B.K. Behera, J.
1. The Criminal Appeal and the government Appeal arising out of the same judgment and order have been heard together and will be governed by this common judgment.
2. The convicted prisoner Bhabagrahi Mohanty has appealed against the order of conviction passed against him by the court of trial under Section 302 of I. P. C. (for short, 'the Code') sentencing him to undergo imprisonment for life and the State is in appeal against the order of acquittal recorded in respect of the co-accused Sudam alias Babaji Pradhan. The two accused persons stood charged under Section 302 read with Section 34 of the Code with having committed the murder of Muralidhar Sahu (to be described hereinafter as 'the deceased') in furtherance of their common intention by assaulting the deceased on his head with lathis some time before the evening of Sept. 7, 1980, at Kurtang in the district of Cuttack and the reason for this was said to be a sudden quarrel between the deceased on the one hand and the two accused persons on the other as the deceased had removed a blockage put by the two accused persons to prevent water flowing from the land of the deceased and in the course of the quarrel, the appellant Bhabagrahi had picked up a split bamboo from the fence nearby and the other co-accused Sudam took out a bamboo pole from the roof of a temple on the spot and dealt blows on the head of the deceased who was first taken to the Raghunathpur Public Health Centre where the doctor (P.W. 10) examined the deceased and also Harihar Sahu (P.W. 4), son of the deceased, who had sustained injuries also at the hands of the co-accused Sudam, as alleged by the prosecution, during the occurrence and P. W. 14 was the Assistant Professor in the Neuro Surgery Department of the S. C. B. Medical College Hospital at Cuttack who had conducted the operation and had removed the broken pieces of the frontal bone of the deceased who succumbed to the injuries. Another doctor (P.W. 9) had conducted the autopsy over the dead body. While the case of the prosecution was that death of the deceased was homicidal in nature, the defence wanted to make out that it had been caused by an accidental fall as a result of which the head of the deceased had hit the stoney place on the spot. To bring home the charges, reliance had been placed by the prosecution on the evidence of fourteen witnesses. No witness had been examined by the accused persons in their defence. The trial court held that the charge under Section 302 read with Section 34 of the Code had not been brought home to the accused persons. It also held that the charge under Section 323 of the Code against the co-accused Sudam had not been established. Accepting the case of the prosecution that the injuries sustained by the deceased on his head as a result of the assault by the appellant Bhabagrahi had resulted in his death and holding that the appellant Bhabagrahi had the intention of causing his death, the trial court found that this appellant was liable to be convicted under Section 302 of the Code and he was. accordingly convicted and sentenced as stated above.
3. Mr. B. K. Sahu, appearing on behalf of the appellant Bhabagrahi, has taken us through the relevant evidence and has submitted that the appellant Bhabagrahi could not be convicted under Section 302 of the Code and that the evidence led by the prosecution against him was unworthy of acceptance. The learned Standing Counsel has contended that there was no reason as to why the evidence of a large body of eye-witnesses should have been discarded by the learned Sessions Judge and it had correctly been concluded that the appellant assaulted on* the person of the deceased which resulted in his death. An initial attempt was made by the learned Standing Counsel to support the Government Appeal, but ultimately he contended that it could not be said on the evidence that the finding of acquittal in respect of the respondent in the Government Appeal could not have been recorded on the evidence on record. Mrs. Padhi has supported the order of acquittal recorded against the respondent in the Government Appeal.
4. The evidence of the three doctors, read as a whole, would show that death in the instant case could be homicidal or accidental in nature. There may be a number of hypothetical theories as to how an injury can be caused, but that theory which is in consonance with evidence on the record is to be accepted. A court is not concerned with academic exercise and theoritical possibilities, but with practical realities derived from the evidence led at the trial. Judged in the light of the evidence of the witnesses to the occurrrence coupled with the medical evidence, the reasonable conclusion would be that death in the instant case was homicidal in nature. The question for consideration would be as to whether the appellant Bhabagrahi and the other co-accused were the authors of the crimes for which they stood charged.
5. As regards the Government Appeal, we notice that for elaborate and good reasons which need not be repeated in this judgment, the trial court, keeping in view the facts that the case against the co-accused Sudam had been developed later at the stage of investigation, that some interpolations had been made in the medical requisitions to bolster up a case against this co-accused and that the medical evidence would indicate that the assault on the head of the deceased which had resulted in his death could be caused by dealing of one blow which, as had consistently been spoken to by the witnesses to the occurrence, had been given by the appellant Bhabagrahi, came to the conclusion that the case against the co-accused Sudam had not been made out in respect of either of the two charges. As has been submitted by the learned Counsel for both the sides, the findings recorded by the trial court in this regard cannot be said to be unreasonable. No interference is called for by this Court in the Government Appeal against the order of acquittal,
6. As regards the appellant Bhabagrahi, who stands convicted under Section 302 of the Code, we have been taken through the evidence of the witnesses to the occurrence who are P.Ws. 1 to 5 and 7, P.W. 1 in his evidence in the court as also in the first information report had implicated this appellant as the assailant of the deceased and had given evidence that by picking up a split bamboo from the spot, this appellant had dealt a blow on the head of the deceased. The other eye-witnesses had also spoken about it. A criticism has been levelled against their veracity on the ground that they had been examined by the investigating agency as late as on Sept, 10, 1980 although the first police officer had come to the scene of occurrence on 'Sept, 8, 1980. This criticism, however, would not affect the evidence of P.W. 1 who was the first informant nor that of P.W. 2 who had offered an explanation by saying that he could not be examined by the Investigating Officer on the 8th as he expressed that he was to come for an urgent work to Cuttack. P.W. 4 was the victim of assault and had injuries on his person. This would give an indication that he was present on the spot and that he could have witnessed the occurrence! There had been belated disclosure by the other witnesses to the occurrence as to what had taken place in the course of investigation and there was no reasonable explanation as to why there had been belated examination of these principal witnesses. In such circumstances, we are not prepared to place implicit reliance on the evidence of those witnesses.
7. P. W. 1 had testified that M. O. I. was the split bamboo with which the appellant Bhabagrahi had assaulted the deceased. The Grama Rakshi (P.W. 6) had removed this article on the day following the day of occurrence from the spot and had produced the same before the Assistant Sub-Inspector of Police who had seized it. This would be yet another circumstances supporting the evidence of P. W. 1 and that of the eye-witnesses. There could thus be no doubt from the evidence, as rightly held by the trial court, that the assault by means of M. O, I. on the head of the deceased by the appellant Bhabagrahi had resulted in his death,
8. It has been contended on behalf of this appellant that if the entire case of the prosecution against him is accepted with regard to the assault on the person of the deceased, he could be held liable under Section 304 Part II of the Code on the facts and in the circumstances of the case. T he learned S landing Counsel has fairly submitted that this contention raised on behalf of the appellant cannot be said to be without substance.
9. There had been no pre-plan to commit he murder of the deceased. A quarrel had ensued on the spot. T he appellant Bhabagrahi ad not gone to the spot armed. On the spur of the moment and in a fit of anger on the removal of the blockage by the deceased, he look out a split bamboo pole from near the pot and hit but once on the head of the deceased which unfortunately resulted in his death. No proposition can be laid down that when only one blow is given on the head, the case would not come within the purview of any of the four clauses of Section 300 of the Code which is punishable under Section 302 of the Code. It depends on the facts and circumstances of each case. Regard being had to what has been stated above and the circumstances in which he unfortunate assault had been made by the appellant Bhabagrahi on the deceased, the appellant could at best be attributed with the knowledge that by dealing one blow on the head of the deceased, he was likely to cause the death of the deceased. Nothing graver could be attributed to his act in the circumstances in which the act had been committed by the appellant and the situation in which he had been placed. In our view, the order of conviction passed against the appellant under Section 302 of the Code cannot be sustained for the aforesaid reasons and he is to be convicted under Section 304 Part II of the Code.
10. In the result, the Government Appeal is dismissed. The Criminal Appeal is allowed in part. The order of conviction and sentence passed against the appellant Bhabagrahi under Section 302 of the I. P. C. is set aside and in lieu thereof, he is convicted under Section 304 Part II of the I. P. C. and sentenced to undergo rigorous imprisonment for the period already undergone by him which, as has been submitted at the Bar, is for over four years which, in the circumstances of the case, would meet the ends of justice. The appellant Bhabagrahi, who is in custody, be set at liberty forthwith.
D.P. Mohapatra, J.
11. I agree.