Pradeep Kumar, J. - (1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 18.3.2000 passed by Shri Tarkeshwar Prasad, Sessions Judge, Singhbhum West at Chaibasa in Sessions Trial No. 30 of 1997, by which judgment he found the appellant guilty under Sections 304 Part I of the Indian Penal Code and sentenced him to undergo R.I. for 10 years.
(2.) IT is submitted by the learned Counsel for the appellant that it will appear from the statement given in the Fardbeyan by the informant -P.W.1 as also the statement of the three eye witnesses that the appellant, Shib Charan Alda had no intention to cause the death of the deceased, Joto Alda, who was his elder brother from the same mother, but since he was abusing and assaulting his wife. Suddenly, the accused -appellant came out with a sword in his hand and gave a blow which hit the neck of the deceased and he died. Although, it could be gathered that he had knowledge, but since there was no intention and as such his conviction under Section 304 Part I of the Indian Penal Code is bad in law and fit to be altered. Learned Counsel for the State has opposed the prayer, but admits that this accused -appellant had initially no intention to commit the murder of the deceased, Jota Alda.
(3.) AFTER hearing both the parties and going though the record, I find that the prosecution case was started on the basis of a Fardbeyan given by informant, Nandi Kui -P.W.1 wife of the deceased, Jota Alda on 26.11.1996 at about 4.30 P.M. in the evening stating therein that in the last night at about 8 P.M. when the wife of this accused -appellant, Shib Charan Alda was talking with the wife of Chhota Manki at her Verandah, then her husband, Jota Alda went towards the wife of Shib Charan Alda and asked her as to why she abused them. Thereafter, a fight took place between them and the deceased gave two slaps to the wife of the appellant, Shib Charan Alda. Whereupon, this accused -appellant, Shib Charan Alda came running from the house with a sword in his hand and without asking anything gave a sword blow on the neck of the deceased, by which he fell down in the courtyard and at that time the wife of the deceased and her son was also there, but they could not go there in order to save him due to fear of the sword. She also stated that earlier they used to collect mahua flower in front of the house of this accused -appellant, Shib Charan Alda with the permission of Gosa Alda, nephew of this accused -appellant, Shib Charan Alda. She further stated that due to that enmity the accused -appellant has caused sword blow on the neck of the deceased, resulting into his instantaneous death.;