P.K. Tripathy, J.
1. Prosecution case is that Sutan Dehury (hereinafter referred to as the deceased), on the date of occurrence, in the evening hours left the cattle in his master's house and went out. P.W. 1, the informant was his master. At about 7 p.m., Subash Chandra Mohanta (P.W. 1), Padmalochan Barik (P.W. 3) and Baya Singh (P.W. 9) came and informed P.W. 1 that accused committed murder of the deceased by means of Bamboo lathi. On hearing that P.W. 1 together with others rushed to the spot and they discovered that deceased was lying dead with injuries. Suni Singh, wife of the accused was also lying with injuries and the accused was standing there with a Bamboo lathi. On being asked by P.W. 1, he admitted to have assulted Suni Singh as well as the deceased because they were found in objectionable position. P.W. 1, therefore, lodged the F.I.R. Ext. 1 and set the law into motion. After routine investigation charge-sheet was submitted against accused, as noted above, for the offence under Section 302 IPC for committing murder of the deceased and under Section 307 IPC for attempting to murder Suni Singh.
2. In course of the trial, 14 witnesses were examined and various documents from Exts. 1 to 17 were exhibited and the Bamboo lathi, i.e., weapon of offence, was marked as M.O.I. P.W. 10 was the doctor, who conducted autopsy on the body of the deceased and found one abrasion over scrotum, one lacerated wound of 2' x 1/ 2'x bone deep transversely placed on the four head one inch above the left eye brow and bruises of dimension of 2' x 8' and 2' x 6' transversely placed on the left scapula interiorly. On dissection P.W. 10 found that 7th, 8th and 9th left ribs were fractured, the pleura had turned over the fractured ribs, lacerated injury ' x 1' over left bug and there was fracture of left humerous. P.W. 10 opined that time of death was within 48 hours from the time of examination and that death was due to aforesaid injuries. P.W. 10 also opined that injury found in the fore-head is possible by M.O.I. The postmortem report and opinion report are marked as Exts. 8 and 10. In the cross-examination, P.W. 10 stated that he did not engage of sexual intercourse committed by the deceased before his death. Evidence of P.W. 10 proved homicidal death of the deceased and that aspect was not challenged in the Trial Court.
3. Admittedly, there were no eyewitnesses to the occurrence except Suni Singh, the injured. It reveals from the lower Court record that summons could not be served on her because her whereabouts were not known to anybody in the concerned village. Even the I.O. (P.W. 13) made an attempt to trace out that injured but failed. Under such circumstance, prosecution heavily relied on the circumstantial evidence, as noted above so also the extra judicial confession made by the accused before P.Ws.1 and 6. It has been rightly pointed out by the Trial Court that Learned State Defence Counsel did not challenge the aforesaid piece of evidence, i.e., extra judicial confession. On the other hand, perusal of the deposition of P.W. 1 and other witnesses, it is seen that questions have been put to lend credibility to the extra-judicial confession. Under such circumstance, there is nothing against findings recorded by the Trial Court that the deceased died because of injury inflicted on him by the accused.
4. At this stage the question that comes for consideration is as to whether accused is guilty of the offence of murder or culpable homicidal not amounting to murder. It was admitted by P.W. 1 and other witnesses to the extra-judicial confession that when the accused found his wife and the deceased were indulging in merry making that he (and) got provocation and thereafter assaulted the deceased and the injured. Under such circumstance, the findings of the Trial Court that the act of the Appellant was culpable homicide not amounting to murder is found to have been correctly recorded. Keeping the circumstances preceding in the occurrence leading to unfortunate death of the deceased, the substantive sentence which has been imposed appears to be sufficient and therefore while maintaining order of conviction for the offence under Section 304 part-I and confirming the sentence of 7 years of rigorous imprisonment, this Court set aside the order of sentence of fine for the offence under Section 304 part-I IPC imposed byjbe Trial Court. The Sentence is accordingly modified.
5. (Sic) So far as the charge under Section 307, IPC is concerned, no doubt P.W. 1 and other witnesses proved that when they arrived at the spot they also found injured, Sum Singh lying on the spot with injuries. P.W. 13 is the Doctor, who examined Suni Singh and issued the injury certificate, Ext. 12. P.W. 13 has stated in his evidence that he found lacerated injury 1/2' x 1/4' x 1/6' on the left upper eye lid, a bruise of 1' x 1/2' on the middle of right arm and a bruise of 1' x 1/2' on the middle of left arm P.W. 13 has opined that all the injuries were simple in nature. P.W. 13 was further stated that he recorded the statement of the injured. That statement was marked as Ext.13. In that statement Suni Singh stated about sleeping with the deceased when accused arrived and assaulted both of them. The tenor of evidence of P.W. 13 or any of the witnesses examined in course of the trial does not reveal that the accused made an attempt to commit murder of injured Suni Singh. Under such circumstance dealing of blows and causing injury in this case automatically does not amount to offence of attempt to commit murder punishable under Section 307, I.P.C. For the reasons stated above, this Court finds that conviction of the accused for the offence under Section 307 I.P.C. is not correct. On the other hand, since a lathi was used to commit simple injuries on the body of Suni Singh, therefore accused is liable to be convicted for the offence under Section 334, IPC, which provides for maximum sentence of imprisonment for one month or with fine of Rs. 500/-.Under such circumstance, while setting aside the order of conviction under Section 307, IPC accused is found to be guilty of offence under Section 334, IPC and in view of the sentence imposed on him for the offence under Section 304-part-I, IPC, no separate sentence is awarded.
6. The Jail Criminal Appeal is accordingly allowed in part. Appellant ere set at liberty forthwith if he has already served the sentence and further if his detention in jail is not required in any other case.