JUDGMENT
A.S. Naidu, J.
1. The appellant has been convicted under Section 302 of the Indian Penal Code, (in short, ‘the Code’) and sentenced to suffer imprisonment for life for having committed murder of his elder brother Subal Rana (hereinafter referred to as “deceased”).
2. The case of the prosecution as emerges from the F.I.R. and the evidence on record is as follows :
The deceased Subal Rana and the accused Madhu Rana are two brothers. They were residing with their parents in the same mess. On 1-5-1994 in the evening when the deceased the accused and his wife and their parents were sitting in the courtyard and discussing about the family affairs, there was an altercation between the two brothers. During altercation, the accused flared up and suddenly picked up a Merah (wooden stick) and dealt blows on the head of the deceased, who on account of such assault fell down on the floor. The accused ran away from the place. On the way, he met the Gramarakhi of the village. On being questioned he told the Gramarakhi that as his brother misbehaved with his wife and picked up quarrel with him, he gave blows on his head. He also requested the Gramarakhi to go to his house and see that his wife is not ill-treated.
3. The parents called the Homeopathic doctor to attend to the deceased and to give first aid. The Doctor advised the parents to remove the injured to the District Headquarters Hospital, Bolangir. The parents carried the deceased in a jeep to Bolangir and admitted him as an indoor patient in the District Headquarters Hospital. On the following, day i.e. on 2-5-1994 at about 11.15 a.m. Subala succumbed,
4. The information lodged by Gramarakhi on 2-5-1994 was treated as an F.I.R. and the case under Section 302, I. P. C. was initiated.
5. The plea of the appellant was one of denial.
6. The prosecution in order to establish its case examined as many as 10 witnesses and the defence in order to prove its innocence examined one witness.
7. P. w. 1 is the Gramarakhi and informant, who lodged F.I.R.. P. w. 2 is the wife of the deceased and the eye witness to the alleged assault. P. w. 3 is the Homeopathic doctor, on whose advice Subal was shifted to the District Headquarters Hospital, Bolangir, p. w. 4 is the father of the deceased, p. w. 5 is the seizure witness. P. w. 6 is the Doctor, who conducted post mortem examination on the dead body. P. ws. 7, 8 and 10 are the three police personnel. P. w. 9 is another doctor of Bolangir District Headquarters Hospital, who intimated the O.I.C. about the death of the injured.
8. It is not disputed that the deceased is the elder brother of the accused – appellant. The evidence of p. w. 6, the doctor who conducted post mortem, clearly reveals that there were only three external injuries on the dead body. All the three injuries were bruises on the left side of parietal region. On dissection, the layer of the scalp was found to have extensive area of hemorrhage with injection of blood and clots. There was depressed fracture on the frontal bone near the vertex slightly towards the left side mid line of the size of 3′ X 2 1/2′ with liner extension involving temporal bones of both sides extending towards the ears of both sides. According to the doctor all the injuries were ante mortem and might have been caused by hard and blunt weapon. The cause of the death was shock and hemorrhage following the injuries to the vital organ like brain. The doctor further opined that the injuries were sufficient in ordinary course of nature to cause death. Thus, taking into consideration the evidence of the doctor, it can be safely concluded that the deceased had a homicidal death.
9. The next question is whether the appellant caused the death of his elder brother. Out of the witnesses examined, the father p. w. 4, though claimed to be an eye witness did not support the prosecution case. P. w. 3, the Homeopathic doctor is a post occurrence witness. P. w. 5 is the seizure witness. P. ws. 6 and 9 are the two doctors and p. ws. 7, 8 and 10 are the three police officers. All the above witnesses ate formal witnesses and had no first-hand knowledge about the incident as well as the
assault, so also the Gramarakhi, p.w. 1 whose information is based on hearsay. P. w. 8, the I. O. though stated that the accused while in custody gave recovery of M. O. I. the weapon of offence and the same was seized vide seizure list marked Ext. III. P.w. 5, the witness to the seizure did not support the same. Be that as it may, the mandatory provisions of Section 27 of the Evidence Act having not been followed, the statement of the I. O. that the accused led to discovery cannot be accepted in evidence. Thus, out of 10 witnesses, only p. w. 2, the wife of the deceased deposed in Court regarding the assault made by the accused on the head of her husband. Though there are certain discrepancies in her evidence, the same are not vital so far as the assault is concerned. The evidence of p. w. 2 cannot be discarded in toto and the same is quite reliable. There is absolutely no reason as to why the evidence, of p. w. 2 should not be accepted. In the circumstances, we accept the evidence of p. w. 2 and agree with the learned trial court and hold that the death occurred due to the assault made by the appellant on the head of the deceased. Thus, we conclude that the death of the deceased was homicidal in nature and the appellant is the author of the crime.
10. The next question which needs to be examined is as to whether the conviction and sentence under Section 302, I.P.C. arrived at by the learned Sessions Judge can be sustained in the facts and circumstances of the case. The story narrated in the F. I. R. as well as the facts emerged from the evidence clearly reveal that the appellant in a spur of the moment being enraged either by the misbehavior by his elder brother on his wife and/or altercation arising out of domestic problem was provoked and out of heat and passion without realising the consequence picked up the strick which was lying on the ground and gave blows on the head of the deceased. The prosecution has totally failed to prove or lead any evidence of premeditation. Admittedly, the appellant belong to aboriginal tribe and is inflammable by nature. In a decision reported in 1985(4) O.L.R. 271 Madangi Samuru v. State, a Division Bench of this Court observed that persons belonging to the tribes are easily inflammable by nature. It is
also settled that no abstract standard of reasonableness can be laid down regarding the conduct of a man inasmuch as the action of an individual depends upon certain circumstances, customs, manner, way of life, traditional values, etc. as has been observed by the Supreme Court in the case of K.M. Nanavati v. State of Maharashtra (A. I. R. 1962 S. C. 605). For better appreciation, the relevant portion of the aforesaid decision is quoted herein below :
“Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation ? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc. in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision; it is for the court to decided in each case, having regard to the relevant circumstances.”
11. In the present case, admittedly, the appellant belongs to Scheduled Tribe. He is an illiterate rustic man and acted in a spur of the moment being enranged by the behaviour of his elder brother towards his wife as well as altercations arising out of family affairs. The evidence would further clearly reveal that the appellant never intended to cause death of his elder brother nor had he any premeditation. In view of the fact that the incident triggered off as a result of a petty quarrel and taking into account the prevailing circumstances as well as the appellant’s preceding and subsequent conduct, we are inclined to hold that the appellant did not intend to cause death of his elder brother. The offence committed by the appellant, is therefore, amounts to culpable homicide not amounting to murder punishable under Section 304, Part-I, I.P.C. As a consequence, while acquitting the appellant from the charge under Section 302, I. P. C., we hold him guilty under
Section 304, Part-I, I. P. C. and convict him thereunder. Admittedly, the appellant is in custody since 1995 and has already undergone imprisonment for a period of six years. Ends of justice would be met if the sentence is converted to the period of imprisonment undergone by the appellant.
12. In the result, the conviction of the appellant under Section 302, I. P. C. and the sentence imposed thereunder is set aside. Instead, the appellant is convicted under Section 304, Part-I, I. P. C. and sentenced to the imprisonment already undergone by him.
The appeal is accordingly allowed in part.
P. Ray, J.
13. I agree.
14. Appeal partly allowed.