S.K. Ray, J. - (1.)THE Appellant along with five others were charged under various sections of the Indian Penal Code on account of murder of one Maidhan Suna and were tried by the Sessions Judge of Balangir -Kalahandi. The learned Sessions Judge convicted the Appellant under Section 302, Indian Penal Code and sentenced him to imprisonment for life and also convicted another accused Thakur Sahu under Section 323, Indian Penal Code and sentenced him to six months rigorous imprisonment. He acquitted rest of the accused persons. Thakur Sahu has not appealed and has undergone his sentence. The present appeal has been preferred by the Appellant from his aforesaid conviction and sentence.
(2.)THE deceased and all the accused persons are co -villagers being residents of village Limpada under Bangomunda Police Station. The Accused persons are also related inter se. The Appellant and Netrananda Sahu alias Muni are sons and the others are brothers of one Dasaratha Sahu. The prosecution story is that the deceased Maidhan had pledged a bell -metal khuri with accused Sana alias Sankar Sahu. On 4 -12 -1972 at about 4 p. m. the deceased accompanied by p.w. 3 was returning to his village from Mukhapati a long a trodden path. Behind them were coming p. ws. 5 and 6. When the deceased and p.w. 3 reached the land of Sankar Sahu they found the latter reaping paddy in his land. The deceased told p.w. 3 that he had pledged his bell -metal Khuri with Sankar Sahu and he would ask him for 5 rupees more against that pledge. The deceased so saying went to Sankar Sahu and asked him for 5 rupees. Sankar Sahu refused to pay anything to him ultimately denying any pledge of any article by the deceased. In course of this heated altercation the deceased threatened Sankar Sahu to report this matter to the police, upon which Sana alias Sankar Sahu exhorted other accused persons who were present nearby to assault the deceased. Makunda then rushed at the deceased with a lathi and accused Muni, Sane and Rajkumar surrounded him. Subsequently, the Appellant came there with a tangi and dealt five blows in succession to the deceased out of which the second, third and fourth blows were dealt on the neck and head of the deceased.. After the deceased fell down on the ground accused Sana alias Sankar Sahu dealt a blow with a tabli on the left calf of the deceased. In consequence of these assaults the deceased died instantaneously at the spot.
When the assault commenced on the deceased, p.w. 3 raised a haulla that the deceased was being done to death, whereupon accused Thakur Sahu gave a lathi blow on his forehead causing a bleeding injury. Thereafter all the accused persons fled away. This, in essence, is the prosecution story. '

P.w. 7 being informed by the wife of the deceased about the occurrence came to the spot and found the deceased lying dead on the land of Rajkumar with multiple incised injuries on his person and found the accused persons running away towards the village. He proceeded to Bangomunda Police Station, two lines off from the place of occurrence, and lodged first information report at 6 p. m. on that day, i.e. 4 -12 -1972. P.w. 8, the A.S.I. being in charge of the Police Station at the time, drew up the formal F.I. R, registered a case and took up investigation by immediately examining the informant. He reached the spot at 8 -30 p. m. when it was quite dark and so he made arrangements for guarding the dead body during the night and examined p. ws. 3, 5 and 6. On the following morning he searched the houses of the accused persons and recovered the tangi (M.O. I) from the house of accused Thakur and seized the same. He also recovered two tab lis including M.O. II from the house of accused Rajkumar and seized the same. The Officer -in -charge arrived at the spot at 1.40 a. m. on 5 -12 -1972. The A.S.I. (p.w.8) handed over charge of investigation to the former (p.w.9) who tested the witnesses already examined by p.w. 8 and held inquest over the dead body of the deceased on 5 -12 -1972 He seized three pieces of lathis found lying near the dead body. He then sent the dead body, accompanied by Gramarakhi and one Bharat Suna, for post -mortem examination to Kantabanji dispensary. He despatched M. Os. I and II for chemical examination and serological test. He arrested the Appellant on 5.12.1972 and other accused persons on 8.12.1972. Ultimately, he submitted charge -sheet against all the six accused persons including the Appellant.

(3.)THE defence is one of denial. However, from the trend of cross -examination it appears that the defence is also exercise of right of private defence of property and person. It has been suggested to prosecution witnesses that the deceased and p.w. 3 who were returning to the village found Minimichi, wife of accused Thakur, grazing her sheep. The deceased tried forcibly to take away one ewe and on protest by Miramichi assaulted her. To protect Minimichi from assaults and molestation and the ewe from being forcibly taken away that the deceased was assaulted with the aforesaid fatal consequences.