The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.91 of 2010 An appeal under section 374 Cr.P.C. from the judgment and order dated 30.08.2010 passed by the learned Additional Sessions Judge, Phulbani in S.T. No.75 of 2009. ------------------------- Sugyan Pradhan ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Niranjan Panda Legal Aid Counsel For Respondent: - Mr. Jateswar Nayak Addl. Govt. Advocate ------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE A.C. BEHERA --------------------------------------------------------------------------------------- Date of Hearing and Judgment: 27.01.2025 --------------------------------------------------------------------------------------- By the Bench: The appellant Sugyana Pradhan faced trial in the Court of Additional Sessions Judge, Boudh in S.T. Case No.75 of 2009 for offences punishable under Sections 302, 506 and 201 of the Indian Penal Code (in short „I.P.C.‟) on the accusation that on 26.06.2009 at about 6.00 a.m. at Mahibahal, Harijan Page 1 of 28 Sahi, he committed murder of his father Ramesh Pradhan (hereinafter called as the „deceased‟) and also committed the act of criminal intimidation by threatening the informant (P.W.1) and his elder son and also after having reason to believe that the murder of his father has been committed, he concealed the weapon of offence, i.e., Tangia (M.O.III) to cause disappearance of evidence. The learned Trial Court vide judgment and order dated 30.08.2010, though acquitted the appellant of the charges under sections 506 and 201 of the I.P.C., but found him guilty under section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/-(rupees five thousand), in default, to undergo further imprisonment for a period of two years. Prosecution Case: 2. The prosecution case, as per the F.I.R. lodged by P.W.1 Biren Dipa before the Inspector-in-Charge of Boudh Police Station on 26.06.2009, in short, is that on that day, in the early morning at about 6.00 a.m. while he was present in front of his house, he saw the deceased and his son (appellant) were proceeding with a pair of bullock. The deceased was following the appellant and prevented the appellant to take the bullocks for selling, for which, the appellant assaulted the deceased with Page 2 of 28 a Tangia (M.O. III) on the head. After the deceased fell down on the ground, the appellant assaulted him on the neck. When P.W.1 tried to intervene, the appellant showed him Tangia, for which, the informant came inside the village and informed about the incident in the house of the deceased. P.W.1 and the elder son of the deceased shifted the deceased to Phulbani Hospital, who was in a serious condition and seeing them, appellant fled away from the spot. The oral report of P.W.1 was reduced into writing by Babuli Kanhar (Gram Rakhi) (P.W.2), attached to Boudh Police Station and it was read over to P.W.1 and P.W.1 gave his LTI on the report. The written report was presented before the I.I.C. of Boudh Police Station and accordingly, Boudh P.S. Case No.67 of 2009 was registered on 26.06.2009 under sections 324, 307 of the I.P.C. P.W.14, the I.I.C himself took up investigation of the case after registering the F.I.R. and during the course of investigation, he examined the informant (P.W.1) as well as the scribe of the F.I.R. Babuli Kanhar (P.W.2), who had accompanied him to the police station. The I.O. visited the spot and prepared the spot map (Ext.10) and examined other witnesses. He collected bloodstained earth, sample earth in presence of the witnesses and prepared the seizure list (Ext.2). He also Page 3 of 28 examined other witnesses, searched for the appellant and finally apprehended him from village Charichak and arrested him. While in police custody, the appellant in presence of the witnesses disclosed to have thrown the Tangia (M.O. III) in the water of Laxmi Nala and also volunteered to give recovery of the same. The statement of the appellant under section 27 of the Evidence Act was recorded by the I.O. vide Ext.4 and thereafter, the appellant led the witnesses and the police party to the said Nala and from the water, he brought out the Tangia and produced the same before the I.O., which was seized as per the seizure list (Ext.3). During the course of investigation, P.W.14, the I.O. came to know that the deceased was referred to M.K.C.G. Medical College and Hospital, Berhampur for better treatment and then he seized the wearing apparels of the appellant under seizure list (Ext.6) and on 27.06.2009, the appellant was forwarded to the Court. Subsequently, more witnesses were examined and on 29.06.2009, the I.O. came to know that the deceased succumbed to his injuries while undergoing treatment at S.C.B Medical College and Hospital, Cuttack. On receipt of intimation from the S.C.B Medical College and Hospital, one U.D. case was registered at Mangalabag Police Station and inquest was held and the dead body was sent for post mortem Page 4 of 28 examination and P.W.12, Assistant Professor of the Department of F.M.T., S.C.B. Medical College and Hospital conducted post mortem examination and submitted his report vide Ext.8. The I.O. also received the reports from the District Headquarters Hospital, where the deceased was treated in an injured condition. The I.O. then received the U.D. case records from Mangalabag Police Station, the inquest report, dead body challan and post mortem examination report and he also took steps for sending the exhibits to the S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and received the chemical examination report vide Ext.15. On completion of investigation, he submitted charge sheet on 15.10.2009 against the appellant under sections 302, 201 and 506 of the I.P.C. Framing of Charges: 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court framed charges against the appellant as aforesaid and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Page 5 of 28 Prosecution Witnesses, Documents Exhibited and M.Os. proved By Prosecution: 4. During the course of trial, in order to prove its case, prosecution examined as many as fourteen witnesses. P.W.1 Biren Dipa is the informant. He stated that about one year back, the deceased had been killed in front of his house by the appellant. He further stated that on the fateful day in the early morning, he was present in front of his house and noticed that while the deceased was passing through the front of his house, the appellant suddenly dealt blow by means of tangia on the head of the deceased and noticing this, he interfered and asked the appellant as to why he was inflicting tangia blows on the deceased and thereafter, he rushed into the village and informed the matter to P.W.5, who is the son of the deceased. P.W.2 Babuli Kanhar is the scribe of the F.I.R. P.W.3 Rabi Pradhan, who is the son of the deceased, stated that around one year back, one early morning, the appellant killed the deceased by inflicting tangia blow in front of the house of P.W.1 and at the relevant time, he was attending the call of nature and therefrom, he witnessed the incident. P.W.4 Ashok Pradhan, who is another son of the deceased, stated that the appellant killed the deceased by inflicting tangia blows. He is a witness to the seizure of tangia Page 6 of 28 and blood stained earth as well as sample soil as per seizure lists marked as Ext.2 and Ext.3 respectively. P.W.5 Bigyana Pradhan is the elder brother of the appellant and son of the deceased. He stated that at the relevant time, he was sleeping in his house and when P.W.1 came to his house and informed that the appellant inflicted tangia blows on his father and killed him in front of the house of P.W.1, he rushed to the spot and found that his father was lying in a pool of blood and he found cut injuries on his neck, backside of the head and on his back. He further stated that he himself with the help of P.W.6 and others shifted the deceased to Phulbani Hospital and then he (deceased) was referred to S.C.B. Medical College & Hospital, Cuttack where he died. He further stated that when he arrived at the spot, he found that the appellant being armed with a tangia fled away from the spot. He is a witness to the inquest over the dead body of the deceased and proved the inquest report marked as Ext.5. P.W.6 Susila Pradhan is the younger brother of the deceased. He stated that on 26.06.2009, the appellant murdered the deceased and on that morning around 5.00 a.m., while he was performing his morning walk, he heard hulla raised by P.W.1 from the side of his own house and he rushed to the spot and found that the deceased was lying in a pool of blood in front of Page 7 of 28 the house of P.W.1 and the appellant being armed with a Tangia ran away towards the rivulet of their village. He further stated that reaching near the deceased, he found that the deceased was lying on the ground facing downward having cut injuries on the back portion of his head, scapula of his back and was struggling for life and thereafter, he along with others took the deceased to Phulbani Hospital and the deceased was then referred to S.C.B. Medical College and Hospital, Cuttack where he succumbed to his injuries. He is also a witness to the inquest over the dead body of the deceased and proved the inquest report marked as Ext.5. P.W.7 Chaturbhuja Pradhan is a co-villager of the appellant and the deceased. He stated in similar manner like P.W.6. P.W.8 Kadambini Joshi, who was working as constable attached to Boudh police station, is a witness to the seizure as per seizure list marked as Ext.6. P.W.9 Sudarsan Dipa is a co-villager of the appellant and the deceased. He is also a witness to the disclosure statement of the appellant and he proved the disclosure statement marked as Ext.4/1. He is also a witness to the seizure as per seizure lists marked as Exts.2 and 3. Page 8 of 28 P.W.10 Banamali Behera stated that on hearing cry, he rushed towards the house of P.W.1 and found that the deceased was lying with injuries on his person on the village road in front of the house of P.W.1 and by then, the appellant had already fled away. Thereafter, he did not support the prosecution case for which he was declared hostile by the prosecution. P.W.11 Dr. Shyama Prasad Panigrahi was posted as the Assistant Surgeon, District Headquarters Hospital, Phulbani. He stated that on 26.06.2009, the deceased was admitted into the Surgical Ward with certain bodily injuries on his person and he medically examined him. He further stated that due to the severity of the injuries and physical condition, he referred the deceased for better treatment to S.C.B. Medical College and Hospital, Cuttack. He proved his report marked as Ext.7. P.W.12 Dr. Soumya Ranjan Naik was posted as the Assistant Professor, Department of F.M.T., S.C.B. Medical College and Hospital, Cuttack. On police requisition, he conducted post mortem examination over the dead body of the deceased and proved his report vide Ext.8. P.W.13 Suryanarayana Das was working as S.I. of Police attached to Mangalabag police station, who is the enquiring officer of the U.D. Case No.762 of 2009 and on Page 9 of 28 31.08.2009, he handed over the charge of enquiry to the I.I.C. Mangalabag police station. P.W.14 Suresh Kumar Das was working as the Inspector in-charge of Boudh police station and he is the Investigating Officer of the case. The prosecution exhibited fifteen documents. Ext.1 is the F.I.R., Exts.2, 3, 6, 12, 13 are the seizure lists, Ext.4/1 is the disclosure statement of the appellant, Ext.5 is the inquest report, Ext.7 is the injury report of the appellant, Ext.8 is the post mortem report, Ext.9 is the dead body chalan, Ext.10 is the topography of spot map, Ext.11 is the VHF message, Ext.14 is the office copy of forwarding letter and Ext.15 is the Chemical Examination Report. The prosecution also proved three material objects. M.O.I is the lungi, M.O.II is the Gamucha and M.O.III is the Tangia. Defence Plea: 5. The defence plea of the appellant is that on 25.06.2009, the deceased met with a vehicular accident and he was shifted to Phulbani Hospital by his brother and uncle in a Jeep and then, he was referred to S.C.B Medical College and Hospital, Cuttack for treatment and the case has been falsely Page 10 of 28 instituted against him by his brother and his uncle in order to grab his properties. The appellant examined himself as D.W.1.
Legal Reasoning
Findings of the Trial Court: 6. The learned trial Court after assessing the oral as well as documentary evidence on record came to hold that the deceased met with a homicidal death. The learned trial Court also accepted the evidence of the eye witnesses (P.W.1 and P.W.7) and also the corroborative evidence, which has been adduced by P.Ws.3, 5 and 6, who have seen the appellant running away from the spot while the deceased was lying in a pool of blood. The learned trial Court also accepted the prosecution case relating to the leading to discovery of the weapon of offence, i.e., Tangia (M.O. III) at the instance of the appellant and came to hold that there is no evidence that for the recovery or giving a statement under section 27 of the Evidence Act, there was any manner of threat, coercion or allurement given to the appellant. Though, the learned trial Court gave benefit of doubt to the appellant, so far as the commission of offences under sections 201 and 506 of the I.P.C. are concerned, but on overall analysis of the evidence, it came to hold that the prosecution has well established the case against the appellant that he committed the murder of the deceased and accordingly found him guilty under section 302 of the I.P.C. Page 11 of 28 Contentions of the Parties: 7.
Legal Reasoning
Mr. Niranjan Panda, learned counsel for the appellant argued that the occurrence took place in the early morning and P.W.3 has stated that there was slight darkness at the relevant time of the occurrence and he has further stated that he had not seen anyone else near the close vicinity and therefore, the presence of P.W.1 and P.W.7, the two eye witnesses at the scene of occurrence is a doubtful feature and since there was darkness, it would not have been possible on the part of P.W.1 and P.W.7 to mark the assault. Learned counsel further argued that in the factual scenario, when the appellant is the son of the deceased and there was no previous animosity between the father and son and the occurrence happened all on a sudden when the appellant was prevented by the deceased to take the bullocks for sale and on grave and sudden provocation, the appellant dealt the blows to the deceased by means of a Tangia (M.O. III), therefore, the case would fall squarely within Exception 1 or Exception 4 to section 300 of the I.P.C. and it would be a case under section 304 Part-1 of the I.P.C. and not under section 302 of the I.P.C. Learned counsel further submits that the appellant was taken into judicial custody since 2009 and thus, after altering the conviction to one section 304 Part-1 of Page 12 of 28 the I.P.C., the sentence be reduced to the period already undergone. Mr. Jateswar Nayak, learned Additional Government Advocate for the State, on the other hand, supported the impugned judgment and argued that both P.W.1 and P.W.7 are the co-villagers of the appellant as well as the deceased and the occurrence took place at about 6.00 O‟ Clock in the morning in the month of June and therefore, it cannot be said that there would be any issue to the visibility factor of both the eye witnesses. He further argued that the evidence of both the eye witnesses is getting corroboration from the medical evidence adduced by the doctor (P.W.12), who had seen a number of injuries, not only on the vital part of the body like head, but also on the chest and opined the cause of death to be intracranial haemorrhage. Learned counsel for the State further urged that the learned trial Court has also rightly placed reliance on the evidence of P.Ws.3, 5 and 6, as they had seen the appellant running away from the spot. The additional evidence against the appellant is that at his instance, the weapon of offence, i.e., Tangia (M.O. III) was recovered basing on his statement recorded under section 27 of the Evidence Act. He further argued that it is not a case of grave and sudden provocation and the Page 13 of 28 deceased merely asked the appellant not to take the bullocks to sell, as it was a cultivation season and the reaction of the appellant in assaulting the deceased mercilessly even after he fell down on the ground lying face downwards and dealing repeated blows on the scalp shows his intention to commit the murder. Therefore, the learned trial Court has rightly found the appellant guilty under section 302 of the I.P.C. and the appeal should be dismissed. Whether the prosecution proved the homicidal death of deceased: 8. Adverting to the contentions raised by the learned counsel for the respective parties, let us first analyze the evidence on record as to whether the prosecution has successfully established that the deceased met with homicidal death or not. Apart from the inquest report (Ext.5), the evidence of the doctor (P.W.12), the Assistant Professor attached to the Department of F.M.T., S.C.B. Medical and College Hospital, Cuttack, who conducted the post mortem examination over the dead body of the deceased on 28.06.2009 is very relevant. The doctor noticed the following external injuries:- Page 14 of 28 EXTERNAL INJURIES (i) There is a stitched incised wound of scalp measuring to 10 cm x 1 cm x skull deep present on right parietal eminence. The edges of the wound were not smooth or so cleanly cut and there is gapping of edges. There is infiltration of blood in the margins of the wound. There was no fresh bleeding; (ii) Similar stitched incised wound on the scalp having size 7 cm x 1.5 cm x skull deep, adjacent to wound no.1 (supra) and merged with that in the shape of “V”; (iii) Similar stitched incised wound of size 2 cm x 0.5 cm x 0.5 cm present on the scalp present on left side forehead; (iv) Similar stitched incised wound of size 2 cm x 0.5 cm x 0.5 cm present on the scalp 1cm posterior to left ear; (v) Another stitched incised wound of size 7 cm x 2 cm x skull deep of scalp present 5 cm posterior to the left ear. The edges of the wound are not cleanly cut and there was gapping of edges. There was infiltration of blood in the margins of the wound. There was no fresh bleeding; Page 15 of 28 (vi) Similar stitched incised wound of size 7 cm x 1 cm x 0.5 cm present just above the left supra clavicular fossa; (vii) Similar stitched incised wound of size 7 cm x 1.5 cm x 2 cm was present vertically on the left side back of the chest at the medial border of scapula; (viii) Similar stitched incised wound of size 8 cm x 2 cm x 2 cm was present horizontally on the right side back of the chest between medial border of scapula and midline of the back; (ix) Similar stitched incised wound of size 2.5 cm x 1 cm x 0.5 cm was present on the left shoulder; (x) One stitched lacerated wound of size 5 cm x 0.5 cm x 0.5 cm was present on the scalp 5 cm above the left ear; (xi) Multiple small abrasions with reddish scab over that over an area of 6 cm x 6 cm present on the dorsum of the right knee; (xii) Similar multiple small abrasions over an area of 2 cm x 2 cm present on the dorsum of the left elbow. Page 16 of 28 INTERNAL INJURIES: There was a contusion of under surface of scalp of size 8 cm x 8 cm on the left parietal area. There was a fracture of skull at right parietal eminence corresponding to external injury no.(i) (Supra). There was another cut fracture of the scalp adjacent to the above cut fracture corresponding to external injury no.(ii) (Supra). Dura was cut underneath the fractured skull corresponding to external injury no.(i) (Supra). There was presence of extradural haemorrhage of 0.5 cm thickness on right side. There was a thin layer of subdural haemorrhage over the left cerebral hemisphere. There was presence of multiple hemorrhages in the pons (vital part of the brain). Stomach was intact and empty. All other organs were intact and congested. On the basis of the external and internal injuries, P.W.12 came to the following conclusion and opinion:- (i) The external injury nos.(i) to (ix) and the corresponding internal injuries were ante mortem in nature and caused by moderately heavy to heavy cutting weapons; (ii) The external injury nos.(x), (xi) and (xii) were also ante mortem in nature and might have been caused by hard and blunt force/object impact; Page 17 of 28 (iii) The external injury nos.(i) and (ii) and corresponding internal injuries were individually as well as collectively are fatal in ordinary course of nature; (iv) Death was due to intracranial haemorrhage; (v) The age of the injuries appeared to be within one to two days from the time of post mortem examination; (vi) The time since death was within about 18 to 24 hours prior to the autopsy. P.W.12 proved the post mortem report as Ext.8 and he has specifically stated that Tangia (axe), Kati, Bhujali come under the category of moderately heavy to heavy weapon. Nothing has been brought out in the cross- examination to disbelieve the evidence of P.W.12. In view of the inquest report (Ext.5) coupled with the evidence adduced in this case and more particularly, the evidence of the doctor (P.W.12), who conducted post mortem examination and proved the post mortem report (Ext.8), we are the view that the learned trial Court has rightly came to the conclusion that the deceased met with a homicidal death. The learned counsel for the appellant has not disputed such finding. Page 18 of 28 Analysis of the evidence of eye witnesses and other evidence: 9. There are two eye witnesses to the occurrence. P.W.1 Biren Dipa has stated that the occurrence took place in front of his house. On the date of occurrence in the early morning, he was present in front of his house and he noticed that while the deceased was passing in front of his house, the appellant dealt blows by means of Tangia on the head. He interfered and asked the appellant as to why he was inflicting Tangia blows to the deceased and then he rushed to the village and informed the matter to P.W.5, the son of the deceased. He further stated that he informed the matter at the police station and one person scribed the F.I.R. and the deceased was shifted to Phulbani Hospital. In the cross-examination, he has stated that the incident took place at a distance of about 200 cubits ahead of his house and the incident happened early dawn on that morning and he had not marked as to where, the axe blow hit the person of the deceased. He stated that he could not say as to who scribed the report, which was presented at the police station and further stated about the presence of houses near the place of occurrence. Nothing has been brought out in the cross- examination of P.W.1 to disbelieve his evidence. Page 19 of 28 P.W.7 Chaturbhuja Pradhan has stated that in the early morning on 26.06.2009 while he had been to attend the call of nature, he heard the voice of P.W.1 from the side of his house to the effect that the appellant was dealing blows to the deceased and hearing such shout, he reached at the spot, i.e., in front of the house of the P.W.1 where he noticed the deceased, who was lying facing downwards and the appellant was inflicting Tangia blows on his back. When he shouted, the appellant ran away with the Tangia. He further stated that the appellant inflicted Tangia blows to the deceased as the deceased protested him taking the pair of bullocks of the family to sell despite the time was a cultivable season. In the cross-examination, he has stated that the spot of occurrence would be around 50 to 60 meters away from the village locality and by the time of his arrival at the spot, none else had reached near the deceased. The contention of Mr. Panda, learned counsel for the appellant referring to the evidence of P.W.3 is required to be discussed here. P.W.3 is a witness, who has also stated that he had been to attend the call of nature and therefrom he saw the occurrence that the appellant was inflicting Tangia blows to the deceased in front of the house of P.W.1 and then, the appellant Page 20 of 28 fled away from the spot. The learned trial Court disbelieved him as an eye witness. In the cross-examination, P.W.3 has stated that at the relevant point of time, there was slight darkness and he had not seen anybody else near the vicinity. Since P.Ws.1 and 7 are the co-villagers, in our humble view, in the early morning at about 6.00 a.m. in the month of June, there would not have been any difficulty for these witnesses to identify the appellant and the deceased and also the manner of assault. The witnesses were at different position watching the occurrence. P.W.3 was attending the call of nature at a distance of about 200 cubits away from the spot and from there he stated to have witnessed the occurrence. P.W.1 was present in front of his house. Nothing has been brought out from the evidence of P.W.3 that the front of the house of P.W.1 was visible to him. Thus, the mere statement of P.W.3 that he could not see anyone near the vicinity does not rule out the presence of P.W.1 or P.W.7 at the spot to see the occurrence of assault on the deceased. When nothing has been brought out in the evidence of P.W.1 and P.W.7 to doubt their presence at the spot, the mere statement of P.W.3 cannot be a ground to discard their version as eye witnesses. Page 21 of 28 P.W.3 has stated to have seen the appellant fleeing away from the spot. The evidence of other witnesses like P.W.5 and P.W.6 are equally important. P.W.5 has stated that when P.W.1 came to his house and informed that the appellant had inflicted Tangia blows to his father (deceased), he rushed to the spot and found the deceased was lying in a pool of blood in front of the house of the P.W.1 and there were cut injuries on the neck and backside of his head and whereafter the deceased was shifted to Phulbani Hospital. He further stated that the appellant being armed with a Tangia was running away towards Laxmi Nala. P.W.6 has also stated that on hearing hulla raised by P.W.1 from the side of his house, he rushed to the place and found the deceased was lying in a pool of blood in front of the house of P.W.1 and the appellant being armed with Tangia was running away towards the culvert of the village. He further stated that the deceased was lying on the ground facing downwards with cut injuries on the back portion, scalp and struggling for life and he was shifted to Phulbani Hospital. The conduct of the appellant in escaping from the scene of the occurrence holding Tangia is relevant under section 8 of the Evidence Act. In view of the evidence of all these witnesses as discussed above, we are of the view that the prosecution has Page 22 of 28 proved that the occurrence in question took place in front of the house of P.W.1. The manner of assault of the deceased as deposed to by P.W.1 and P.W.7 is getting corroboration from the evidence of the doctor (P.W.12) and from the post mortem report findings. In addition to that, the evidence of the witnesses i.e. P.Ws.3, 5 and 6 that the appellant was seen decamping from the spot holding Tangia is also a factor, which strengthened the prosecution case. The evidence of the Investigating Officer (P.W.12) is that while in police custody, the appellant volunteered to give recovery of the weapon of offence and accordingly, the statement was recorded and he led the witnesses and the police party to the water from where he brought out the Tangia (M.O. III) and produced the same before him and accordingly, the seizure list (Ext.3) was prepared. The learned trial Court has rightly placed reliance on such evidence. Therefore, from the evidence of eye witnesses, the witnesses to the circumstances relating to running away of the appellant from spot holding the weapon coupled with the medical evidence, we are of the view that the prosecution has proved that it was due to the repeated blows given by the appellant by means of Tangia that has resulted in the death of the deceased. Page 23 of 28 Whether the conviction of the appellant under section 302, I.P.C. is justified?: 10. The next contention raised by the learned counsel for the appellant is that the case would squarely fall within the ambit of Exception 4 or Exception 1 to section 300 of the I.P.C. and the conviction should be altered to one under section 304 Part-I of the I.P.C. „Culpable homicide‟ has been defined under section 299 of the I.P.C. Culpable homicide is murder, if it comes under any of the four clauses as mentioned under section 300 of the I.P.C. So far as Exception 4 to section 300 of the I.P.C. is concerned, the culpable homicide is not murder if it is committed without premeditation in a sudden fight in a heat of passion upon a sudden quarrel and without offender having taken undue advantage or acted in a cruel or unusual manner. The help of Exception 4 to section 300 of I.P.C. can be invoked if death is caused: (a) without premeditation, (b) in a sudden fight, (c) without the offender having taken undue advantage or acted in a cruel or unusual manner and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. (Ref: (2023) 13 Page 24 of 28 Supreme Court Cases 365, Balu Sudam Khalde -Vrs.- State of Maharashtra). However, in this case, there is lack of evidence that there was any sudden fight in a heat of passion upon a sudden quarrel between the appellant and the deceased. Therefore, we are of the view that Exception 4 would not be applicable. Coming to the Exception 1 to section 300 of the I.P.C., it is stated that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. This Exception 1 is subject to certain provisos. So far as the 1st proviso to Exception 1 is concerned, it is stated that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. In the case at hand, as it appears, it was a cultivable season and the deceased asked the appellant not to take the bullocks for the purpose of selling. P.W.5, the brother of the appellant has stated in the cross-examination that they all the brothers in their family are partitioned by metes and bounds and accordingly, the individual brothers had got their own pairs of bullocks and cows, but, no such plea has been taken by the Page 25 of 28 appellant that he was going to sell the bullocks which fell to his share, to which, his deceased father prevented, rather, he has taken the plea that his father met with a vehicular accident and was shifted to the hospital and died during course of treatment. Even though, such a plea has been taken by the appellant being examined as D.W.1, but, no such suggestion has been given to the doctor (P.W.12), who conducted the post mortem examination that the injuries, which were noticed by him on the person of the deceased were possible by vehicular accident. No such suggestions have also been given to the eye witnesses i.e. P.W.1 and P.W.7. Moreover, when the appellant was examined under section 313 of the Cr.P.C., he has not taken any such plea that the deceased met with a vehicular accident, for which, he was shifted to the hospital and died. Therefore, whatever the appellant has deposed to as D.W.1, it appears to be an afterthought story and no reliance can be placed on it. Therefore, the defence plea is totally not acceptable. Coming to the factual scenario, we are of the view that it cannot be said to be a case of grave and sudden provocation on the part of the appellant to loss his power of self- control and to deal blows after blows with sharp side of Tangia (M.O. III) on the vital parts of the body of the deceased. No Page 26 of 28 overt act alleged against the deceased by which it can be stated that the appellant was provoked by deceased to satisfy requirements of first proviso to Exception 1 to section 300 of the I.P.C. From the proved facts, it appears that provocation was voluntary on the part of the appellant. Such provocation cannot come to the rescue of the appellant. The manner in which the assault has been made, number of injuries caused to the deceased and as noticed by the doctor on the scalp itself shows that the assault had resulted in causing fracture of scalp leading to haemorrhage and the sharp side of the Tangia has been used and the doctor has stated that the external injury nos. (i) and (ii) and the corresponding internal injuries are fatal in any ordinary course of nature to cause death. Therefore, we are of the view that the act by which the death was caused was done with the intention of causing death and it squarely comes under clause „firstly‟ of section 300 of the I.P.C. and none of the exceptions are attracted and the learned trial Court has rightly found the appellant guilty under section 302 of I.P.C. Conclusion: 11. In view of the forgoing discussions, JCRLA being devoid of merits, stands dismissed. The impugned judgment and order of conviction stands confirmed. Page 27 of 28 The trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. Before parting with the case, we would like to put on record our appreciation to Mr. Niranjan Panda, the learned Legal Aid counsel for rendering his valuable help and assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. Jateswar Nayak, learned Additional Government Advocate. (S.K. Sahoo) Judge (A.C. Behera) Judge Orissa High Court, Cuttack The 27th day of January 2025/Binayak & Jagabandhu Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 05-Feb-2025 09:43:39 Page 28 of 28