STATE OF ORISSA Vs. PRAHALLAD GADNAYAK

JUDGEMENT

(1.) The respondent stood charged under section 302 of the Indian Penal Code (for short, the Code) with having committed the murder of his uncle Chendali Gadnaik (to be described hereinafter as Tthe deceasedT) by means of lathi (Dhaura Kila used in the cart) on December 17, 1978 in village Kadapada in the district of Sambalpur. The trial court has held at a fact that one blow dealt by the respondent on the head of the deceased by the lathi he was holding caused his death. It, however, found that the charge under section 302 of the Code had not been brought home to the respondent and the case would come within the purview of section 304 Part II of the Code, the respondent having committed culpable homicide not amounting to murder without any intention to cause the death of the deceased and on being provoked by the latter on the spur of the moment. The respondent has been convicted under section 304 Part II of the Code and has been released under section 4 of the Probation of Offenders Act. The State is in appeal.

(2.) Appearing for the State, Mr. P.K. Mohanty has submitted that on the facts and in the circumstances of the case, the charge under section 302 of the Code had been established and therefore, the trial court went wrong by improperly convicting the respondent under section 304 Part II of the Code. None has appeared for the respondent at the hearing.

(3.) As would be clear from the evidence and the impugned judgment, the occurrence had taken place in most unfortunate circumstances. The respondent had challenged Gurubari Bewa (P.W. 4) as to why she had picked up quarrels with his mother. At this, the deceased who was sitting nearby took exception to such conduct on the part of the respondent and asked him not to misbehave. A quarrel ensued and on the spur of the moment and without plan or premeditation, the respondent went inside the house, abruptly brought a Dhaura Kila and dealt but one blow on the head of the deceased which unfortunately proved fatal.