The court ruled that a single unintentional blow during a provoked quarrel constituted grievous hurt under Section 325 IPC rather than murder, emphasizing the necessity of intent for a higher charge.

Judgment :

S.S. Mishra, J.

The present Criminal Appeal is directed against the judgment and order dated 24^th August, 1999, passed by the learned Additional District and Sessions Judge, Nayagarh, in S.T. Case No.128/86 of 1997 arising out of G.R. Case No. 414/96, convicting the appellant under Section 325 of the INDIAN PENAL CODE and sentencing him to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/-, in default to undergo further rigorous imprisonment for one year. The learned trial Court also directed that the fine amount, if realized, be paid to the widow of the deceased as compensation.

2. Heard Mrs. Sartika Das, learned counsel for the appellant and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State.

3. The prosecution case, in brief, is that on 28.09.1996 at about 8 P.M. in village Bilamanapur under Odagaon Police Station, there was a quarrel between the appellant accused Jogendra Jena and one Rabindra Rout (P.W.1), the son of the deceased Banambar Rout. Initially, according to the FIR (Ext.1) lodged by Duryodhan Rout (P.W.2), the quarrel arose when P.W.1 and one Kalucharan Rout were playfully throwing sand on each other near their house, and some of it accidentally fell on the accused, who was sleeping nearby. The accused, being annoyed, slapped P.W.1 twice. Hearing the cries of P.W.1, his father Banambar (the deceased) and brother Santosh (P.W.4) came to the spot, whereupon a further altercation ensued, resulting in the accused dealing a lathi (Katua Thenga) blow on the chest of Banambar Rout. The deceased fell down unconscious and succumbed to his injuries while being taken to Odagaon for treatment.

4. During the trial, however, the prosecution witnesses slightly modified the genesis of the occurrence, stating that the dispute arose not due to throwing of sand, but because the accused, when not allowed to join a card game being played by P.W.1 and others, became enraged and slapped P.W.1. When the deceased came out to question the accused, the latter dealt a blow on his chest with a wooden stick (Katua Thenga).

5. On the oral report of P.W.2, A.S.I. Arjun Tripathy (P.W.11) registered Odagaon P.S. Case No.89 dated 29.09.1996 under Section 302 IPC and took up investigation. Subsequently, the charge of investigation was handed over to P.W.10, the Circle Inspector, who completed the investigation and submitted charge-sheet against the accused.

6. The plea of the accused was one of complete denial. Rather the stance was that the deceased accidentally fell upon a wooden peg fixed in the ground for tying cattle and sustained injuries, leading to his death. No defence evidence was adduced.

7. The learned trial Court, upon consideration of the evidence of eleven prosecution witnesses, held that the prosecution had failed to prove intention on the part of the accused to commit murder. However, as the post-mortem report revealed fracture of the 9th and 10th ribs and congestion of the spleen, the learned Court concluded that the accused had voluntarily caused grievous hurt to the deceased by a blunt weapon, which resulted in death. Relying upon the decision in Lokanath Behera v. State of Orissa , reported in 57 (1984) C.L.T. 312, the trial Court convicted the accused for the commission of offence under Section 325 IPC and imposed the sentence. The relevant portion of the aforesaid judgment is extracted herein below for the sake of convenience:-

“13. It was argued by the learned Defence counsel that as per the prosecution case, there was a sudden quarrel between the accused and P.W.1 and the deceased intervened in the matter. The assault was made by a piece of wood (Katua) on the chest. If there would have been any intention to commit murder,