D. Pathak, C.J.
1. By this appeal from jail the appellant has challenged the order of conviction under Section 302, I. P. C: and sentence passed against him by the learned Sessions Judge, Cuttack, in Sessions Trial No. 5 of 1980.
2. A brief narration of the facts leading to the present appeal is that on 7. 6. 1979 P. W. 7, the younger brother of the appellant, requested the appellant to hand over the amount of Rs. 200/- which was kept in deposit with him for the purpose of the marriage of their sister Janaki. The appellant told P. W. 7 that at that moment he did not have the money and that he would give the money in the month of Ashadh next When this matter was reported to the deceased, the middle brother, the deceased requested the appellant to give the money. The appellant gave him the same reply as was given to P. W. 7. Then the deceased told the appellant that money should be raised even by pledging the rickshaw which wa3 purchased with the joint family fund for purchasing a bicycle to be given as dowry to Janaki. The appellant objected to this suggestion, but the deceased being insistent tried to take away the rickshaw for pledging the same, and, as a matter of fact, he removed the rickshaw for a short distance when the appellant came with a dagger and inflicted a blow with the same on the deceased's chest:. As a result of the blow, the deceased fell down. He was immediately removed to the Indupur Primary Health Centre where Dr. Nilambar Rath, P. W. 9, found him to be dead.
P. W. 7 lodged the First Information Report at the police station. On receipt of the report, the police swung into action, came to the place of occurrence, held inquest on the dead body and the dead body was sent for post mortem examination, The appellant was arrested on 10.6.1979. During the course of investigation, certain material objects were seized and they were sent for chemical examination which in turn were sent to the Serologist for opinion.
After conclusion of the investigation, the appellant was charge-sheeted under Section, 302, I. P. C, and put on trial.
3. The appellant took a plea of complete denial. He has further stated that he has been falsely implicated with a view to deprive him of his property.
4. During trial, ten witnesses, including the Investigating Officer (P. W. 10), Dr. Nilambar Rath (P. W. 9.) Medical Officer, Indupur Primary Health Centre, and Dr. Padma Charan Rath (P. W. 6), Assistant Surgeon, Kendrapara Sub-divisional Hospital, who conducted the post mortem examination of the dead body of the deceased, were examined. On appreciation of the evidence on record, the learned trial Court recorded a finding of guilty and convicted the appellant under Section 302, I. P. C. and sentenced him to regorous imprisonment for life.
5. Mr. Arun Kumar Misra, the learned counsel who has been engaged by the Orissa High Court Legal Aid and Advice Committee to defend the appellant, submits that the impugned judgment suffers from a serious infirmity because the learned trial Court did not take into account the fact whether the injury on the deceased was caused by the appellant with malke prepens or premeditation. The learned counsel further submits that the trial Court did not at alt examine the aspect as to whether the appellant caused the injury with the intention that in the ordinary course of nature it would result in the death of the deceased.
So far as the evidence of the eye witnesses is concerned, the learned counsel for the appellant does not have any criticism to make, because the evidence of P. Ws 1, 2 and 3 as to the factum of infliction of the injury is of such clinching nature that no exception can be taken.
P. W. 4, the husband of P. W. 2, came to the spot immediately after the occurrence. P. W. 1 is the widow of the deceased. She has stated in her evidence that on the date of occurrence at 8 P. M., P. W. 7 demanded Rs. 200/- from the appellant which was kept with him for the purpose of the marriage of their sister. The appellant expressed his inability to pay back the money and proposed that he would give the money some time in the next Ashadh. On the refusal of the appellant to give the money, P. W. 7 approached the deceased and complained before him against the appellant. Then the deceased proposed that as the money was badly necessary, the rickshaw which was jointly owned by the three brothers should be pledged and money should be raised for the marriage of Janaki, and thereafter the deceased made an attempt to move the rickshaw which was kept` in front of their house for the purpose of pledging it. At that point of time the appellant gave a blow on the chest of the deceased with a knife. The deceased sustained bleeding injury and fell down unconscious on the ground. She has further stated that after the deceased fell down on the ground Dhruba, Satrughna (P. W, 4) Bijaya, Nakula (P. W. 7) and others of the village removed him to the hospital at Indupur for treatment. Later, she could learn that her husband (deceased) died. She has identified M. O. II to be the napkin which was in the wearing of her husband and M. O. III to be the napkin tied to his waist. In her cross-examination she has stated that she did not see M. O. I., the dagger, prior to the occurrence on any occasion, and that she saw for the first time M. O. I. when it was used by the appellant against her husband. From her cross-examination it transpires that the rickshaw in question was being plied by the appellant as driver. It has also come out that he entire income from the rickshaw was being distributed in four equal shares ; the appellant was taking-two of such shares as he was driving the rickshaw and the other two shares were being appropriated equally by her husband and P. W. 7. From her evidence it appears that the rickshaw was the joint family property and it was in the possession of the family even before her marriage to Arjuni (deceased). It also appears that the rickshaw was the source of livelihood for the family.
P. W. 2, Shantilata Dei, is a neighbour of the appellant. She has stated that the occurrence took place at about 8 P. M. On that day P. W. 7, the younger brother of the appellant went to the room of the appellant and demanded back his Rs. 200/- which he. had kept in deposit with the appellant for the purpose of performing their sister's marriage. It is stated by this witness that the appellant then proposed that he would pay that amount in the month of Ashadh and not then. P. W. 7 then reported the matter to the deceased. Thereafter the deceased asked the appellant to pay back the money as the need was urgent. The appellant refused to pay back the money at all. Then the deceased tried to move the rickshaw for pledging it. At that point of time the appellant approached the deceased from behind and then turning to his front dealt a stab blow on the left side chest of the deceased with a knife as a result of which the deceased sustained bleeding injury and fell down unconscious on the ground. She has been examined at great length, but nothing of substance has been elicited from her so as to discredit her testimony with regard to the assault by the appellant on the deceased.
P. W. 3 Tuni Dei is the sister of the appellant. She has given a similar version as stated by P. Ws. 1 and 2.
6. The factum of death of the deceased is not disputed. It has been amply proved by the evidence of P. Ws. 1, 2, 3, 4, 7, and 10 and that of P. W. 9, Dr. Nilambar Rath, who examined the deceased soon after he was removed to the Indupur Primary Health Centre. P. W. 9 found the following injury:-
'A bleeding wound on the third left inter-costal space on his chest 2' left to the sternum, the size being 4' x 2' x 4' depth; pointed medically. The wound was a grievousone.'
7. P.W. 7 who lodged the First Information Report has corroborated the evidence of P. Ws. 1, 2 and 3' on all material particular. This witness has given a graphic description of the occurrence unfolding the entire prosecution case.
8. From the evidence noticed above, there is no manner of doubt that the appellant gave a stab blow with a dagger on the chest of the deceased which caused his (deceased) death.
9. Now, the only question for consideration is as to whether the appellant dealt the blow with an intention to kill the deceased.
On a scrutiny of the evidence noticed above, we are satisfied that no motive can be imputed to the appellant to kill the deceased who was his younger brother. It all developed on the spur of the moment when the appellant saw that the rickshaw, which was the source of income for the family was being removed by the deceased for being pledged.
The evidence discloses only one injury although the injury was caused on a vital part of the body, i.e., chest. From the circumstances of the case it cannot be said that the appellant assaulted the deceased with a dagger with an intention to kill him.
10. Mr. Misra, the learned counsel for the appellant, does not make any serious attempt to assail the evidence of the prosecution witnesses; He, however, submits that if at all the appellant is held guilty, he may be held so not for an offence under Section 302, I. P.Q., but for a lesser offence as the requisite intention to bring home the charge of murder is lacking. We find sufficient force in the submissions made by the learned counsel for the appellant. The learned counsel for the appellant has pointed out that only a single blow is alleged to have been given by the appellant as a result of which the deceased died. We do not think that in every case where a single blow is dealt by the accused, a case cannot be made out under Section 302, I. P. C. The learned counsel for the appellant has brought to our notice the decision of a Division Bench of this Court reported in 1984 (I) OLR 20 : Lachhman Dhublia v. State where, relying on a number of decisions of the Supreme Court, i.e., AIR 1954 S.C. 652 '. AIR 1965 S. C. 116; AIR 1968 S. C. 1390 ; AIR 1979 S. C. 1525; AIR 1979 S. C. 1532; AIR 1983 S. C. 185 and AIR 1983 S. C. 284, the Division Bench have held that: when a single blow is given on the spur of the moment and there is no material about premeditation for the murder but the injury has been caused 'on a vital part of the body, one can only impute knowledge that such an injury was likely to cause the death of the deceased and the offence would fall under Section 304, Part II, I. P. C.
However, in a subsequent decision of the Supreme Court in Vasanta v. State of Maharashtra, AIR 1983 S. C 361 (1), on the fact that a single stab-blow was dealt on the chest which resulted in fracture of the 6th rib and injured the heart and the lung and which according to the doctor was given with great force and was most cruel, it was held that the case squarely fell under Section 302, I. P. C.
It is not that in every case of a single blow, a case cannot be made out under Section 302, I. P. C. It will depend upon the nature of the injury, the part of the body where the injury was caused and other circumstances. In the facts and circumstances of this case, it cannot be said that the appellant had the necessary intention to cause the death of the deceased by inflicting a single dagger-blow.
11. After having heard the learned counsel for the parties and on a scrutiny of the entire evidence on record, we have no hesitation to hold that this is a case where the order of conviction under Section 302, I. P. C, cannot be sustained. Accordingly, we set aside the order of conviction and sentence under Section 302, I. P.C., and convict the appellant under Section 304, Part II, I.P.C., and sentence him to R. I. for seven years.
12. In the result, the appeal is partly allowed.