on the person of the deceased besides a number of other injuries some of which were grievous in nature and his evidence undoubtedly showed that the death of the deceased was homicidal in nature. This aspect has not been disputed at the Bar. P.Ws. 10 and 11 had investigated into the case. On a consideration of the evidence, the learned trial Judge found that the charge had not been brought home to the co-accused Gopal who was accordingly acquitted. Accepting the evidence of P.W. 1 and holding that the confessional statement of the appellant was voluntary and true, the appellant was convicted under section 30 - of the Code and was sentenced thereunder to undergo imprisonment for life.

(2.) Mr. Sahoo appearing for the appellant, has submitted before us that the evidence of the Judicial Magistrate would show that the appellant had made a voluntary statement as per Ext. 2. He has submitted that P.W. 1 had made prevaricating statements as to which weapon was in the hand of the appellant as having stated in the first information report that the appellant had been armed with a Kuradhi when he was seen coming away from the house of the deceased, he had in his evidence deposed that he had seen either a Tangi or a Hatuda as he could not see the whole of the weapon. Mr. Sahoo has contended that judged in the light of the medical evidence, the confessional statement of the appellant, if found to be true, could saddle the appellant with the responsibility of causing grievous hurt by a dangerous instrument and nothing beyond that, in view of the prosecution case that the assailants were two in number and the co-accused had been acquitted of the cbarge.

(3.) The appellant had land dispute with the deceased and the litigation had culminated in favour of the deceased and against him. There was thus motive for the commission of the crime. The evidence of P.W. 1 would show that he bad seen the appellant and his son corning away from the house of the deceased with weapons in hands. P.W. 1 had offered a reasonable explanation as to how and why he bad stated in the first information report that the appellant had been armed with a Kuradhi. But as regards the actual assault, sale and except the confessional statement of the appellant, there was no other evidence. The appellant had stated therein that he had dealt three blows on the neck of his mother by means of a Hatuda. It has been brought to our notice that three injuries one of which was grievous in nature without being fatal had been noticed near the neck. These injuries, according to the doctor, were not fatal in character. According to the medical evidence, injury Nos. 6 and 8 on the chest, which had caused internal injuries, had caused the death of the deceased. There was no evidence as to who had caused these two fatal injuries. Two named persons stood charged for commission of the offence of murder in furtherance of their common intention and one of them was acquitted. The medical evidence would undoubtedly show that more than one persons were the assailants and more than one instruments had been used for causing injuries on the person of the deceased. In view of these facts and circumstances, the contention raised by Mr. Sahoo, placing reliance on the principles laid down in Karnail Singh v. State of Punjab1, that the appellant could legally and appropriately be convicted under section 326 of the Code for causing grievous hurt should prevail. The learned Additional Standing Counsel has fairly submitted at the hearing that this would be the appropriate offence for which the appellant could be convicted in the circumstances of the case.