IMPORTANT POINT
Accused cannot be convicted u/s 302 in absence of intention to murder.

JUDGMENT

L. NAGESWARA RAO, J

1. Dev Kumar Sahu (PW-6) lodged a First Information Report at 8.10 a.m. on 11th November, 2005. As per the FIR, the Appellant was running a kirana shop in Basantpur village. The informant and his brothers were also residing in the same village. There was a scuffle between the Appellant and Krishna Kumar Sahu (PW-3) on 10th November, 2005 regarding non-payment of an amount of Rs.130 by Krishna Kumar Sahu to the Appellant towards purchase of some material from the shop. The Appellant and his son Virendra Sahu assaulted Krishna Kumar Sahu (PW-3) later in the evening. On the next day i.e. 11th November, 2005, PW-6 and his brother Ram Kumar Sahu (Deceased) went towards the Nala side for answering the call of nature. The Appellant hit Ram Kumar Sahu on his head with a tangi near the field of Komal Singh. The sharp side of the tangi pierced the head of Ram Kumar Sahu who fell down. PW-6 threw a stick that hit the hand of the Appellant when he started running away. The tangi fell down from the hand of the Appellant. Ram Kumar Sahu was admitted in the District hospital. The tangi was produced at the police station. PW-6 stated that Preetam Lal Sahu (PW-8) also witnessed the incident. Ram Kumar Sahu was referred to CIMS, Bilaspur where he was admitted. However he died in the hospital during the course of treatment. A report for an offence under Section 307 IPC was initially registered in the Police Station– Janjgir and after the death of Ram Kumar Sahu, the offence was converted to Section 302 IPC. The bloodstained soil was seized and a spot map was prepared. The clothes of the deceased were also seized. The tangi was seized at the instance of Dev Kumar Sahu (PW-6). A spot map was prepared by the Patwari and the seized property was sent for chemical examination. The Accused was charged under Section 302 IPC for the offence of murder.

2. The trial Court convicted the Appellant under Section 302 IPC and sentenced him to imprisonment for life and also to pay a fine of Rs.5000/-. The High Court dismissed the appeal filed by the Appellant against the conviction and sentence awarded by the trial Court. Aggrieved, the above Appeal is filed before this Court.

3. The Appellant’s case in defense is that on 11th November, 2005 at 6.30 a.m. he went to the Nala to answer call of nature with gudakhu and toothbrush. Ram Kumar Sahu (Deceased), Krishna Kumar Sahu (PW-3), Dev Kumar Sahu (PW-6) and Shail Kumar (PW-9) were standing near the fields of Komal Singh. PW-3 was holding a tangi and others were armed with lathis. The Appellant was afraid seeing them armed and pleaded that he should not be attacked. However, they started assaulting him from the back side. Krishna Kumar Sahu (PW-3) assaulted the Appellant with a tangi on his head. The Appellant tried to protect himself by raising his hands but the tangi hit his hand and head. In the scuffle, the tangi came to his hands and when he realized that he was going to be killed, he swung the tangi in his defense which hit the Ram Kumar Sahu(deceased) on his head. Thereafter, the tangi fell down from his hand and he became unconscious. He became conscious at 7.30 a.m. and he sent his son to report the matter in the police station. He was admitted in a local hospital and later taken to CMIS, Bilaspur for treatment. In the course of the treatment, he spent eight days in the hospital. He was admitted in the hospital for treatment and discharged after eight days.

4. Dr. Hulesh Mandley (PW-19), who conducted the postmortem examination at 3.35 p.m. on 11th November, 2005, deposed that there was a lacerated wound on the centre part of the front head side which was 6.2 cms. in length and 1 cm. in width. According to him, the injury was caused by a sharp-edged weapon. There is sufficient evidence on record to show that there was a fight between the Deceased and his brothers on one side and the Accused on the other. The oral evidence which is in conformity with the medical evidence would s