B.K. Behera, J.
1. Poverty in a tribal household has resulted in an unfortunate incident of the eldest of the four brothers killing the youngest brother after a quarrel over two door-leaves on Nov. 20, 1978. The appellant, it was alleged, and his brother Bhima (hereinafter referred to as 'the deceased') had a quarrel on a festive day, when the tribal people were enjoying life after taking Haudia, over the demand of the deceased for the door-leaves. The appellant gave out that the door-leaves would be divided into four pieces so that each of the four brothers would get a share. Spying so, he brought out the two door-leaves (M.O.II and III) and threw them away.
The appellant then asked his sister (P.W.2) w bring an axe, but P.W.2 did not comply with this request. The appellant then brought out a sharp cutting instrument described as Kati by P.W.2 and Katuri by the other two eye-witnesses (P.Ws.3 and 4) from inside his house and gave out that he would cut bamboos and prepare the door leaves. He then dealt a blow by means of the instrument he was holding on the neck of the deceased which resulted in his instantaneous death. Accepting the evidence of P. Ws.2 to 4, the witnesses to the occurrence and rejecting the evidence with regard to the extra-judicial confession said to have been made by the appellant before the Grama Rakshi (P.W.6) as inadmissible in evidence being a confessional statement made to a police officer and the evidence of P.W.5 also with regard to an extra-judicial confession said to have been made by the appellant before him as unacceptable, the learned Sessions Judge observed that the evidence of P. Ws.2 to 4 had found assurance from the evidence of the doctor (P.W.1) who had conducted the autopsy and had noticed two cut injuries on the neck of the deceased causing several internal injuries which could be caused by one stroke with a sharp cutting instrument and the recovery of the Katuri (M.O.I.) from inside an Amari bush consequent upon a statement said to have been made by the appellant and held that the charge against him under Section 302 of the Penal Code (for short, 'the Code') had been established. The appellant was accordingly convicted and sentenced to undergo imprisonment for life.
2. We have heard the learned Counsel for both the sides. P.Ws.2 to 4 had figured as witnesses to the occurrence. P.W.2, the sister of the appellant and the deceased, P.W.3, widow of the deceased and P.W.4, the brother of the appellant and the deceased, had clearly and categorically testified that the appellant, by means of a cutting instrument, dealt a blow on the neck of the deceased which resulted in his instantaneous death. We have been taken through their evidence and we see no infirmity therein. On a careful consideration of the evidence of these three witnesses, the learned Sessions Judge has accepted their evidence and has held that it was worthy of acceptance. We see no justifiable reason to take a different view. The evidence of these three witnesses did find support in that of the doctor (P.W. 1).
3. It was in evidence that consequent upon the statement made by the appellant, M.O.I. was recovered from inside an Amari bush in the course of investigation and was seized. While P.W.3 had testified that M.O.I. was the weapon of attack, P.Ws.2 and 4 had asserted that it was not. In this state of evidence, it would not be safe and proper to unreservedly accept the evidence of P.W.3 and not that of P. Ws.2 and 4 and hold that the appellant had killed his brother by means of M.O.I. Even assuming, however, that M.O.I. was not the weapon of attack, it would not be of any consequence and would not affect the evidence of P. Ws.2 to 4. It is not necessary in every case that the weapon of attack must have to be recovered in a case of murder and non-recovery of the weapon of attack would not affect the other evidence if found to be reliable and acceptable.
4. We are at one with the learned Sessions Judge that the appellant had killed the deceased by a sharp cutting Instrument after a quarrel over the door-leaves and the appellant's plea of denial had rightly been rejected.
5. The next question would be as to the nature of the offence committed by the appellant. Mr. Nayak, appearing for the appellant, has submitted before us that the appellant had no intention of causing the death of his brother and that the case would not come within the purview of Section 300 which would be punishable under Section 302 of the Code. Mr. Panigrahi, the learned Additional Government Advocate, has submitted and in our view, very fairly so, that the case would come within the purview of Section 304, Part I and not Part II of the Code.
6. When injuries have been followed by I death and the question is what offence has been committed, it is not to be concluded by any backward reasoning as to the presumable intention from the mere fact that the injuries did, in fact, result in death. Intention is proved by or inferred from the act of the accused and the circumstances of the case. The existence of intention is not to be inferred unless it follows as a natural and probable consequence from the act.
7. Even as found by the learned Sessions Judge while passing the sentence, the appellant, a middle-aged person belonging to a tribal community, had killed his brother in a fit of anger and there had been no pre-meditation on his part. The cause of the killing of one brother by another was a petty and sudden quarrel over the door-leaves owing evidently to poverty and the appellant had been enraged on the demand of the deceased for the door-leaves. The appellant had brought out a cutting instrument from inside his house saying that he would cut some bamboos from the bamboo clump which was nearby and prepare the door-leaves. On seeing the deceased nearby, on the spur of the moment in a fit of anger and without any plan or pre-mediatation, he dealt but one stroke on the neck of the deceased which caused internal injuries resulting in his death,
8. It would not be appropriate, in our view, to say that the appellant's act would come under any of the four Clauses of Section 300 of the Code. By dealing a fatal stroke on a vital portion by means of a cutting instrument, it could reasonably be said that the appellant had the intention of causing such bodily injury as was likely to cause the death of the deceased which would come under the purview of Section 304, Part I of the Code. Even assuming that the appellant did have the intention of causing the death of the deceased, in the absence of evidence and circumstances which would bring the case within any of the four Clauses of Section 300 of the Code, the case would still be covered by Section 304, Part I of the Code.
9. For the reasons aforesaid, we find that the order of conviction recorded against the appellant under Section 302 of the Code cannot be sustained in law and the appellant is liable to be convicted under Section 304, Part I of the Code.
10. In the result, the appeal is allowed in part. The order of conviction recorded against the appellant under Section 302 of the Penal Code and the sentence passed against him thereunder are set aside and in lieu thereof, he is convicted under Section 304, Part I of the Penal Code and sentenced thereunder to undergo rigorous imprisonment for a period of seven years which, in our view, would meet the ends of justice.
D.P. Mohapatra, J.
11. I agree.