S.K. Mohanty, J.
1. This appeal from jail is directed against a judgment of conviction of the appellant for the offence under section 302, I.P.C. and sentence of imprisonment for life for having killed his mother Metkami Erra.
2. Prosecution case in brief is that the appellant quarrelled with his wife (P.W.3) suspecting her character and for this reason, the wife went away to her father's place. On 7-12-89 the appellant had gone to bring back his wife, but the wife did not come. In that evening the mother abused the appellant for having gone to bring his wife. In this regard, the appellant and his mother also quarrelled in the morning of 8-12-89 at about 6 A.M. when the appellant become furious and assaulted on the head of his mother by means of an axe causing her death. After the incident the appellant fled away with the axe.
3. When the charge for the offence under section 302, I.P.C. was read over and explained to the appellant, he pleaded guilty and made the statement that out of fear, he killed his mother. In spite of such plea, witnesses were summoned and at the close of prosecution evidence, the appellant was examined under section 313, Cr.P.C. when he took the plea of denial.
4. There is no direct evidence against the appellant. P.W. 1 his sister. P.W. 2 his elder father, P.W. 3 his elder mother and P.W. 5 the headman of the village are post-occurrence witnesses. Relying on their evidence, the judicial confession of the appellant and the extra-judicial confession before P.W. 5, the medical evidence of the doctor, P.W. 6, who held post-mortem examination over the dead body of the deceased and fact of recovery of the axe M.O. 1 on the information furnished by the appellant before the Investigating Officer while in custody, the learned Sessions Judge has convicted and sentenced the appellant as above.
5. Mr. A. K. Mohapatra for the appellant urged that in absence of direct evidence and since no human blood has been detected on the axe seized in the case, prosecution has failed to connect the appellant with the crime alleged and at any rate on the evidence on record, it cannot be said that the appellant is guilty of culpable homicide amounting to murder.
6. On post-mortem examination, the Doctor, P.W. 6 found one lacerated open wound of the size of 3' x 2' x l' situated over the occipital region posteriorly 3' away from the left ear. On dissection he found depressed fracture of occipital bone, rupture of membranes, haematoma below the membranes and compression of brain-matter. In his opinion, the injury was ante-mortem in nature and death was due to intra-cranical and extra-cranial haemorrhage resulting from the injury. Considering the evidence of the doctor, the trial Court has rightly arrived at the finding that the death of Madkami Erra was homicidal in nature.
7. As to the quarrel by the appellant with his wife (P.W.4), latter has stated that four to five days prior to the occurrence, she went to her father's house as the accused abused and asseulted her. On one Thursday, the appellant came to her with the tangia (M.O.1) and told her to return to his village, but out of fear she did not return and on the next day (Friday), P.W. 1 came and informed her that the appellant had killed his mother. Thereafter, P.W. 4 came back to the village with P.W. 1 and saw her mother-in-law lying dead with bleeding injury over her backside head.
8. In above connection, P.W. 1, his sister, has stated that three to four days prior to the occurrence, the appellant had gone to bring his wife, but she did not return and on this account, there was quarrel between the appellant and his mother. On the early morning of date of occurrence, the mother returned with water and then P.W. 1 herself went to bring water. While she was returning with the water, she noticed the appellant going on a cycle carrying the blood-stained tangia (M.O.1) on the carrier of the cycle. Reaching the house she found her mother lying dead on the pinda with bleeding injury on her backside head. The evidence on record reveals that on the date of occurrence the appellant, his sister P.W. 1 and the mother (deceased) were the only occupants of their house.
9. After seeing the dead body, P.W. 1 claims to Wave gone to the house of her elder father, P. W.2 and her elder mother P.W. 3 and informed them about the death of her mother. P. Ws. 2 and 3 while corroborating P.W. 1, have stated that they were informed by P.W. 1, that the appellant killed her mother with tangia and went away with the same. They claimed to have visited the house of the appellant and found the mother of the appellant lying dead on the pinda with bleeding injury on the back of her head and the appellant was then absent from the house. P. Ws. 2 and 5 also claimed to have gone to the Police Station (25 KMs away from the spot) to lodge the report. According to them, just before they reached the police station the appellant came across them with the cycle and confessed to have killed his mother by Tangia. There is nothing on record to show that P.Ws. 2 and 5 were ill-disposed towards appellant so as to make false statements regarding the extra-judicial confession. P.Ws. 2 and 5 then went to the police station along with the appellant and there P.W. 2 lodged the F.I.R. at 1.30 P.M. The F.I.R. mentions about the extra-judicial confession and fully corroborates the evidence of P.Ws. 1, 2, 3 and 5.
10. Now the judicial confession of the appellant on record may be dealt with. Such statement has been marked as Ext. 16. Herein the appellant has stated that in the early morning his mother in a rough tone questioned him as to why he was not divorcing his wife. In this matter she had abused him earlier. In the aforesaid early morning on repeated abuses of her mother he become furious, brought out his axe and dealt a blow by means of the case on her head as a result of which she fell down with bleeding injuries. Thereafter he went on a cycle to the police station and while going on the way he concealed the Tangia inside Amari bushes. He further stated that on being questioned by the Investigating Officer he pointed out the place of concealment and the Investigating Officer seized the Tangia thereform. He also stated that at the time of seizure the Tangia was stained with blood and that when he assaulted his mother, excepting two of his small childern, there was none else nearby. This confessional statement was recorded by the Special Judicial Magistrate on 18-12-89. During examination under Section 313, Cr.P.C. the appellant denied to have made the judicial confession. But as already stated, the confessional statement is amply corroborated by other evidence. Further at the commencement of the trial, the appellant pleaded guilty and admitted to have killed his mother.
11. The Investigating Officer, P.W. 7 claimed that after he arrested the appellant at the police station and while under custody the appellant disclosed to have concealed the Tangia used in killing the deceased inside Amari bush on the right side of the road near M.V.25 and so saying, he led the Investigting Officer and the witnesses to that place and gave recovery of the Tangia (M.O.I) bringing it out from inside Amari bush. P.W. 5 has also stated that after arrest the appellant disclosed that he had kept the Tangia concealed near the road and leading all of them to that place, pointed out the Tangia (M.O.I) lying inside the Amari bush and the Investigating Officer seized the same. On chemical examination too small blood was detected on the Tangia and thereform the origin of the blood could not be examined. From the evidence on record it reveals that this Tangia belonged to the appellant and he was using the same. It was seized from inside Amari bush on the information of the appellant and on his pointing out the same. This is a circumstance pointing to the guilt of the appellant for the crime alleged.
12. Considering the aforesaid facts, evidence and circumstances, there is no room for doubt that it is the appellant who caused the death of his mother by assaulting on her head by means of an axc. Now the question arises what offence he has committed. Only one blow was given and that too not on the sharp side of the tangia. It was not a hard blow as in that event the head would have crushed. So it cannot be said that the appellant intentionally caused the death of his mother. In above facts, however, there is no difficulty in arriving at a finding that the appellant intentionally caused bodily injury, which is likely to cause death coming under the 2nd limb of section 299, I.P.C. In other words, prosecution has successfully proved that the appellant committed the offence of culpable homicide. As already stated, the medical opinion is that the injury was sufficient to cause instantaneous death. This apart, the blow having been inflicted on the head by means of a tangia thereby causing fracture of occipital bone, rupture of membrances and compression of brain matter, the inference is that the injury intended to be inflicted was sufficient in ordinary course of nature to cause death. In other words, the act done comes within the ambit of 3rd paragraph of section 300, I.P.C. and consequently the offence committed by the apppellant shall be murder unless it comes within one of the exceptions. Apparently, the appellant acted suddenly without any pre-meditation in a heat of passion on being raged as a result of the abuses hurled by his mother in the matter of bringing back of his wife. Having dealt only one blow it cannot be said that the appellant took undue advantage or acted in a cruel manner. Consequently, Exception 4 applied to the tacts of the case and the offence of culpable homicide committed by the appellant cannot amount to murder. But the act having been done with the intention of causing bodily injury which is likely to cause death, the appellant clearly committed the offence punishable under section 304, Part I of the Indian Penal Code. For taking this view, we derive support from the decision of the apex Court in Surendra Kumar v. Union Territory, Chandigarh, AIR 1989 SC 1094, in which case a knife blow on the chest had caused the death and conviction of the offender in similar facts was altered from section 302. I.P.C. to section 304, Part I, I.P.C.
13. In the result, while dismissing the appeal we alter the conviction of the appellant to one under section 304, Part I, I.P.C.and sentence him to undergo rigorous imprisonment for a period of seven years.
D.M. Patnaik, J.
14. I agree.