JUDGMENT

I. M. QUDDUSI, J. : This appeal has been filed by the State against the impugned judgment and order dated 30.7.1987 passed by the Sessions Judge, Mayurbhanj, Baripada in Sessions Trial No.95 of 1985 convicting the respondent under Section 304 Part-I I.P.C. and sentencing him to five years’ R.I. No. appeal has been pre¬ferred by the respondent accused against the said order of his conviction. Although, no appeal has been preferred by the respon¬dent (accused), during hearing of the appeal and scanning of the evidence on record we have also considered that aspect carefully.

2. Though charge was framed against the respondent for the offence punishable under Section 302 I.P.C., the learned Sessions Judge by the impugned judgment and order convicted him under Section 304 Part-I of the I.P.C. on the ground that the accused suddenly got angry and in that state of mind dealt blows on the person of the deceased with a sharp cutting weapon which caused at least three fatal injuries of lengths varying from 10" - 12" on the vital parts and that such action of the accused would lead to the inference that he intended to cause such injuries which were likely to cause death and accordingly he found the accused guilty of offence punishable under Section 304 Part-I, I.P.C.

3. We have heard the learned Addl.Government Advocate for the State-appellant and Sri Ranjan Kumar Rana for the respondent.

4. The brief facts of the case are that on 3.5.1986 at 9 A.M. the deceased was ploughing his “Jagirdahi” land along with the informant (P.W.1), who is the youngest son of his brother and was adopted by him as his son. The respondent-accused and first informant are the real brothers and their father was the real brother of the deceased. The deceased had no son and only one daughter who is married. The first informant PW-1, Debra Mahakud was living with him as his adopted son to look after him. The deceased and the father of the accused-respondent were living separately and possessing lands separately and the “Jagirdahi” land was partitioned between them.

5. When the deceased and the first informant-PW-1 were so ploughing the “Jagirdahi” land, the respondent-accused came armed with a ‘Bala’ in his hand and asked the deceased as to whose land he was ploughing and the deceased replied that he was ploughing his own land. At this, the respondent got angry and hit the deceased with the ‘Bala’ repeatedly on the vital parts of his body, i.e., neck and head, as a result of which the deceased fell down and died on the spot shortly. Thereafter, the P.W.1 ran away and informed the wife of the deceased (P.W.2) about the incident, and wife of the deceased went to the Ward Member and intimated him about the unfortunate occurrence. On the same day, at about 2.30 P.M. P.W.1 lodged F.I.R. before the Police at his village. Police registered case and took up investigation and during investigation police seized the ‘gamuchhas’ (napkins) worn by the respondent and the deceased and also seized the ‘Bala’ used in the assault of the deceased at the instance of the respondent and the same were sent for examination to the chemical examiner at S.F.S.L., Rasulgarh Bhubaneswar. The Medical Officer, Bibhuti Bhusan Mahanta, (P.W.5) conducted post mortem examination over the dead body of the deceased and prepared his report. On comple¬tion of investigation, charge sheet was submitted against the accused.

6. According to the report of the Director and Chemical Examiner of the State Forensic Laboratory the extract of the blood found on ‘Bala’, earth and two napkins (gamuchhas) one worn by the deceased and the other by the respondent at the time of incident to have contained blood stains of human origin of ‘B’ group and they tallied with each other.

7. According to post mortem report, the Doctor conducting autopsy found the following ante mortem external injuries :-

1. Incised wound behind he neck nearly 12" long extending from the left cheek to right temporal region cutting the se