Pradip Mohanty, J.
1. This appeal is directed against the Judgment and order dated 30.09.1988 passed by the Addl. Sessions Judge, Bhubaneswar passed in S.T. No. 24/213 of 1985-84 convicting the Appellant under Section 325 IPC and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000 (one thousand), in default to undergo further rigorous imprisonment for one month.
2. The case of the prosecution is that the deceased and the Appellant belong to village Mahukuna. A dispute arose regarding possession of Taila land measuring about 18 gunths between the deceased and his son on one side and the Appellant and his father on the other. A settlement was effected through the intervention of the police, according to which the deceased had been cultivating the disputed land. In the year 1984, as usual, the deceased and his son raised paddy crop in the said land. Since there was over growth of grass weeds, the son of the deceased on 09.07.1984 at about 4 P.M. drove his buffaloes into the said land for grazing and destruction of the over grown grass. At about 4.30 P.M., the Appellant on being informed by his father came to the land, challenged and was driving the cattle away from the land for impounding in the kine house to which the son of the deceased protested. Therefore, a quarrel ensued in course of which the deceased intervened and questioned the high handed action of the Appellant. Then the Appellant snatched away a stick from his father and assaulted on the head of the deceased, as a result of which the deceased fell down and became unconscious. One Maheswar Ghanta, who was nearby, came there and helped Satrughan (son of the deceased) in lifting up the deceased. When they reached in front of the house of one Rajan Nayak, all the accused persons including the Appellant gathered there being armed and the Appellant and accused Hari Ghanta dealt lathi blows on the heads of the deceased, as a result of which he fell down senseless. At about 11.30 P.M. in Gania Primary Health Centre the deceased succumbed to the injuries.
3. The defence case was that the land in question was in possession of the present Appellant and they were cultivating the land. They denied the knowledge of the occurrence.
4. In order to prove its case, the prosecution examined as many as twelve witnesses including two doctors and the I.O. and exhibited 16 documents. On the other hand, defence examined only one witness.
5. The Learned Addl. Sessions Judge, Bhubaneswar, who tried the case, by his judgment dated 30.09.1988 acquitted the present Appellant of the offence under Sections 323/302 I.P.C. but convicted him for commission of offence under Section 325 I.P.C. He also acquitted the other accused persons of the offence under Sections 302/148/323/324/149 I.P.C.
6. Perused the record. In the instant case, P.Ws.2, 3, 6, 8 and 9 are interested witnesses. P.W.2 is a chance witness. P.W.3 specifically stated about the assault to the deceased. His evidence reveals that there was a sudden quarrel. The deceased was in the field. The father of the present Appellant, namely, Braja Ghanta was standing holding a lathi. The Appellant snatched away that lathi from his father and delt two to three blows on the left side head of the deceased. Due to sudden provocation and in the heat of passion the Appellant inflicted the blows on the deceased without any specific intention. The doctor (P.W.11) who conducted autopsy of the deceased found the following external injuries.
(i) Swelling of the frontal and parietal area of the right side of the scalp extending above the right eye and right ear, size 7' x 3' x 1'.
(ii) Swelling over the right chick in front and adjacent to the right ear, size 3' x 2' x 1/2'.
He also found following internal injuries.
(i) Subaponeurotic haematoma over the right front parietal region extending above the right eye and ear.
(ii) There was communated fracture of right parietal bone. One piece of size 1 1/2' x 1' was dislodged into the brain matter. The membrance of the brain were torne at the site of the fracture and there was subdura haematoma of size 3' x 2 1/2'. The brain matter underlying the fracture was lacerated, oedematous and clotted blood was present inside. The area of laceration of brain was 2' x 1' x 1'.
(iii) Black clotted blood was found over the right chick in front and adjacent to the right ear.
The injuries were ante-mortem in nature and sufficient in ordinary course of nature to cause death. He opined that the cause of death was due to shock and haemorrhage consequent to fracture of cranial bones and laceration of brain matter. In cross-examination he admitted that he did not notice any tailing of the external injuries, so also the internal injuries. The evidence of P.W.10 (I.O.) is found to be full of major contradictions. He admitted that a counter case has been lodged against the deceased. Basing upon the oral report of the present Appellant, Gania P.S. Case No. 21 dated 9.7.1984 was registered, which is the counter case to the present one. The present Appellant sustained injuries and he was examined by the doctor on police requisition. P.W.11 (doctor) who examined the present Appellant also admitted that four injuries were found on the person of the Appellant. All the injuries were simple in nature. The evidence of P.W.8 is very clear and cogent to the extent that the present Appellant snatched away the lathi from his father Rajan Ghanta and gave three to four blows on the head of the deceased causing bleeding injuries. Thereafter, the deceased fell down in the field. P.W.11 (doctor) corroborated the evidence of P.W.8 and stated that the death was due to shock and haemorrhage consequent to fracture of cranial bones and laceration of brain matter. There is no dispute with regard to assault by the present Appellant to the head of the deceased with a lathi. Therefore, this Court is not inclined to interfere with the order of conviction.
7. It is stated by the Learned Counsel for the appellant that in the meantime 20 years have elapsed since filing of this criminal appeal. During investigation the Appellant was in custody for a period of near about 2 months. Therefore, he prays to release the Appellant on Probation of Offenders Act. Mr. Singh, Learned Additional Government Advocate vehemently opposes the prayer.
8. Perused the record. Considering the submissions made by the parties, since the Appellant was in custody for near about 2 months and in the meantime 20 years have elapsed, this Court modifies the substantive sentence to the period of imprisonment already undergone and also modifies the fine amount to Rs. 10,000 (ten thousand) and in default to undergo R.I. for 3 (three) months. This Court directs that if the fine amount is realized from the present Appellant, 50 % of the same shall be paid to the widow of the deceased.
With the modifications, as indicated above, this criminal appeal is disposed of.
A.S. Naidu, J.
I agree.