IMPORTANT POINT
Where accused committed murder of his younger brother by inflicting cut injuries on his neck by lathi but in a sudden family quarrel and prosecution version itself provided credence to plea of sudden provocation on spur of moment, conviction was to be recorded under Section 304 Part II IPC and not under Section 302 IPC.

ORDER

The appellant though acquitted by the learned sessions judge, Dakshina Kannada, Mangalore in sessions case No. 54 of 1990 of the charge for the offence punishable under section 302 of the Indian Penal Code for having fatally assaulted his younger brother John D Souza with a kathi on his neck at 8.15 a.m. on 26-4-1990 near the store room inside their house had to come to this Court in view of the reversal of the order of acquittal by the High Court of Karnataka in criminal appeal No. 671 of 1996 and as a consequence being convicted under section 302 IPC and sentenced to undergo life imprisonment.

2. Shorn of all greater details the sum and substance of the matter as reflected from the evidence on record is that the appellant with his wife, his father, mother, youngest sister and the two brothers Ronald and the deceased John were living in the same house, that the appellant being the eldest was entrusted by the father with the management of the agricultural land and the household, that in course of such administration misunderstandings appears to have surfaced leading to some extent of grouse resulting even in litigation before a civil court and as such one or the other seem to be arrayed against every one else in their dealings with the other. As misfortune would have it, on the fateful day the trouble seems to have triggered with both the groups putting a lock of their own one by the father and the deceased and the other by the appellant on the store room whether the substantial number of coconuts, plucked from the garden, were stored. In the altercation which was said to have followed because both sides actually started challenging the right of the other to lock the store room and tried to break the lock of the other a tussle ensued between the victim and the appellant resulting in physical manhandling and in the process the appellant was said to have wielded kathi by inflicting cuts on the neck of the deceased. The defence story with reference to the actual occurrence among other details of his case was found disclosed in a lengthy written statement filed by the appellant under section 233(2) read with section 313 of the Code of Criminal Procedure and it could be seen from the same that though the salient features of what has been said above has been broadly and generally accepted, so far as the actual injury caused to the deceased is concerned it was the case of the appellant that Bonaventure Roche - the brother-in-law of both took up the kathi and threw it at them when the deceased and the appellant were grappling with each other and the kathi fell on the deceased causing injury in the result.

3. Before the trial court the prosecution had examined PWs 1 to 15, in addition to marking exhibits P-1 to P-29 and MOs 1 to 15. The appellant also got DWs 1 to 7 examined on his behalf, in addition to marking exhibits 1 to 12. After considering the material on record the learned trial judge carried away by some of the discrepancies or additions and inconsistencies noticed by him in the evidence thought fit to reject the evidence of PWs 1 and 2 the sister and the mother respectively of the appellant and the deceased. The trial court also drew support for its conclusion to discard the evidence of PWs 1 and 2 from the non-examination of the father who also was said to have been present on the spot at that time. Ultimately, the trial judge, keeping in view, also the admitted misunderstandings between the parties had returned a verdict of acquittal on the view that the real story has not been brought properly before the court.

4. When the matter was taken up before the High Court in appeal the learned judges of the division bench adverted to the entire material on record at length and after adverting to the main reasons which weighed with the trial court to acquit the appellant and dispelling the same by pointing out the serious infirmities and grave errors in the approach of the trial court found that there was no justifiable or re