K. Lahiri, J.
1. learned Counsel for the appellant has contended that, at best, this case is punishable Under Section 304, Part I Indian Penal Code and does not fall within the four corners of Section 302, I. P. C, It arose out of a sudden quarrel at the point when the prosecution as well as the accused sides were surcharged with passion, Mayur came at the scene of the occurrence from nowhere to become the victim of Huja assault. Only one blow was given, The weapon of assault was neither seized nor produced by the prosecution because it must have been an ordinary weapon which, in the ordinary course of events could not have produced death, The contentions have strong merits,
2. The prosecution case is that over a goat there was a quarrel going on between the parties from morning and it continued. As it often happens, there was a smouldering fire, but the woman-folk fanned the fire, asked the combatants to be more manly. Thus the quarrel took a bad turn. However, misfortune as it would have been, Mayur the deceased who had nothing to do with the quarrel or with the subject-matter of the quarrel intervened and it is stated that the accused lost temper and dealt one blow with a weapon styled as 'Huja' which accidently fell on the chest part of his body. The quarrel stopped, the deceased was taken for medical treatment but died on the way. The police made investigation, submitted charge-sheet; the accused stood his trial before the Court of Sessions wherein 8 witnesses were examined and two witnesses were examined on behalf of the accused. The defence was a denial. The learned Judge disbelieved the defence evidence and gave reasons for such rejection.
3. The eye-witnesses are PW2 Amir-unnissa, PW 3 Kurun Ness and PW 4 Ramjan Ali. They speak in one voice that Mayur had nothing to do with the quarrel and arrived at the scene suddenly but became a victim of 'Huja' assault by the accused. Where is the weapon? Where is the seizure list? We do not find in the evidence that any of the witnesses ever described the nature of the weapon. The learned Public Prosecutor has failed to explain why the weapon was not seized and/or produced before the Court. The learned Public Prosecutor further failed to show cause as to what was the nature of the weapon, that is to say, whether it was a deadly weapon, heavy weapon, light weapon or any other simple weapon, Who gets the benefit? The accused. Under these circumstances, we are constrained to hold that the assault was by a simple weapon, but for one reason or the other it fell on the 'plurae region'. We find the length and breadth of the injury but do not find its depth. There is no evidence worth the name that the weapon was deadly to infer the intention of the accused that he had known that the injury inflicted was likely to cause death or it would be sufficient in the ordinary course of nature to cause death. Nor is there any material to show the accused know that the act must in all probability cause death. The knowledge of the accused can be established by the prosecution in establishing the nature -of the weapon used. If the weapon is dangerous in nature and is inflicted on a vital part of the body, one can reasonably conclude that the intention was to commit culpable homicide amounting to murder. In the instant case, non-production of the weapon of assault and as a matter of fact non-description of the weapon clearly establish that it was an innocuous weapon and definitely was not of a dangerous type. Therefore, we conclude that the accused in a fit of passion without having any intention to murder Mayur (the deceased) used a small weapon, which unfortunately resulted in his death. This is the admitted case of the parties,
4. Under the circumstances We hold that the conviction of the accused Under Section 302, I. P. C, cannot be sustained. However, in view of the nature of the act and its consequences we hold that the accused had committed an offence of culpable homicide not amounting to murder and is liable for punishment Under Section 304, Part II, IPC which we hereby do. It is stated at the Bar that the appellant has already undergone about 6 years of imprisonment. In view of the nature of the allegations, the facts and circumstances of the case, the weapon used, age of the accused, nature of the crime and the surrounding circumstances, we sentence the accused to the period already undergone by him. He shall be released forthwith.
6. The appeal is allowed to the extent indicated above.