B.K. Behera, J.
1. Upon hearing the learned counsel for the appellant and the learned Additional Standing Counsel and after perusing the record, we would accept the finding recorded by the learned Sessions Judge based on the evidence of the doctor (P. W. 1), who had conducted the autopsy of the deceased Pongasa kondh. that death was homicidal in nature and as has fairly been submitted by the learned counsel for the appellant, the learned trial Judge had riguty accepted the evidence of Benja Kandha (P. W. 6). Ranjt Kandhuni (P. W. 7) and Hinjamalu Kandhuni (P. W. 8), the brother, daughter and widow respectively of the deceased- P. W. 7 being the wife of the appellant- to the effect that or. July 16, 1979, after these witnesses, the deceased and the appellant took their food together in the farm house of the deceased at Dabarkona and then the appellant wanted to bring back his wife, who intended to stay for a day more and the deceased did not want to leave his daughter, the appellant dragged his wife and the deceased dealt two slaps to the appellant, whereupon the appellant dealt a number of kicks on the chest of the deceased which ultimately proved fatal, although we are not prepared to place reliance on that part of the prosecution story accepted by the trial court that the appellant also, by means of a lathi (M. O. I.), assaulted the deceased on his head, which would be negatived by the evidence of the doctor who had noticed no injury on his head and of this, no due notice had been taken by the trial court. The injuries noticed by another doctor (P. W. 2) on the persons of the appellant and P. W. 7 and 8 would lend assurance to the case of the prosecution that they were present on the spot and the appellant had received injuries during the tussle and P. W. 7 and 8 had sustained injurie's as a result of their intervention.
2. The important question is as to whether the order of conviction recorded under section 302 of the Indian. Penal Code setencing the appellant to undergo imprisonment for life can be sustained in law or the appellant can legally be convicted under section 304 Part II, as contended by Mr. Mohanty for the appellant. Belonging as the appellant does to an interior and undeveloped area in the district of Koraput and to a scheduled tribe and as persons belonging to such community are generally inflammable by nature, as the appellant's conduct and that of the deceased on the scene of occurrence would indicate, it could not be said, in the circumstances of the case, that the appellant had the intention to cause the death of his father-in-law or to cause the injuries, which, as the medical evidence would show, had resulted from violent kicks, on the chest causing fractures of the ribs and rupture of the spleen and kidney and were sufficient in the ordinary course of nature to cause death. (After a sudden quarrel and' on the spur of the moment and being incensed by utter anger at the refusal of the deceased to leave his daughter with the appellant on that day and after the deceased dealt slaps to him when he dragged his wife, the appellant did not use any dangerous instrument, but dealt some kicks on the chest of the deceased which proved fatal. The appellant could be attributed with the knowledge that by dealing violent kicks on a vulnerable part of the deceased, be was likely to cause his-death. The offence, in our view, would he covered by the second part of section 304 of the Indian Panal Code.) In this connection, reference may be made to the principles laid down by the Supreme Court in AIR 1982 Supreme Court 126 Kulwant Rai v. State of Punjab, AIR 1982 Supreme Court 690 Suba. Singh v. State of Punjab, AIR 1982 Supreme Court 1466 : 1982 Supreme Court Cases (Criminal) 680 Gurmail Singh and Ors. v. State of Punjab, AIR 1983 Supreme Court 185 Hari Ram v. State of Haryana, AIR 1983 Supreme Court 284 Jawaher Lal and another v. State of Punjab and AIR 1983 Supreme Court 529 : 1983 Criminal Appeal Reporter 1 Sarabjeet Singh and Ors. v. State of U. P.
3. In the result, therefore, we would allow the appeal in part and set aside the order of conviction and sentence passsd against the appellant under section 302 of the Indian Penal Code and in lieu thereof, we convict him under section 304 Part II of the Indian Penal Code and sentence him to undergo rigorous imprisonment for the period already undergone by him which, as we see, is more than four years and would meet the ends of justice. The appellant be set at liberty forth with.
G.B. Patnaik, J.
4. I agree.