JUDGMENT : S.C. Parija, J. - This appeal by the accused is directed against the judgment dated 01.12.2000, passed by the Sessions Judge, Keonjhar, in S.T. Case No. 170 of 1996, holding him guilty u/s 302 Indian Penal Code & convicting him thereunder. 2. The case of the prosecution, in brief, is that the accused & the deceased are uterine brothers & living separately in mess & property. Both of them have lands at Badabilchaka, which they possessed separately after division amongst them. On 17.06.1996, in the early morning, Gananath Das, son of the deceased, had been to plough land which has fallen to the share of his father. The accused Bansidhar with a spade was engaged in cutting the ridge of the land under his possession. Deceased Hiranya after some time came to the land to see its condition. While the work was going on, at about 8.30 A.M., Bidyapati Das, son of Gananath Das, came with tiffin for his father. While Gananath was taking tiffin, deceased Hiranya went near the accused, who was cutting the ridge with a spade in his hand & asked him not to cut the ridge. There was altercation between them & Gananath after finishing his tiffin went near them to persuade his uncle Bansidhar (accused) not to quarrel. At that time, accused Bansidhar dealt a blow with the sharp side of the spade to the head of Hiranya. Seeing this, Gananath rushed towards the accused & before Bansidhar could give the second blow, he snatched away the spade from the accused. In course of tussle over the spade, Gananath sustained injuries on his head & both his hands. Accused Bansidhar, leaving the spade in the hand of the Gananath, ran towards the nearby jungle. Injured Hiranya was brought to Bamebari Out-Post by Gananath with his other brother & F.I.R. was lodged by Gananath, who also produced the weapon of offence, i.e. the spade. After lodging of the F.I.R., Hiranya was sent to the Central Hospital, Joda, where he was admitted & treated as an indoor patient & during treatment, he succumbed to the injuries on 17.06.1996 at 06.15 P.M. 3. On the basis of the FIR, the police carried out investigation, the body of the deceased Hiranya was sent for post-mortem examination & the weapon of offence (spade) was seized along with other incriminating articles & sent for chemical examination. On the basis of the FIR, the police carried out investigation, the body of the deceased Hiranya was sent for post-mortem examination & the weapon of offence (spade) was seized along with other incriminating articles & sent for chemical examination. On receipt of the post-mortem report, which revealed that the death of Hiranya was due to intra-cerebral haemorrhage & shock & on completion of the investigation, charge sheet was submitted against the accused u/s 302 Indian Penal Code. 4. The plea of the accused was one of complete denial. The accused, during trial, had taken the plea of right of private defence & while admitting the injuries on the deceased, it had been pleaded that it was a case of accident in course of tussle over the spade & that the accused had no intention to kill the deceased. 5. The prosecution, in support of its case, examined 20 witnesses. P. Ws. 19 & 20 are the Investigating Officers. P. Ws 15 & 18 are police constables, who took the dead body of the deceased for postmortem examination & were witnessed to the seizure of clothes of the deceased. P.W. 14 is the Doctor, who examined the accused. P.W. 16 is the Doctor, who conducted post-mortem examination of the deceased & proved the post-mortem report. P.W. 17 is another Doctor, who treated the deceased at Central Hospital, Joda & had declared him dead. P.W. 13 (Gananath Das) is the informant. P.W. 12 (Bidyapati Das) is the son of the informant. P.W. 7 is an independent witness. These three witnesses are eye witnesses to the occurrence. P.W. 9 is another son of the deceased, who being informed about the occurrence, came to the house & met his father on the way being carried on a cycle to the Central Hospital, Joda & noticed bleeding injuries on his head. He took his father to Bamebari Out-Post & on the advice of the police, shifted his father to the Central Hospital, Joda, for treatment, where his father succumbed to the injuries in the evening. He is also a witness to the inquest. P.W. 10 is the son of the accused, who has denied any knowledge about the occurrence. He took his father to Bamebari Out-Post & on the advice of the police, shifted his father to the Central Hospital, Joda, for treatment, where his father succumbed to the injuries in the evening. He is also a witness to the inquest. P.W. 10 is the son of the accused, who has denied any knowledge about the occurrence. P.W. 11 is another son of the deceased, who on being informed about the occurrence, came to the house & found his father was having severe cut bleeding injury on the skull & he was unable to talk. He made arrangement for shifting of his injured father to Bamebari Out-Post & on the way he was joined by his brother (P.W.9) & both of them took their father to the Central Hospital, Joda, for treatment, where he succumbed to the injuries. P. Ws.9 & 11 are also witnesses to the inquest. P.W. 8 is another son of the deceased, who on return to his house from duty at 2 P.M., came to know about the incident & went to see his father at Central Hospital, Joda. He is also a witness to the inquest. P.W. 6 is the Grama Rakhi, who is a witness to the lodging of the FIR by Gananath & production of a spade before the police. He proved the seizure list. P.W. 5 is a witness to the lodging of the FIR by Gananath at Bamebari Out-Post & claimed to have seen injured Hiranya along with the informant in the said Out-Post. He is also a witness to the seizure but had turned hostile. P.W. 4 also turned hostile. P.W. 3 is a witness to the seizure of bed-head ticket from Central Hospital, Joda. P.W. 2 is another witness to the inquest & had proved the inquest report & the seizure of the clothes of the deceased. P.W. 1 is another witness to the inquest & seizure of clothes of the deceased. 6. The Doctor (P.W.14) had examined the accused Bansidhar on 18.06.1990 & found one bruise of 1" x 1 1/2''on his left fore-arm and Anr. bruise of 1" x 1" on his left chest & opined that the injuries were simple in nature & likely to have been caused by a blunt weapon. 6. The Doctor (P.W.14) had examined the accused Bansidhar on 18.06.1990 & found one bruise of 1" x 1 1/2''on his left fore-arm and Anr. bruise of 1" x 1" on his left chest & opined that the injuries were simple in nature & likely to have been caused by a blunt weapon. P.W. 16, who conducted the post-mortem examination on the dead body of the deceased, found one lacerated wound over the frontal skull of size 3" x 1/4'' x 1/2''. There was fracture of the frontal bone & menenges over frontal bone were torn & the brain was lacerated. He opined that the wounds were ante-mortem in nature & the cause of death is intra cranial haemorrhage & shock. P.W. 16 also examined the weapon of offence, i.e. the spade, & opined that the injury on the deceased could be caused by the said weapon. Accordingly, the death of the deceased Hiranya was found to be homicidal. 7. Coming to the evidence of the informant (P.W.13), who is the son of the deceased, he corroborated the facts stated in the FIR. In his cross-examination, he denied the suggestion that he was the aggressor & had assaulted the accused with an axe on his left chest & right arm & that his deceased father was accidentally hit with the spade during tussle over the spade between him & the accused. 8. P.W. 12, who is the son of the informant, corroborated the facts stated in the FIR & the evidence of his father (P.W.13). In his cross-examination, he admitted that he did not disclose about the incident to others while coming from the spot to his house & that P.W. 7 was present in the vicinity of the spot. He denied the suggestion that his father (informant) proceeded towards the accused with a budia (axe) to assault him, though he admitted that his father was holding a budia (axe). 9. P.W. 7 is said to be the sole independent eye witness to the occurrence. In his evidence he stated that while he was ploughing his land & accused Bansidhar was cutting the ridge of his land with a spade, at that time, deceased Hiranya came & objected to cutting of the ridge by Bansidhar & there was altercation between them. P.W. 7 is said to be the sole independent eye witness to the occurrence. In his evidence he stated that while he was ploughing his land & accused Bansidhar was cutting the ridge of his land with a spade, at that time, deceased Hiranya came & objected to cutting of the ridge by Bansidhar & there was altercation between them. In course of altercation, Gananath (informant), son of deceased Hiranya came there & there was a tussle between Hiranya & accused Bansidhar over the spade. P.W. 7 deposed that he could not notice how Hiranya got injured but he saw Hiranya sat down when he left the spot. In the cross examination, P.W. 7 admitted that Gananath (informant) was ploughing his land & the deceased was levelling the ploughed land with a budia (small axe). At that time, deceased Hiranya came from his land to the accused & there was altercation between them & Gananath came with the budia (axe) & assaulted Bansidhar with it on his right side chest. He further stated that he had not noticed if Gananath dealt further blows to the accused & that accused Bansidhar did not raise his spade to assault. It was further stated by P.W. 7 that the tussle over the spade was between Bansidhar & deceased Hiranya & Hiranya was holding the blade portion of the spade & during such tussle, he (Hiranya) sustained injuries on his head. 10. Learned Sessions Judge found that the said eye witness (P.W.7) appears to have been gained over & that his evidence does not inspire confidence. 11. The evidence of P.W. 12 & 13 had been assailed by the defence on the ground that they did not disclose about the incident before other villagers before lodging the FIR, which has been negatived by the Learned Sessions Judge, on the ground that in view of the critical condition of their father, it was not expected on their part to have discussed the matter with other villagers to seek their advice before lodging the FIR. 12. Coming to the injuries on the accused, it was pleaded by the defence that the prosecution has not explained the same & is therefore guilty of suppression of material facts. 12. Coming to the injuries on the accused, it was pleaded by the defence that the prosecution has not explained the same & is therefore guilty of suppression of material facts. Learned Sessions Judge found that as per the opinion of the Doctor (P.W.14), the accused had sustained only two minor injuries, one on his left fore-arm & the other on his left side chest, which has been explained from the evidence of P.W. 7 as well as the evidence of the Doctor (P.W.14). Accordingly, Learned Sessions Judge came to find that there was no force in the defence plea that the informant (P.W.13) & the deceased were the aggressors & that the accused had exercised his right of private defence. 13. Lastly, it had been pleaded by the accused that he had no intention to cause death of the deceased as he had no prior motive or intention, as would be evident from the evidence led by the prosecution. This plea of the defence has been rejected by the Learned Sessions Judge on the ground that such intention or motive is to be presumed from the facts & circumstances of the case, keeping in view the nature of weapon used the place of injury & conduct of the accused. Learned Sessions Judge accordingly proceeded to hold that admittedly the incident took place during hot altercation & the accused had no prior motive but that does not relieve the accused that he had no intention to cause death of the deceased knowing fully well that he was assaulting with a sharp object with force to the head of the deceased. Accordingly, Learned Sessions Judge proceeded to hold the deceased guilty of having committed the offence u/s 302 Indian Penal Code & convicted him thereunder. 14. On a perusal of the evidence on record, it is abundantly clear that while the accused was cutting the ridge in his portion of land, deceased Hiranya went to him & asked him not to cut the ridge, for which altercation ensued between them. During altercation, the informant (P.W.13) went near them holding an axe & the accused is stated to have dealt a blow with the spade, which he was holding at that time, which was subsequently snatched away from him by P.W. 13. During altercation, the informant (P.W.13) went near them holding an axe & the accused is stated to have dealt a blow with the spade, which he was holding at that time, which was subsequently snatched away from him by P.W. 13. Moreover, the evidence of the independent witness (P.W.7) also throws some light with regard to the incident, which took place at the spot, prior to the alleged assault on deceased Hiranya. Further, it is admitted case of the parties that the accused & the deceased are brothers. 15. On a scanning of the evidence of the witnesses, it is clear that there was no premeditation or any prior motive for the accused to have assaulted deceased Hiranya. The entire incident appears to have taken place during the course of altercation at the spur of the moment & there is no evidence of there being any prior enmity between the parties. Moreover, from the evidence it is clear that the accused had dealt only one blow with the spade, which he was holding. Hence, we are of the opinion that the action of the accused in hitting the deceased with the spade, which he was holding at the time of the incident, was solely due to sudden quarrel & altercation & committed on the spur of the moment, without any pre-meditation or intention to cause death. We are informed that the accused has already undergone imprisonment for about 8 years. 16. In view of the discussions made above, this appeal is allowed in part & the impugned judgment convicting the Appellant u/s 302 Indian Penal Code is set side & the accused-Appellant is convicted for the offence u/s 304, Part-II Indian Penal Code & is sentenced to imprisonment for the period already undergone. The Criminal Appeal is allowed to the extent indicated above. A.S. Naidu, J. 17. I agree. Final Result : Dismissed