Judgment:
R.K. Patra, J.
1. The appellant Manbodha Pradhan stands convicted under Section 302. I.P.C. and sentenced to imprisonment for life.
2. The case of the prosecution briefly stated is that on 5.2.1995 at about 1 p.m. while Gethal Pradhan (hereinafter referred to as the deceased') and his son Rusava Pradhan (P.W.5) were cutting the ridge of their land situated adjacent to the land of the appellant with a view to take water to their land the latter picked up quarrel with the deceased and in course of quarrel dealt two blows with the back side of a spade on the head of the deceased causing severe bleeding, who fell down there losing his sense. P.W.5 raised hullah and on hearing the same. Babudhan Pradhan (P.W.3) rushed to the spot and found the deceased in a senseless condition with bleeding injury on his head. Immediately the deceased was removed to the hospital where he succumbed to the injuries three days after.
3. The plea of the defence is one of denial.
4. There is no dispute that the deceased had a homicidal death. P.W.4 is the doctor, who first attended the deceased at C.H.C. Barpali. He deposed that on 5.2.1995 at about 3.10 p.m. he received the deceased who had sustained head injury and there was fracture of the skull bone. He was referred to V.S.S. Medical College. Burla for further treatment as he was in semi-conscious state. P.W.7 is the doctor who conducted autopsy on the dead-body of the deceased. On dissection of the external injury, he noticed fracture over the head. According to him. all the injuries sustained by the deceased were possible by one blow.
5. P.W.5 is the eye witness. The learned Additional Sessions Judge has found the appellant guilty of commission of murder relying on his evidence. Shri Rao. learned counsel for the appellant did not assail his evidence. In our opinion rightly, in as much as, his evidence does not suffer from any infirmity. He has deposed that on the date of occurrence at about 1.00 p.m. while his father (deceased) was working in the field, the appellant came and cut the ridge of their land, and thereafter came to his father and gave two blows on the back-side of the spade, as a result his father fell down unconscious. He was taken to Barpali C.H.C. whereafter he was taken to Burla medical. In his cross-examination, it was brought out that when his father asked the appellant as to why he was cutting the ridge they quarrelled with each other and thereafter the appellant dealt a blow with the spade on the head of the deceased. On perusal of his evidence we have no hesitation to hold that it was the appellant, who gave the blow with the spade on account of which the deceased sustained injury and later succumbed to it.
6. Shri Rao. counsel for the appellant contended that the appellant assaulted the deceased without any pre-meditation and it all happened because of hot exchange of words between the appellant and the deceased and, therefore, the offence would come within Exception-1 of Section 300. I.P.C.
The appellant is the nephew of the deceased. There is nothing on record to suggest that the appellant had any intention to cause the death of the deceased. The incident took place over the dispute of cutting of ridge. There was hot exchange of words between the appellant and the deceased and during such quarrel the appellant gave the fatal blow. In the circumstances we are inclined hold that the appellant is entitled to the benefit of Exception-1 of Section 300. I.P.C. We. accordingly, hold him guilty under Section 304 Part-1. I.P.C. and convict him thereunder.
For the reasons aforesaid his conviction under Section 302. I.P.C. is hereby altered to one under Section 304. Part-I I.P.C. It is on record that the appellant has been in custody since 10.2.1995, i.e. from the date of his arrest. Thus, by now he has suffered imprisonment for more than eight years. Interest of justice would be served if he is sentenced to the period of imprisonment already undergone by him.
7. In the result, the appeal is allowed in part. The appellant's conviction under Section 302. I.P.C. is altered to one under Section 304. Part-I, I.P.C. In view of his incarceration for more than eight years, we direct his release forthwith, if his detention is not required in any other case.
P.K. Misra, J.
8. I agree.