B.K. Behera, J.
1. The appellant stands convicted under Section 302 of the Indian Penal Code, for having committed the murder of Sama Dora ( hereinafter described as 'the deceased' ) by dealing an axe-blow on his head on February 12, 1979 at village Chalanpada in the district of Koraput. The order of conviction has been based on the evidence of the two witnesses to the occurrence, namely, P. Ws. 2 and 3.
2. It is not disputed at the Bar that the appellant's act had resulted in the death of the deceased. Mr. Routray has submitted on behalf of the appellant that the appellant had the right of private defence of the person of the co-accused Sania Dora at whom the deceased had shot an arrow. The appellant had not pleaded the right of private defence in his statement before the trial Court. Such a plea can, however, be sustained if it is spelt out of the prosecution evidence. As has been submitted by Mr. Rath for the State, there are no materials to indicate that at the time the fatal assault was made .by the appellant on the deceased, the appellant could have reasonable apprehension in his mind that death of or grievous hurt to the co-accused or such harm to him ( appellant) owing to the attack of the deceased would be the consequence. We would, therefore, negative this contention.
3. Mr. Routray has contended that on the evidence on record the appellant could be convicted under the second part of section of the Indian Penal Code although the medical evidence would show that the injury was sufficient in the ordinary course of nature to cause death. Mr. Rath has fairly submitted that this contention is sound and we are of the view that this is acceptable. There had been a sudden quarrel between the wife of the deceased on one hand and the appellant on the other in the course of which the co-accused had shot arrows at the deceased and his wife (P. W. 2 ) and the deceased has shot an arrow at the co-accused Sania Dora. On the spur of the moment, without premeditation and being incensed by anger, the appellant, belonging to an aboriginal tribe, dealt but one blow which landed on the head of the deceased who survived for some time and then succumbed to the injury. It would appear to us that the appellant had the knowledge that by his act, he was likely to cause the death of the deceased, but that he had no intention to cause death nor the intention to cause such bodily injury as was likely to cause death. The order of conviction of the appellant under Section 302 of the Indian Penal Code cannot be sustained. He is liable to be convicted as has been submitted on his behalf.
4. We have been told at the Bar that the appellant has been in custody and has undergone imprisonment for more than five years.
In our view, the period of imprisonment already undergone would meet the ends of justice. 5. The appeal is allowed in part. The order of conviction and sentence passed against the appellant under Section 302 of the Indian Penal Code is set aside and in lieu thereof, he is convicted under Section 304-Part II of the Indian Penal Code and sentenced thereunder to undergo rigorous imprisonment for the period already undergone by him. The appellant to set at liberty forthwith.
G.B. Patnaik, J.
5. I agree