MANDANGI KRUSA Vs. STATE OF ORISSA

JUDGEMENT

(1.) 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 the deceased) by means of an axe (M.O.1) 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 extra-judicial 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 appellantTs blow on the head of the deceased had caused the death of the latter cannot be caned in question and must be maintained.

(2.) It has been contended on behalf of the appellant that the appellant had, in unfortunate circumstances, tilled 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).

(3.) 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 the course of investigation. The appellant abruptly went inside the house and brought out M.O.I. and dealt but one blow on the 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 un4er an impulse of grave and sudden provocation offered by the deceased who had dealt slaps on him. Apart from the question of grave and sudden provocation, it could 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 he had 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 dealing a blow on the head of the deceased by means of M.O.I., the appellant had 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 under section 304 Part II of the Code and not under section 302 of the Code as found by the learned Sessions Judge. In this connection, reference may be made to some decisions of the Supreme Court reported in Shankar v. State of Madhya Pradesh, Jawahdr Lal another. v. State of Punjab, jag tar Singh v. State of Punjab and to the decisions of this Court in Narasingh Bisoi v. State and State of Orissa - v. Prahallad Gadnayak.