Mandangi Krusa vs State of Orissa

B.K. Behera, J.—In view of the clear and clinching evidence of two witnesses to the occurrence (P.Ws. 1 and 3) who had specifically named the Appellant as, the assailant of his brother Rama Mandangi (to be described hereinafter as to ''the deceased'') by means of an axe (M.O. I.) by dealing one blow on the head of the latter, supported by the medical evidence and the judicial confession (Ext. 15) of the Appellant recorded in accordance with, the procedure contained in Section 164 of the Code of Criminal Procedure and after due warning and caution and giving sufficient time for reflection, coupled with the recovery of the weapon of attack (M.O. I.), which, on chemical and serological test, contained human blood, apart from the extrajudicial confession as deposed to by P.W. 6 and some other prosecution witnesses which, as submitted by the learned Counsel for the Appellant, could not be rendered admissible because of the presence of the Chowkidar, a police officer, the finding of guilt recorded by the trial Court holding the Appellant to be the assailant of the deceased and coming to a conclusion that the Appellant''s blow on the head of the deceased had caused the death of the latter cannot be called in question and must be maintained.

It has been contended on behalf of the Appellant that the Appellant had, in unfortunate circumstances, killed his brother after a sudden quarrel and in the heat of the moment without any intention or premeditation and his act would come within the purview of Section 304 Part II of the Indian Penal Code (for short, ''the Code'').

It admits of no doubt from the evidence that there had ensued a sudden quarrel between the Appellant on the one hand and the deceased on the other when the former accused the deceased of misappropriating his properties. As would appear from the confessional statement of the Appellant, the deceased had dealt some slaps in the course of the quarrel which fact P.W. 2 had suppressed at the trial although she had made a statement about it in course of investigation. The Appellant abruptly inside the house and brought out M.O. I. and dealt but one blow on head of the deceased in the course of a sudden quarrel and in a fit of rage. There was no plan or premeditation. The Appellant was under an impulse, grave and sudden provocation offered by the deceased who had dealt on him. Apart from the question of grave and sudden provocation, it not reasonably be said in the Circumstances of the case that the Appellant had the intention of causing the death of his brother or that the intention to cause a bodily injury which was likely to cause his death. It would be legal, reasonable and appropriate to hold that by his act of dealt a blow on the head of the deceased by means of M.O. I, the Appellants the knowledge that he was likely to cause the death of his brother. His act would, therefore, be culpable homicide not amounting to murder punishable u/s 304 Part II of the Code and not u/s 302 of the Code as found by the learned Sessions Judge. In this connection, reference be made to some decisions of the Supreme Court reported in AIR S.C. 1532 Shankar v. State of Madhya Pradesh AIR 1983 S.C. 248 Jawahar Lal and Anr. v. State of Punjab, Jagtar Singh Vs. State of Punjab, and to the decisions of this Court reported in Narasingha Bisoi Vs. State of Orissa, .

In the result, the appeal is allowed m part. The order of conviction passed against the Appellant u/s 302 of the India Penal Code and the sentence to undergo imprisonment for life passed against him are set aside and in lieu thereof, the Appellant is convicted u/s 304 Part II of the Indian Penal Code and sentenced to undergo imprisonment for the period already undergone by him which has been for more than five years and which would meet the ends of justice. The Appellant be set at liberty forthwith.