P.K. Mohanty, J.
1. This appeal has been preferred against an order of conviction under Section 302, I. P. C. and sentence of imprisonment for life.
2. The charge against the appellant was that on 6-5-79 about 8 P. M. he committed the murder of Ramachandra Dhublia of village Anta under Jeypore Police Station in the district of Koraput by dealing a knife blow on his neck. It was alleged that while the deceased was talking to P. W. 3 Damaru Naik on presence of his neighbour P. W. 5, the appellant went there and addressed the deceased as 'MISA DHUBLIA' thereby meaning that the deceased was of mixed-breed. The deceased took exception to such utterance. There ensued a quarrel between the two in course of which the deceased gave a slap to the appellant. This was followed by a scuffle between the two and the deceased pushed the appellant to some distance. Then the appellant came near the deceased and dealt a blow on his neck with the knife which he was holding and left the place. The knife blow fell on the root of the neck. The deceased felldown and died instantaneously at the spot. This occurrence was witnesed by P. Ws. 3, 4 and 5. on hearing a hulla, the villagers came to the spot and found the deceased lying dead. They went in search of the appellant and found him concealing his presence under an Amari Bush. They brought him to the spot where he confessed to have killed the deceased.
F. I. R. was lodged on the same day at mid-night by P. W. 8 Dambarudhar Naik, the Ward-Member of the village implicating the appellant as the assailant of the deceased and mentioning about the extra-judicial confession made by the appellant. The Investigating Officer reached the stop at 1. 15 am. in the night and arrested the appellant. He seized the wearing lungi of the appellant which was stained with blood. While in custody, the appellant gave information leading to discovery of the weapon of offence from an Amari Bush. After due investigation, the appellant was charge-sheeted by the Police under Section 302, I. P. C.
3. During his examination under section 313, Cr. P. C. the appellant admitted to have gone to the house of the deceased in the evening of the date of occurrence. He also admitted that he had called the deceased as 'MISA DHUBLIA'. He stated that there was a quarrel in course of which the deceased gave him a first blow and assulted him with a split wood. He denied having dealt any knife blow on the neck of the deceased and contended that the deceased had attempted to kill him with the knife.
4. The prosecution relied on (a) the direct evidece of P. Ws. 3, 4 and 5, (b) the retracted extrajudicial confession of the appellant before P. Ws. 7 aud 8, (c) the evidence of P. W. 6 that immediately after the occurrence he saw the appellant running away from the side of the spot towards the Amari Bush and (d) the evidence of P. Ws. 7 and 10 about discovery of the weapon of offence from the Amri Bush.
5. The learned Sessions Judge, on a careful consideration of the evidence, of the above witnesses and the medical evidence, came to hold that the death of the deceased was homicidal and that the appellant was responsible for the same. We have had the evidence of these witnesses read to us. On a careful appraisal of the entire evidence on the record, we are satisfied that none else but appellant was responsible for the injury which resulted in the death of the deceased.
6. No doubt, P. W. 4 Lachhmi Dhublia is the widow of the deceased and P. W. 3 Damuru Niak is the sistser's son of the deceased. But their evidence cannot be lightly brushed aside merely on the ground of their relationship which the deceased particularly when their evidence gams corroboration from the other evidence on the record. The occurrence having taken place in the residential house of the deceased, P.W. 4 is a natural witness to the occurrence. P. W. 3 claimed to have been sent for by the deceased for a talk regarding digging of a well. P.W. 5 is an adjoining neigh bour of the deceased. All these three witnesses unanimously stated that the appellant went to the house of the deceased and addressed him as 'MISA DHUBLIA.' The deceased took exception to this and gave a slap to the appellant. Then there was a scuffle between the two. The deceased pushed the appellant to some distance and stood in front of his house. Immediately the appellant returned and dealt a blow with a knife on the neck of the deceased and left the place with the knife. The deceased fell down and died is tantaneously on the spot. The learned Sessions Judge elaborately discussed the evidence of these witnesses and believed the prosecution case. We see no cogent ground to differ from his findings.
7. The only point which was seriously argued before us is that the facts proved in this case do not make out a case under Section 392, I. P. C. against the appellant.
8. The appellant appears to have dealt a single blow with the knife on the spur of the moment in course of a sudden quarrel. There was no premeditation for the murder. There is also no. evidence that there was any previous ill-feeling between the appellant and the deceased. The appellant does not appaar to have intended to cause death or bodily injury as was sufficient in the ordinary course of nature to cause death. But as he dealt the blow on a vital part of the body he is presumed to have the knowldge that by his act he was likely to cause death. When a person is said to have given a single blow on a vital part of the deceased, it has been held in several cases that one can only impute knowledge that such an injury was likely to cause death and the offence would fall under Section 304, Part II, I. P. C.
9. In Chamru Budhwa v. State of Madhya Pradesh, A. I. R. 1954 S. C. 652 the accused was found to have given one blow with a lathi on the head of the deceased and their Lordships held that when the fatal injury was inflicted by the accused on the head of the deceased by only one blow it could as well be that the act by which death was caused was not done with the intention of causing death of causing such bodily injury as was likely to cause death.
In Willie (William) Slaney v. State of Madhya Pradesh, A. I. R. 1965 S. C. 116, the accused gave a single blow with a hockey stick on the head of the deceased and he was held guilty for the offence under Section 304, Part II, I. P. C.-
In Laxman Kalu Nikalje v. The State of Maharashtra, A. I. R. 1968 S.C. 1390, the accused dealt a single blow with a weapon on the chest of the deceased. The injury was found to be situated 2' blow the outer 1/3 of right elavicle on the right side of the chest and penetrated to the depth of 2' in to the chest cavity. Death was caused mainly because it cut the auxiliary artery and veins and caused shock and haemorrhage leading to death. In these circumstances, their Lordships held that the offence came within the third part of Section 299, I. P. C. Accordingly, the conviction under Section 302, I. P. C. was altered to one under Section 304 I. P. C.
In Mirsa Hidayatullah Baig v. State of Maharashtra, A. I. R. 1979 S.C. 1525, the accused dealt a single blow on the head of the deceased with a walking stick. It was held that the appellant did not have the intention to casue the particular injury which resulted from the blow given to the deceased. But as he aimed the blow at the head of the deceased which is a vital part of the body he must be presumed to have the knowledge that death was the likely result of that act. Accordingly, the conviction under 302, I. P. C. was altered to one under Section 304, Part II, I. P. C.
In Shankar v. State of Madhya Pradesh, A. I. R. 1979 S. C. 1532, the accused caused an injury on the neck of the deceased with a dagger, Their Lordships found that there was no premeditation for the murder and that the accused had no intention of causing the particular injury that he caused to the deceased. But he must be deemed to have the knowledge that death may be caused by his act. Accordingly, the conviction under Section 302, I. P. C. was altered to one under Section 304 Part II, I. P. C.
In Hari Ram v. State of Haryana, A. I. R. 1983 S. C. 185, the accused in the heat of an alteration seized a jelli and thrust it into the chest of the deceased. On the evidence, their Lordships held that the accused had no intention to kill and accordingly he was', convicted under Section 304 Part II, I. P. C.
In Jawahar Lal and Anr. v. State of Punjab, A. I. R 1983 S.C. 284, the accused had given a solitary blow of knife to the deceased which fell on his chest. The accused had no malice against the deceased. He had no quarrel with the deceased and the accused did not make any attempt at giving a second blow. Their Lordships held that the accused could not be said to have intention to cause that particular injury and that even if the injury proved to be fatal, the case would not be covered by Section 300, para 3 but the accused could be attributed to the knowledge that he was likely to cause an injury which was likely to cause death. Accordingly the conviction under Section 302 I. P. C was altered to one under Section 304 Part II, I. P. C.
10. Keping the aforesaid principles in mind and considering the circumstances in which the single blow was inflicted by the appellant, we are of the opinion that the appellant could not be convicted under Section 30, I. P. C. But he is presumed to have the knowledge that the injury inflected by him was likely to cause death and hence the offence would fall under Section 304 Part II, I. P. C We, therefore, alter the conviction of the appellant from Section 302, I. P. C. to Section 304, Part II, I. P. C. and reduce the sentence to the period already undergone, as we find that the appellant has been undergoing the sentence since 22. 2, 1980.
With the above modification, the appeal stands dismissed.
11. I agree.