Intention in causing harm must be assessed in light of relationships and circumstances, leading to a modification of conviction from S.302 to S.304 Part II IPC.

1. The present appeal arises from judgment dated 17.11.2000 passed by the Additional Sessions Judge, Mungeli in Sessions Trial No.328/1999. The Appellant stands convicted under S.302 IPC to life imprisonment with fine of Rs. 1,000/-, in the event of failure to pay which, he was required to undergo six months further rigorous imprisonment.

2. In an occurrence on 22.6.1999 at about 11.45 a.m, in the common courtyard of the Appellant and the deceased Manohar who was his own brother, the First Information Report, Exhibit P - 2 was lodged by the Kotwar Budhram Das, PW - 1 stating that the Appellant came to him and informed that in a dispute between him and his brother with regard to construction of a drain in the common courtyard, he had assaulted the deceased who had died. The witness went to his house. The deceased was lying on the ground. The Inquest report was marked Exhibit P - 6 proved by Shiv Ram Bhagat, PW - 13, the A.S.I. Postmortem of the deceased was done within 36 hours by Dr. M.T. Minz, PW - 12 marked Exhibit P - 11. There was a lacerated wound on occipital region of skull measuring 10 cms x 12 cms with fracture of the occipital bone and the brain matter was coming out from the wound with intracerebral hemorrhage. The Doctor had opined that death was caused due to shock and internal brain hemorrhage due to antimortem head injury leading to fracture of skull and intracerebral hemorrhage.

3. The Appellant was taken into custody, his memorandum was marked as Exhibit P - 8 witnessed by Mohan Das, PW - 10 and Tekram, PW - 11. The Spade used for the assault recovered on basis of the same marked as Exhibit P - 9 was witnessed by Mohan Das, PW - 10 and Tekram, PW - 11. The clothes of the Appellant were seized by the police witnessed by Budhram Das, PW - 1 marked Exhibit P - 3. The FSL report Exhibit P - 17 has confirmed the presence of blood on the spade and the clothes of the Appellant. He has offered ho explanation with regard to the latter.

4. Learned Counsel for the Appellant submitted that he and the deceased were brothers. There existed no previous animosity between them. They were on visiting terms. They had mutually separated fifteen to twenty years ago and the common courtyard delineated their share of the properties. The Appellant was laying foundation in the drain within his portion of the courtyard to which the deceased had unnecessarily objected. He had no intention to kill his brother. The assault was made on grave and sudden provocation when the Appellant was being prevented from making construction in his own share of the courtyard. If the intention would have been to cause death the sharp edge of the spade and not the rear portion which fits into the wooden handle would have been used. There was no intention to assault on the head. The assault landed on the head because the deceased had bent down to take measurement. The Appellant then himself went to the Kotwar and informed of the assault. Rakesh Tiwari, PW - 6 has deposed that the Appellant in his presence had told the Kotwar to save his brother. His conduct therefore was not conducive with any intention to kill.

5. Reliance was placed on AIR 2007 SC 397 ( Dharam v. State of Haryana ) submitting that in similar circumstances, in a dispute between the brothers, the assault being similar as the present, considering the nature of relations between the parties, the origin of the land dispute, the conviction was modified from S.302 IPC to 304 Part - II IPC with rigorous imprisonment for 7 years as sufficient to meet the ends of justice. The Appellant has also spent over 7 years in