B.K. Behera, J.
1. The appellant stands convicted under Section 302 of the Indian Penal Code (for short the 'Code') for having committed the murder of Mandangi Arjun (hereinafter referred to as the 'deceased') on March 8, 1980, in village Lenda in the district of Koraput, by hitting his head by a piece of stone (M. O. II.) and causing injuries which resulted in his death and sentenced to undergo imprisonment for life. The findings recorded by the trial Court that the deceased died a homicidal death and that the appellant had assaulted the deceased on his head by M. O. II, as deposed to by P. W. 2, the sole witness to the occurrence, have not been assailed. Mr. Swamy for the appellant has submitted that the case against the appellant would come under the purview of Section 304 part II of the Code and the sentence passed against him should be reduced to the period already undergone as the appellant has been in custody and has undergone imprisonment for over four and a half years.
2. The occurrence had taken place on the spur of the moment after a sudden quarrel between the appellant and the deceased over the distribution of jack fruits of a tree. The co-accused Palaka Durmaya, who also stood trial and was accquitted, intervened and at this, the deceased attempted to assault the co-accused by means of stick which was snatchel away by the co-accused who assaulted the deceased as a result of which he fell down. The appellant then assaulted the deceased on his head by means of a stone without any pre-plan of pre-meditation and his unfortunately resulted in his death. As has been submitted at the Bar, the appellant belongs to an aboriginal tribe and persons belonging to such tribes are easily inflammable by nature. In these circumstances, it cannot be said that the appellant had the intention of causing the death of the deceased. It would be reasonable to hold that the appellant had the knowledge that by his act, he was likely to cause the death of the deceased. The appellant is liable to be convicted under Section 304 Part II of the Code.
3. In the result, the appeal is allowed in part. The order of conviction and the sentence passed against the appellant under Section 302 of the Indian Penal Code are set aside and in lieu thereof, he is convicted under Section 304 Part II of the Indian Penal Code and sentenced thereunder to undergo imprisonment for the period already undergone by him. The appellant be set at liberty forthwith.
D.P. Mohapatra, J.
4. I agree.