B.K. Patra, J.
1. The two appellants and their father were tried on a charge under Section 302, Penal Code the case against them being that at 8 P. M. on 20th November, 1964, at mouza Tentei within the Soro P. S. they committed murder of one Udia Bewa. The father was acquitted in the trial court, but the two appellants were convicted under Section 304, Part II, Penal Code and each of them was sentenced to undergo R. I. for 5 years.
2. Accused No. 1 Bhagat Mallik, who was acquitted in the trial court, has three sons, namely, the two appellants and one Markand Mallik (P. W.2). Markand's wife is Jema Dei (P.W. 3) and Jema's mother was the deceased Udia Bewa. Some time before the occurrence Bhagat Mallik had divided his properties amongst his three sons. Appellant No. 2 Naran being a leper was given only six gunths out of the family lands and the rest of the properties were divided equally amongst the two other sons, namely, appellant No. 1 and P. W. 2.
Arrangement was made between appellant No. 1 and the P. W. 2 that they would maintain their parents. After the division of the family properties there remained an excess of one gunth of land which was cultivated by P. W. 2. After P. W. 2 cut and reaped the crops from this one gunth of land, appellant No. 1 wanted a half share out of it, to which P. W. 2 objected. On the date of occurrence, namely, 20-11-64 Bhagat Mallik, the father requested P. W. 1, the son of Udia Bewa (brother-in-law of P. W. 2) to make an equitable distribution of the produce from this one gunth of land between P. W. 2 and appellant No. 1 and he did so by allotting a 2/3rd share to P. W. 2 on the ground that he raised the crop and the remaining l/3rd share to appellant No. 1. The latter being dissatisfied with this distribution is alleged to have assaulted P. W. 1. P. W.2 intervened but he too was assaulted. The further prosecution case is that on seeing this the deceased came to the spot and tried to separate them, when the two appellants assaulted her and caused her death.
3. Post-mortem examination was held over the dead body by the doctor (P, W. 12) who found the following external injuries on the person of the deceased:
(i) Skin peeled off on the right side of the back area 14' x 4' extending below the right axilla to obliquely downwards and backwards near the vertebral column of lower thoracic vertebrae. Whole of this area looks red.
(ii) Skin peeled off in an area between right shoulder and neck. Area looks red measuring 4,1/2' and 2.1/2.' On dissection he found 3 pounds of fluid blood inside the peritonial and pelvic cavity and the liver was ruptured in two places, 1.1/2' in superior surface and 1,1/2' in its inferior surface, In his opinion the external injuries combined with the internal injuries were sufficient in the ordinary course to cause death.
4. The eye-witnesses to the occurrence are P. Ws. 1, 2, 3 and 5. P. W. 1, the son of the deceased said that when the latter came and intervened in the quarrel appellant No. 1 Bhaskar Mallik gave her a blow on her right side with a Killa Baunsa thenga (M. O. I) and appellant No. 2 Naran Mallik assaulted her with a Pitana (M. O. II). It was put to P. W. 1 in cross-examination that when he lodged the F.I.R. in the case he did not mention that appellant No. 2 Naran had assaulted the deceased. He asserted that he did, but P. W. 14 the Officer-in-charge of the Police Station, who recorded the F.I.R., stated that P. W. 1 did not state before him that appellant No. 2 had struck the deceased with a Pitana.
P. W. 2 stated in Court that when the deceased came to the spot, appellant No. 2 Naran assaulted her with a Pitana, but she caught hold of the Pitana and then appellant No. 1 Bhaskar struck her with a Bamboo thenga (M. O. I) and she fell down and died. His evidence tends to show that the blow which appellant No. 2 Naran aimed at the deceased did not strike her as she caught hold of the Pitana and the blow which actually struck her was given by appellant No. 1 with the bamboo thenga (M. O. I). P, W. 2 however stated that Naran assaulted the deceased with a Pidha (M. O. III) about which P. W. 1 had not spoken a word.
According to P. W. 3, Bhaskar assaulted her mother with the Pidha (M. O. III) and Naran with the Pitana (M. O. II). Apart from the fact that her evidence regarding the assault on the deceased is discrepant from what P. Ws. 1 and 2 have deposed on this point, it was suggested to her that she had stated before the police that she came to the spot after the assault was over. Although she denied the suggestion made to her, it was elicited from the I. O. (P. W. 15) that P. W. 3 had stated before him that she was in the kitchen and that on hearing the hulla she came to the place of occurrence after the death of her mother. It therefore appears to me that P. W. 3 has not seen the occurrence. The other eye-witness P. W. 5 says that on the night of occurrence on hearing the hulla he went to the spot and found that Bhaskar was armed with a Pitana (M. O. II) and Naran was armed with a Pidha (M. O. III), and they were assaulting Markand (P. W. 2).
Just then the deceased came to the spot whereupon the deceased was struck with the Pitana (M. O. II) by Bhaskar and she fell down dead, It is therefore clear from his evidence that appellant No. 2 Naran had not actually dealt any blow to the deceased. This is in conformity with the evidence of P. W. 2 and with what is stated in the F.I.R. lodged by P. W. 1 at the Police Station, P. Ws. 9 and 10 deposed that they were present at the place of occurrence and their evidence is that while the appellants on one side and the P. W. 1 on the other were pushing one another, Udia Bewa came to the spot and she fell down on stones and died.
According to P. W. 9 appellants Nos. 1 and 2 had nothing in their hands. It is surprising that neither P. W. 9 nor P. W. 10 was declared hostile by the prosecution and cross-examined, P. W. 15, the I. O. has stated categorically that the place of occurrence was an open threshing floor and he did not find any stones or wooden pegs fixed in the ground. The occurrence took place at 8 p. m. and the I, O. visited the spot at 6 a. m, next day, that is, after 10 hours. If there were any stones or pegs at the place of occurrence, the I, O. would not have failed to notice them or signs of their recent removal from the place of occurrence. Although the public prosecutor has grossly failed in his duty to declare P. Ws. 9 and 10 hostile and cross-examine them, yet having regard to the evidence on record and the other circumstances, I entirely agree with the view of the learned Sessions Judge that P. Ws. 9 and 10 have not spoken the truth.
5. The doctor (P. W. 12) has stated that the injuries which he found on the person of the deceased could be caused by hard and blunt weapons like M. Os. II and III. Here again the prosecution has failed to show M. O. I to the doctor and obtain his opinion whether the injuries on the deceased could be caused by M. O. I. But it is clear that if the injuries could be caused by M. Os. II and III, they could as well be caused by M. O. 1 which is also a hard and blunt weapon. It was elicited from the doctor that the injuries could also be caused by a fall against a hard substance and it is therefore argued on behalf of the appellants that the injuries; found on the person of the deceased might have been caused when she admittedly fell down on the ground.
It is clear from the post mortem report as also from the evidence of the doctor that the cause of death in this case is rupture of the liver and he stated that this rupture can be caused either by a blow or by a fall with force against a hard substance. There is no evidence that the deceased fell down on the ground with any force to cause rupture of the liver. If she had fallen with some amount of force on the ground one would expect other injuries on her body, which admittedly are not present, These circumstances establish beyond doubt that the rupture of the liver of the deceased was caused as a result of the blow with a hard and blunt substance and not by merely falling down on the ground.
6. I have already indicated that the evidence on record is not sufficient to establish that Naran, appellant No. 2 had dealt any blow on the deceased. The evidence of P. Ws. 1, 2 and 5 prove beyond any reasonable doubt that it is appellant. No. 1 Bhaskar who dealt the blow. According to P. Ws. 1 and 2, the appellant No. 1 dealt the blow with a bamboo thenga (M. O. I) while according to P.W. 5 appellant No. 2 dealt the blow with the Pitana (M. O. II). The slight discrepancy in the weapon used does not in my opinion affect the fact that it is appellant No. 1 who dealt the fatal blow to the deceased.
7. The last point for consideration is what offence the appellant No. 1 has committed. It is argued on behalf of the appellants that the act of the appellant No. 1 may at best constitute an offence under Section 324, Penal Code. I fail to see how this can be so. The deceased was 50 years old and when appellant No. 1 had dealt a blow with M. O. I on a vital part of her body he must be presumed to have had the knowledge that a blow given with the thenga M. O. I on that part of body is likely to cause death, although he might not have intended either to cause her death or to cause any injury which is likely to cause her death. In fact death has been caused in this case, In the circumstances I consider that the appellant No. 1 has been rightly convicted under Part II of Section 304, Penal Code. Having regard however to the circumstances of the case I feel that the sentence of R. I. for 5 years imposed on him by the learned Sessions Judge is rather severe and that the ends of justice would be sufficiently met if it is reduced to 3 years. So far as appellant No. 2 Naran is concerned, having regard to the circumstances already stated it must be held that the prosecution has failed to establish that he was in any way responsible for the death of the deceased.
8. In the result, this appeal is allowed in part, The conviction of appellant No. 2 Naran Mallik under Section 304, Part 2, Penal Code and the sentence of 5 years' R. I. imposed on him are set aside and I direct that he be set at liberty forthwith. The conviction of appellant No. 1 Bhaskar Mallik under Section 304, Part 2, Penal Code, is upheld, but the sentence on him is reduced to 3 years' R.I.