In a case of culpable homicide not amounting to murder, the accused must have the knowledge that the injury is likely to cause death, but does not intend to cause death.

D. M. PATNAIK, J.

( 1 ) THE two appellants assail their conviction under Section 304, Part I read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for ten years each and to pay fine of rupees one hundred.

( 2 ) PROSECUTION case in short is, deceased Sundarmani Dehuri had encroached a piece of givernment land and was about to construct a house on it and had raised certain poles on the land. The land of the appellants adjoins this encroached land by the deceased. There was dispute between the deceased and the appellants over this issue. On 23-4-1984 at 6. 30 a. m. the deceased found that some poles had been removed from the site. The appellants came there. There was an altercation during which appellant Bhramara gave a lathi blow on the head of Sundarmani causing bleeding injury and his son appellant Narayan with a crow-bar assaulted the deceased causing injuries to both hands of Sundarmani. The occurrence took place in presence of P. W. 3, son of the deceased and P. Ws. 4 and 5 the two outsiders. The injured was removed to the hospital but died on the same day at 1. 30 p. m. The appellants have denied the prosecution allegation and pleaded that the allegation was the outcome of political rivalry between one Sadananda Kanhar, a political leader of the locality who was opposing to start a medicine shop by the appellants in the locality.

( 3 ) HEARD Mr. S. K. Mund, learned counsel for the appellants and Mr. G. K. Mohanty, learned counsel for the State. That the finding of the learned Sessions Judge that Sundarmani died a homicidal death was not assailed by Mr. Mund. To appreciate the case, it is necessary to mention the nature of the injuries received by the deceased. P. W. 1 is the Doctor who conducted the post-mortem examination. On the external examination, he found that there was one lacerated wound on the right side of the front of head above the hair line 1" x 0 x 1/2" with three nylon stitches. The rest four injuries were swellings with bruises on the left forearm, right-wrist and on both sides of the back. The length of these bruises varies from 2" to 6". The Doctor on dissection, internally found a haemotoma corresponding to external injury on the head and there was a transverse fracture of the frontal bone extending from the right temporal region crossing the midline of the fore-head. The membranes were torn along the fracture line of the scalp. There was subdural collection of blood in the cranial from the rupture of sagital sinus and the right frontal lobe of the brain. The brain under the wound was lacerated. The spleen was ruptured and there was blood in the peritonial cavity. The cause of death was due to subdural haemotoma on account of the fracture causing laceration of the brain. The rupture of the spleen also caused haemorrhage and this, according to the Doctor, also contributed the cause of death. The Doctor opined that the injuries to the skull as well as the rupture of the spleen were fatal and they were also individually sufficient in the ordinary course of nature to cause death.

( 4 ) THE opinion of the Doctor that the injury to the spleen also contributed to the cause of death cannot be accepted in the absence of any positive evidence. P. W. 3 the son of the deceaed, stated that it was appellant Narayan who gave a blow with the crow-bar on the left hand and the second blow on the right hand of the deceased and it was only appellant Bhramara who had given one blow with the lathi on the head of the deceased. He did not state that any of the appellants to have assaulted the deceased on his abdomen. P. W. 2 at the first instance examined the deceased also did not state anything about the external injury on the abdomen though he stated in his evidence to have noticed the other injuries already mentioned. To add to this, P. W. 2 stated to have noticed a scar mark on the upper abdomen of the deceased suggesting prior operation. P. W. 3 admitted in his cross-examination that five y