[Cites 11, Cited by 0]
Jharkhand High Court
Baiju Oraon Son Of Late Dahru Oraon vs The State Of Jharkhand ... ... Opp. Party on 11 February, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 210 of 2017
[Against the Judgment of conviction and Order of sentence dated
23rd December, 2016 passed by learned Additional Judicial
Commissioner-V, Ranchi in Sessions Trial No.209 of 2009 arising
out of Chanho P.S. Case No. 20 of 2008 corresponding to G.R. Case
No. 1103 of 2008]
Baiju Oraon Son of Late Dahru Oraon, R/o Barahiya, P.O.
& P.S. Chanho, District Ranchi
... ... Appellant
Versus
The State of Jharkhand ... ... Opp. Party
with
Criminal Appeal (D.B.) No. 232 of 2017
-------
Somra Oraon Son of Baiju Oraon, R/o Barahiya, P.O. &
P.S. Chanho, District Ranchi
... ... Appellant
Versus
The State of Jharkhand ... ... Opp. Party
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellants : Mr. Rajveer Singh, Advocate
For the Respondent : Mrs. Nehala Sharmin, Spl. P.P.
[Through Virtual Mode]
.....
C.A.V. on 03/02/2026 Pronounced on 11/02/2026
Per Sujit Narayan Prasad, J.:
1. Since both the appeals arise out of the common
Judgment of conviction and Order of sentence dated 23 rd
December, 2016 passed by learned Additional Judicial
Commissioner-V, Ranchi in Sessions Trial No.209 of 2009
arising out of Chanho P.S. Case No. 20 of 2008
corresponding to G.R. Case No. 1103 of 2008, as such
they have been tagged together and taken up together for
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analogous hearing and are being disposed of by this
common order.
Prayer
2. The instant appeals are directed against the
Judgment of conviction and Order of sentence dated 23 rd
December, 2016 passed by learned Additional Judicial
Commissioner-V, Ranchi in Sessions Trial No.209 of 2009
arising out of Chanho P.S. Case No. 20 of 2008
corresponding to G.R. Case No. 1103 of 2008, whereby
and whereunder both the appellants are convicted under
section 302 r/w 34 of IPC and appellant Somara Oraon is
further convicted under section 324 of IPC. Both the
appellants are directed to undergo RI for life u/s 302 of
IPC and a fine of Rs.2000/- each and in case of default
they have to further undergo SI for six months. Appellant
Somra Oraon is also sentenced to undergo RI for three
years u/s 324 of IPC. Both the sentences passed against
the convict Somra Oraon shall run concurrently.
Prosecution Case:
3. Prosecution case as per fardbeyan dated 20.03.2008
of the informant Bariya Urain(P.W.-9) aged about 36 years
wife of late Fagu Oraon resident of village- Barhiya, PS-
Chanho, Distt-Ranchi recorded by S.I M.Tudu of Chanho
P.S. Distt-Ranchi on 20.03.2008 at 20 hours at Barahaiya
PS-Chanho Distt-Ranchi, is that on 20.03.2008 at about
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6.30 PM she was standing at her door and her husband
Fagu Oraon(deceased) was standing in the courtyard.
They were constructing house of mud, on their own share
of land, beside their old house to which her brother-in-law
(bhainsur) Baiju Oraon(appellant) and his family was
opposing. Today they had soaked soil for the purpose of
constructing wall. At this her brother-in-law Baiju Oraon
told that he will not allow them to construct the wall. At
this her husband told him why he is doing so, if they will
not construct house where they will live. At this her
brother-in-law Baiju Oraon took out a sword from his
house and his son Somra Oraon (appellant) took out a
baluwa and both started assaulting her husband in the
courtyard by aforesaid weapons indiscriminately, so, her
husband fell down. Then both the accused persons
assaulted on the neck of her husband and her husband
died immediately. She informed the neighbours then they
gathered on the spot.
4. On the basis of aforesaid fardbeyan of informant
Chanho P.S. Case No.20/2008 dated 20/08/2008 u/s
324, 302, 34 of IPC was registered against the appellants.
5. After investigation police filed charge-sheet against
the appellants u/s 302, 324/34 of IPC and cognizance of
the offences were taken and the case was committed to
the court of Sessions. Charges u/s 302/34 and u/s 324/
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34 of I.P.C were framed against both the appellants which
was read over and explained to accused persons to which
they pleaded not guilty and claimed trial.
6. The prosecution has altogether examined nine
witnesses out of whom P.W.-1 Baria Oraon, is the
informant of the case; P.W.-2 Dahru Oraon, is father of
the deceased; P.W.-3 is Fakri Oraon; P.W.-4 is Sunil Lal;
P.W.-5 Sumar Devi, is the mother of the deceased; P.W.-6
Likhu Oraon, is brother of the deceased; P.W.-7 is Dr
Chandra Sekhar Prasad; P.W.-8 is Dr. Kapil Deo Singh
and P.W.-9 Kameshwar Kumar Singh, is the investigating
officer of the case.
7. The learned trial court, on appreciation of the
evidences produced on behalf of the prosecution and
defence, found the allegation proved against the
appellants and accordingly, passed the judgment of
conviction and order of sentence as referred herein above,
which is under challenge in the instant appeal.
Argument on behalf of appellants
8. Learned counsel for the appellants has taken the
following grounds, in assailing the impugned judgment of
conviction and order of sentence, as under: -
I. The prosecution has miserably failed to establish
the charge said to be proved, beyond all reasonable
doubt, in establishing the charge said to be
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committed by the appellants under section 302/34
of the IPC.
II. The impugned judgment of conviction has been
passed on the evidence of sole eye witness, the
informant of the case, P.W.-1, who is none other
than the wife of the deceased, and a highly interested
witness.
III. P.W.-1 in her testimony has deposed that partition of
the land had already been executed in between Baiju
Oraon and her husband and the same has been
executed before four persons of the same village the
same was put down in writing, hence it can be
apparently inferred that there was no dispute in
between the deceased and the appellant with regard
to land. Therefore, the ingredient of motive is
lacking.
IV. Further submission has been made that P.W.-5
Sumar Devi, the mother of the deceased has deposed
in paragraph-1 of her examination-in-chief that
construction of the house was already completed and
even asbestos roof was put up in the place, but
nobody objected at the time of construction. This
statement itself shows that there was no enmity in
between the deceased and the appellants.
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V. P.W.-2, the father of the deceased has stated that he
did not see Baiju and Somra, the appellants herein,
committing murder of the deceased, Fagu. Further at
paragraph-3, he has deposed that when he reached
at the place of occurrence, he saw Baiju and Dula
were present there and there was no weapon of
assault in their hands.
VI. Submission has been made that if the appellants
had committed murder, they would have fled away
from the place of occurrence but they did not, which
shows that they are innocent and has been trapped
in the case.
VII. Further submission has been made that P.W.-4, who
is witness to search-cum-seizure and independent
witnesses did not support the case of the
prosecution.
VIII. Further anomaly has been shown that the alleged
weapon of assault has neither been produced before
the Court nor marked as material exhibit to proof the
factum of murder.
IX. Learned counsel for the appellants has further
submitted that all the defense witnesses have
categorically deposed that the deceased had
connection with extremist group but later on the
deceased turned spy of police and even on the date
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of occurrence there was party by the extremist in the
house of the deceased and for that reason the
deceased could have been murdered but that aspect
of the matter has not been considered by the learned
trial court.
X. In alternate, submission has been made that even if
the entire prosecution story will be accepted to be
true then also no ingredient of Section 302 of the
Indian Penal Code is available rather at best it is a
case of under Section 304 (Part-I) of the Indian Penal
Code.
XI. Such submission has been made on the basis of the
fardbayan and evidence of the prosecution witnesses
wherein it has been stated by the informant P.W.-1
that prior to the assault, altercation and scuffle took
place between the deceased and Baiju Oraon
(appellant) on the issue construction of new house.
XII. Further submission has been made that informant
has stated in her evidence that before the assault
appellants were not armed with weapon.
XIII. It has been contended that from the aforesaid
narration of the prosecution version, it is clear that
there was no premeditation of mind to commit
murder of the deceased by the appellant.
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XIV. The learned counsel appearing for the appellants
based upon the aforesaid grounds has submitted
that the conviction under section 302 IPC is not
established against the appellants and hence, the
impugned judgment is fit to be quashed and set
aside.
XV. The learned counsel for the appellants, based upon
the aforesaid ground, has submitted that the
impugned judgment suffers from illegality, hence not
sustainable in the eyes of law.
Argument on behalf of the State
9. While on the other hand, Mrs. Nehala Sharmin,
learned Spl. P.P. appearing for the State, defending the
impugned judgment of conviction has raised the following
arguments in response to the grounds taken by learned
counsel for the appellants, as referred hereinabove: -
I. There is no error in the judgment of conviction and
order of sentence since culpable homicide is there
and admittedly all the witnesses have deposed about
the assault given by appellants, which ultimately
resulted into death of the deceased, which finds
support from the medical evidence.
II. Further submission has been made that from the
testimony of the informant PW-1, who is the eye
witness of the case, time place and manner of
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occurrence is established which is further
corroborated by recovery of weapon used by the
accused in the occurrence.
III. Further submission has been made that informant
PW-1 had deposed that accused persons got
weapons from their house and assaulted the
deceased on his head and neck resulting into severe
bleeding injuries on the person of the deceased Fagu.
The injuries present on the vital part of the dead
body i.e. head and neck, severe cut injuries were
found by the doctor PW-7, hence, it is quite
established that intention of the accused persons
was to commit murder of the deceased.
IV. From the testimony of the PW-9 investigating officer
of the case, it is evident that he has recovered
baluwa, stained with blood from the house of the
accused Somra Oraon on the basis of disclosure
made by the accused Somra Oroan.
V. In this case motive is also established that accused
persons were objecting to the construction of the
house by the deceased and his wife and when they
failed to stop the deceased, they committed his
murder.
10. Learned counsel appearing for the State based upon
the aforesaid premise has submitted that the impugned
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judgment does not suffer from any error hence the instant
appeal is fit to be dismissed.
Analysis
11. We have heard learned counsel for the parties,
perused the documents available on record as also the
finding recorded by the learned trial in the impugned
judgment as also gone through the testimonies of the
witnesses as available in the Trial Court Record as also
the exhibits.
12. This Court, before appreciating the argument
advanced on behalf of the parties as also the legality and
propriety of the impugned judgment, deems it fit and
proper to refer the testimonies of the prosecution
witnesses.
Testimony of witnesses:
13. P.W.1 Bariya Urain, is the informant of the case and
wife of deceased Fagu Oraon. She has stated in her
evidence that occurrence is dated 20th, in the previous
month of Holi festival. It was 6 PM and she was at the
door of her house and she was constructing house.
Partition of land had taken place between her husband
and brother-in-law (bhaisur) Baiju Oraon. They were
constructing house in their portion. Her brother-in-law
Baiju Oraon was saying that he will not allow them to
construct the house. Her husband told him that he had
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four children and if he will not construct house how they
will live. Informant further stated on this matter quarrel
took during the day and in the evening Baiju and Somra
Oraon were already prepared. Informant further stated
that first of all scuffle took place between both the
brothers Baiju and Fagu. Thereafter, Somra brought
baluwa and Baiju came with sword. Baiju and Somra cut
the throat of her husband which was slightly attached.
Informant further stated that she tried to escape, then she
was chased and Somra gave baluwa blow which struck on
her left hand from behind. Thereafter, she went to village
chowkidar and he telephoned at the police station, then
officer-in-charge came.
14. In her cross-examination informant has stated that
her house and house of the accused persons both are
facing each other. Partition took place, on paper, in
presence of four villagers. Informant further stated that
there is no house in the vicinity to her house and the
house of the accused and house of Jatru Oraon is at some
distance and in the village, houses are scattered. Her
husband had three brothers, Baiju was eldest then her
husband Fagu and the younger one is Lakhu. Informant
further stated that at the time of occurrence her three
children had gone to Demta and his eldest child live
outside. She was constructing house with her husband
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over the last three months and Eastern wall was ready
and they had to only put tiles (Khapra). Informant further
deposed that tension was between parties for last one
month. She was present in the court yard with her
husband. Accused persons committed murder of her
husband in her presence. Informant further stated Somra
and Baiju both cut her husband. Informant denied the
suggestion that her husband was ill. Informant further
stated that she had stated before the police regarding
partition. Accused had also assaulted her and she was
treated for the injuries. Firstly, accused persons were
empty handed and thereafter, they had brought weapons.
When scuffle was going on between Baiju and her
husband then, in the meantime Somra brought weapons
and thereafter, both committed murder of her husband.
15. PW-2 Dahru Oraon, is the father of the deceased
Fagu Oraon. P.W.-2 has stated in his evidence that about
1 ½ years ago his son Fagu was killed in front of his
house and Somra and Baiju had cut Fagu. P.W-2 further
stated that he asked the accused what they have done,
then they had also threatened him. Baiju is also his son
and accused Somra is son of Baiju. To the court question
he stated that he had not seen the occurrence.
16. Despite repeated calls nobody appeared on behalf of
these accused persons to cross-examine P.W.-2. To court
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question P.W.-2 stated that he had not seen the murder
being committed by Somra and Baiju. He reached soon
after the occurrence and when he reached, he found Fagu
Oraon lying down having injuries on head. Somra had fled
away and Baiju and Hula were there and at that time
there were no weapons in their hands. P.W.-2 further
stated that informant Bariya, is the wife of the deceased
Fagu and she also received injuries in her hand when the
accused blew weapons. Bariya was present at the time of
occurrence but when she was attacked by the weapons
she escaped.
17. PW-3 Fakri Oraon has stated in his evidence that on
20.03.2008, murder took place in his village. P.W.-3
further stated that police had taken his thumb impression
on the inquest report.
18. PW-4 Sunil Lal has stated in his evidence that
incident occurred three years ago. At that time, at 9PM in
the night, he was at his house. P.W.-4 further stated that
he did not know how murder took place. Police had not
seized anything before him. P.W.-4 was declared hostile by
the prosecution.
19. In his cross-examination by the prosecution, he
deposed that he had not stated before the police that on
halla, when he reached at the place of occurrence, Somra
and Baiju were caught and Baiju disclosed that Baluwa
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had been hidden and it was recovered from the house of
Baiju and seizure list was prepared regarding recovery on
which he signed. On his cross-examination by the
defence, P.W.-3 stated that he had not given thumb
impression on any documents and he does not know
anything about the occurrence.
20. PW-5 Sumar Devi, is the mother of the deceased
Fagu Oraon and accused Baiju Oraon. She has stated in
her evidence that her son Fagu had died, but, she does
not know how he died. Fagu Oraon constructed house on
his land and house was ready and it was covered with
asbestos and during the construction of the house nobody
had objected. Baiju and Likhu are brothers of Fagu. She
further stated that quarrel took place between Baiju and
Fagu, in which Fagu died. In her cross-examination she
stated that she did not see assault on Fagu.
21. PW-6 Likhu Orion, is the brother of the deceased.
P.W-6 has stated in his evidence that Fagu had died about
three years ago and at the time of occurrence he was not
present in his house. His sister-in-law Bariya urain told
him that Baiju and Somra had Killed her husband Fagu.
P.W.-6 has identified his signature on the inquest report,
which was marked as Ext.-1. In his cross-examination he
stated that at the time of occurrence he had gone to
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Khelari from where he returned at 5 PM. He further stated
that he had not the occurrence.
22. PW-7 Dr. Chandra Sekhar Prasad, had conducted
the post mortem examination on the dead body of the
deceased Fagu Oraon. P.W.-7 has stated in his evidence
that on 21.03.2008 he was posted as Assistant professor
in department of FMT RIMS Ranchi and at 11.30 hours,
he had conducted the post mortem examination upon the
dead body of the deceased Fagu Oraon son of Sri Dahru
Oraon, resident of Barhaiya PS-Chanho Distt-Ranchi, a
male aged about 40 years. He found following features on
the dead body of the deceased:
General features - The built was average. The rigour
mortis was present all over the body. The abdomen
was slightly distended. There was dry mud over
hands and legs. The cloths were soaked with blood.
Injuries: -
A) Incised wounds -
I) 13 cm x 2 cm x bone deep on left cheek and
adjoining left mastoid region cutting the underline
bone.
II) 13 cm x 2 cm x bone deep on left cheek and
adjoining left lateral neck cutting the soft tissue and
base of skull bone.
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III) 9 cm x 2 cm x soft tissue on left lateral neck
situated 2 cm below the preceding injury.
IV) 9 cm x 2 cm x bone deep on left forehead cutting
the underlying bone and brain matter.
V) 2 cm x ¼ cm x soft tissue on left palm back.
OPINION: -
1.Above noted injuries were anti mortem caused by
heavy sharp cutting weapon.
2.Death was due to above noted injuries.
3.The time since death 6 hours to 24 hours from the
time of post mortem examination.
Doctor further stated that this report was prepared
by him and bears his signature which has been marked
as Ext-2.
23. P.W.-8 is Dr. Kapil Deo Singh, had examined the
injured informant Bariya Urain. P.W.-8 has stated in his
evidence that 20.03.2008, he was posted as medical
officer at PHC, Chanho. On that day at about 9 PM, he
had examined Bariya Urain wife of late Fagu Oraon and
treated her. He found lacerated wound above left elbow on
the upper arm and age of the injuries was within six
hours. Doctor stated that the injury was simple in nature
caused by hard and blunt substance. He identified his
writing in the injury report marked as Ext-3.
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24. P.W.-9 Sub inspector of police Kameshwar Kumar
Singh, is the investigating officer of the case. Investigating
officer has stated in his evidence that on 20.03.2008, he
was officer in charge of Chanho PS. On that day Munu
Tudu SI received information and he went to the place of
occurrence and had recorded fardbeyan of Bariya Urain
wife of the deceased Fagu. On the basis fardbeyan
Chanho PS case no 20/2008 was registered. Investigating
officer further stated endorsement regarding registration
of the case is in his handwriting which has been marked
as Ext.-4. Formal FIR was filled by munsi of the police
station which bears his signature marked as Ext.-4/1.
Investigating officer further stated that he went to village
Barhaiya to the house of deceased and prepared the
inquest report of deceased Fagu Oraon. Inquest report is
in the writing of Munu Tudu which bears his signature.
Inquest report was marked as Ext.-1/1. Investigating
officer stated that he recorded confessional statement of
Somra Oraon which has been marked Ext-5. On pointing
by Somra Oraon, he recovered blood stained baluwa from
the house of Somra Oraon and prepared seizure list. He
also collected blood-soaked earth from the place of
occurrence. This seizure list is in his pen and bears his
signature which he identifies marked as Ext.-6. Both the
accused Somra and Baiju were arrested from the spot.
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PW-9 also identified his signature on the arrest memo
marked as Ext.-7 and Ext.-8. He recorded restatement of
the informant. Investigating officer further stated that
place of occurrence is situated in village Barhaiya which is
situated in the west of the old house of informant and
which is court yard of half constructed house and there
was soil soaked in water (gilawa) and dead body was lying
nearby with blood on the earth. There was injury on the
head of the dead body, on the left-hand palm, below the
left ear and near left eyebrow. Dead body was sent for post
mortem to RIMS and next day accused persons were
remanded by the court. Seized materials was sent to FSL
for examination on 29.03.2008. He received post mortem
report on 30.03.2008. Finding the sufficient materials, he
filed chargesheet against both the accused persons u/s
302, 324 of IPC read with 34 of IPC on 30.04.2008.
25. In his cross-examination, investigating officer stated
that he started investigation of this case at 20 hours on
20.03.2008. He was on patrolling with SI Manu Tudu
when the information was received, then both went to the
place of occurrence. Investigating officer further stated
that courtyard was just outside the house which was
surrounded from four sides. Many villagers were present
near the dead body. Blood-soaked soil was sent for
examination but the examination report is not present
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today in the court. He also sent weapons for examination
to FSL but the report is not today in the court and the
said weapon is also not present in the court. Likhu and
Fakri Oraon were witnesses of the inquest report. He
prepared map of the place of occurrence which he
mentioned in case diary. Wife of deceased was also
injured in the occurrence. The reason behind occurrence
is construction of the new house by the deceased.
26. On behalf of the defence DW-1 Birsa Oraon stated
that he belongs to village- Barhaiya. Occurrence took
place on Holi festival. He was present in the village at that
time. He further stated that his house is about 100 yards
away from the house of the accused. Deceased used to
quarrel with him. His village is surrounded by forest.
Extremist are also present in the forest had connection.
On the date of occurrence, he heard that there was party
in the house of the deceased. On that day he had not seen
the accused persons in their house. He has not seen who
committed murder.
27. DW-2 Shankar Yadav deposed that he knows both
the accused persons. His house is at 200 steps from their
house. Fagu was murdered on the day of Fagua. He was
in his house. Fagu used to quarrel with villagers. There is
extremist in the area with whom deceased had
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connection. He does not know how he was murdered. He
had not seen both the accused on that day.
28. DW-3 Mathura Pahan deposed that occurrence took
place in the year 2008 at the time of Faguwa. His house is
at about 10 steps away from the house of the accused. He
had seen dead body of Fagu. Fagu was arrested in
connection with extremist case. He used to threaten
villagers. He was also in touch with police. He heard visit
of extremist in the village on that day. He cannot say who
committed murder.
29. DW-4 Etwa Lohra resident of Barhiya PS-Chanho,
Distt-Ranchi aged about 65 years deposed that it was day
of Faguwa. He does not remember year. He was not
present in the village on that day. He further stated his
villager Fagu was murdered. His house is about ten steps
away. He further stated Fagu was member of extremist
group and nobody goes to sit with Fagu.
30. Ongoing through the evidence, we find that on the
day of occurrence on 20.03.2008, at about 6.00 PM in the
evening, there was quarrel and scuffle between both the
brothers i.e. Fagu Oraon (deceased) and Baiju Oraon
(appellant), regarding construction of new house, which
was being constructed by the Fagu Oraon, beside his old
house and the same was objected by the Baiju Oraon. In
the meantime, both the appellants came armed with
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sword and baluwa and assaulted Fagu Oraon, with sword
and baluwa, as a result of which Fagu Oraon was killed.
31. Hence, from the evidence of the prosecution
witnesses, the admitted facts which emerges are-
I. Informant side and appellants are members of
same family.
II. Fagu Oraon(deceased) and Baiju
Oraon(appellant) are own brothers and Somra
Oraon(appellant) is the nephew of Fagu
Oraon(deceased).
III. On the day of occurrence Fagu Oraon(deceased)
was constructing new mud house besides his
old house.
IV. Due to construction of new mud house,
tension was prevailing between both the
brothers Fagu Oraon(deceased) and Baiju
Oraon(appellant).
32. Since the learned counsel for the appellants has
contended that even if the entire prosecution story will be
accepted to be true then also no ingredient of Section 302
of the Indian Penal Code is available rather at best it is a
case of under Section 304 (Part-I) of the Indian Penal
Code, therefore, this Court is now delving upon the issue
that whether it can be said to be a case under Section 302
or Section 304 Part-I of the Indian Penal Code.
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33. At this juncture it would be pertinent to see the legal
position and certain judicial pronouncements regarding
applicability of the offence committed under Section 302
or 304 Part-I of IPC.
34. Section 300 of IPC defines murder with reference to
culpable homicide defined in section 299 of IPC. If the
requirements given in clause 1 to 4 of section 300 of IPC
are fulfilled, then, culpable homicide will amount to
murder, but the act shall not fall in exceptions given in
section 300 of IPC. If the act falls within anyone of the
exceptions given in section 300 of IPC, then, it will be
culpable homicide not amounting to murder.
35. Section 300 of Indian Penal Code speaks about
murder under which it has been stipulated that except in
the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done
with the intention of causing death, or, secondly, if it is
done with the intention of causing such bodily injury as
the offender knows to be likely to cause the death of the
person to whom the harm is caused, or thirdly, if it is
done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death,
or fourthly, if the person committing the act knows that it
is so imminently dangerous that it must, in all probability,
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cause death, or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
36. It is, thus, evident that the punishment
under Section 302 of the IPC shall not apply if any of the
conditions mentioned above, are not fulfilled. This means
that if the accused has not intentionally killed someone
then murder cannot be proved. Apart from this, Section
300 of the IPC mentions certain exceptions for offence of
murder which are as follows: -
(i) If a person is suddenly provoked by a third party and
loses his self-control, and as a result of which causes
the death of another person or the person who
provoked him, it won't amount to murder subject to
proviso as provided.
(ii) When a person under the right of private defence
causes the death of the person against whom he has
exercised this right without any premeditation and
intention.
(iii) If a public servant, while discharging his duty and
having lawful intention, causes the death of a person.
(iv) If it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel and
without the offender' having taken undue advantage or
acted in a cruel or unusual manner.
(v) Culpable homicide is not murder when the person
whose death is caused, being above the age of eighteen
2026:JHHC:3738-DB
years, suffers death or takes the risk of death with his
own consent.
37. All these exceptions mentioned above shall come
under purview of Section 304 of IPC and will be termed as
culpable homicide not amounting to murder.
38. Now, coming to the judicial pronouncement, in case
of Arumugam v. State ,(2008) 15 SCC 590, Hon'ble
Apex court has dealt with applicability of Exception 4 of
Section 300 IPC. The relevant paragraph of this judgment
is quoted hereinbelow-
"9. The substantive plea relates to the applicability of Exception
4 of Section 300 IPC. For bringing in its operation it has to be
established that the act was committed without premeditation,
in a sudden fight in the heat of passion upon a sudden quarrel
without the offender having taken undue advantage and not
having acted in a cruel or unusual manner.
"17. The Fourth Exception of Section 300 IPC covers acts
done in a sudden fight. The said Exception deals with a
case of prosecution (sic provocation) not covered by the
First Exception, after which its place would have been
more appropriate. The exception is founded upon the same
principle, for in both there is absence of premeditation.
But, while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4, there is
only that heat of passion which clouds men's sober reason
and urges them to deeds which they would not otherwise
do. There is provocation in Exception 4 as in Exception 1;
but the injury done is not the direct consequence of that
provocation. In fact Exception 4 deals with cases in which
notwithstanding that a blow may have been struck, or
some provocation given in the origin of the dispute or in
whatever way the quarrel may have originated, yet the
subsequent conduct of both parties puts them in respect of
guilt upon equal footing. A „sudden fight‟ implies mutual
provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame be
2026:JHHC:3738-DB
placed on one side. For if it were so, the exception more
appropriately applicable would be Exception 1.
There is no previous deliberation or determination to fight.
A fight suddenly takes place, for which both parties are
more or less to be blamed. It may be that one of them
starts it, but if the other had not aggravated it by his own
conduct it would not have taken the serious turn it did.
There is then mutual provocation and aggravation, and it
is difficult to apportion the share of blame which attaches
to each fighter.
18. The help of Exception 4 can be invoked if death is
caused (a) without premeditation; (b) in a sudden fight; (c)
without the offender's 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. It is to be noted that the „fight‟ occurring in
Exception 4 to Section 300 IPC is not defined in the Penal
Code, 1860. It takes two to make a fight. Heat of passion
requires that there must be no time for the passions to cool
down and in this case, the parties had worked themselves
into a fury on account of the verbal altercation in the
beginning. A fight is a combat between two and more
persons whether with or without weapons. It is not
possible to enunciate any general rule as to what shall be
deemed to be a sudden quarrel. It is a question of fact and
whether a quarrel is sudden or not must necessarily
depend upon the proved facts of each case. For the
application of Exception 4, it is not sufficient to show that
there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender
has not taken undue advantage or acted in cruel or
unusual manner. The expression „undue advantage‟ as
used in the provision means „unfair advantage‟.
19. Where the offender takes undue advantage or has acted
in a cruel or unusual manner, the benefit of Exception 4
cannot be given to him. If the weapon used or the manner of
attack by the assailant is out of all proportion, that
circumstance must be taken into consideration to decide
whether undue advantage has been taken. In Kikar
Singh v. State of Rajasthan [(1993) 4 SCC 238 : 1993 SCC
(Cri) 1156 : AIR 1993 SC 2426] it was held that if the
accused used deadly weapons against the unarmed man
and struck a blow on the head it must be held that using the
blows with the knowledge that they were likely to cause
death, he had taken undue advantage."
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39. In the case of Surain Singh v. State of Punjab,
(2017) 5 SCC 796 at paragraph 13 and 14, the Hon'ble
Apex Court has held as under: -
"13. Exception 4 to Section 300 IPC applies in the absence
of any premeditation. This is very clear from the wordings
of the Exception itself. The Exception contemplates that the
sudden fight shall start upon the heat of passion on a
sudden quarrel. The Fourth Exception to Section 300 IPC
covers acts done in a sudden fight. The said Exception
deals with a case of provocation not covered by the First
Exception, after which its place would have been more
appropriate. The Exception is founded upon the same
principle, for in both there is absence of premeditation.
But, while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4, there is
only that heat of passion which clouds men's sober reason
and urges them to deeds which they would not otherwise
do. There is provocation in Exception 4 as in Exception 1,
but the injury done is not the direct consequence of that
provocation. In fact, Exception 4 deals with cases in which
notwithstanding that a blow may have been struck, or
some provocation given in the origin of the dispute or in
whatever way the quarrel may have originated, yet the
subsequent conduct of both parties puts them in respect of
guilt upon an equal footing. A "sudden fight" implies
mutual provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral
provocation, nor could in such cases the whole blame be
placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no
previous deliberation or determination to fight. A fight
suddenly takes place, for which both parties are more or
less to be blamed. It may be that one of them starts it, but
if the other had not aggravated it by his own conduct it
would not have taken the serious turn it did. There is then
mutual provocation and aggravation, and it is difficult to
apportion the share of blame which attaches to each
fighter.
14. The help of Exception 4 can be invoked if death is
caused (a) without premeditation, (b) in a sudden fight, (c)
without the offenders 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. It is to be noted that the "fight" occurring in
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Exception 4 to Section 300 IPC is not defined in IPC. It
takes two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down and in
this case, the parties had worked themselves into a fury
on account of the verbal altercation in the beginning. A
fight is a combat between two and more persons whether
with or without weapons. It is not possible to enunciate
any general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a
quarrel is sudden or not must necessarily depend upon
the proved facts of each case. For the application of
Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must
further be shown that the offender has not taken undue
advantage or acted in a cruel or unusual manner. The
expression "undue advantage" as used in the provision
means "unfair advantage"."
40. In Pulicherla Nagaraju v. State of A.P., (2006) 11
SCC 444, the Hon'ble Apex Court enumerated some of the
circumstances relevant to finding out whether there was
any intention to cause death on the part of the accused.
The Court observed as under: -
"29. Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution, as
that will decide whether the case falls under Section 302
or 304 Part I or 304 Part II. Many petty or insignificant
matters -- plucking of a fruit, straying of cattle, quarrel of
children, utterance of a rude word or even an
objectionable glance, may lead to altercations and group
clashes culminating in deaths. Usual motives like revenge,
greed, jealousy or suspicion may be totally absent in such
cases. There may be no intention. There may be no
premeditation. In fact, there may not even be criminality.
At the other end of the spectrum, there may be cases of
murder where the accused attempts to avoid the penalty
for murder by attempting to put forth a case that there
was no intention to cause death. It is for the courts to
ensure that the cases of murder punishable under Section
2026:JHHC:3738-DB
302, are not converted into offences punishable under
Section 304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder punishable
under Section 302. The intention to cause death can be
gathered generally from a combination of a few or several
of the following, among other, circumstances: (i) nature of
the weapon used; (ii) whether the weapon was carried by
the accused or was picked up from the spot; (iii) whether
the blow is aimed at a vital part of the body; (iv) the
amount of force employed in causing injury; (v) whether
the act was in the course of sudden quarrel or sudden
fight or free for all fight; (vi) whether the incident occurs by
chance or whether there was any premeditation; (vii)
whether there was any prior enmity or whether the
deceased was a stranger; (viii) whether there was any
grave and sudden provocation, and if so, the cause for
such provocation; (ix) whether it was in the heat of
passion; (x) whether the person inflicting the injury has
taken undue advantage or has acted in a cruel and
unusual manner; (xi) whether the accused dealt a single
blow or several blows. The above list of circumstances is,
of course, not exhaustive and there may be several other
special circumstances with reference to individual cases
which may throw light on the question of intention. ...‟‟
41. This Court, on the basis of the legal position as to
Section 302 and 304 Part I of IPC as discussed
hereinabove as also after taking into consideration the
law laid down by Hon'ble Apex Court in the case
of Arumugam v. State (Supra), Surain Singh v. State
of Punjab (Supra) and Pulicherla Nagaraju v. State of
A.P. (Supra), wherein the difference has been carved out
in between the culpable homicide amounting to murder
and culpable homicide not amounting to murder, is
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proceeding to examine the evidence of the prosecution
witnesses.
42. Reverting to factual aspects of the present case, we
find that informant side and appellants are members of
same family. Fagu Oraon(deceased) and appellant Baiju
Oraon are own brothers and appellant-Somra Oraon is the
nephew of the deceased Fagu Oraon.
43. On going through the evidences of P.W.-1 Bariya
Urain, who is the informant and wife of the deceased Fagu
Oraon and P.W.-5 Sumar Devi, who is mother of both the
Fagu Oraon(deceased) and Baiju Oraon (appellant), this
Court finds that both P.W.-1 and P.W-5 have stated in
their evidence that Fagu Oraon was constructing new
house and for the said reason quarrel had taken place
between the parties.
44. In order to find whether there was premeditation of
mind to commit murder of Fagu Oraon and it was sudden
fight and scuffle and the act was done in a heat of
passion; it would be necessary to see the ingredients of
the exception 4 to Section 300 of IPC.
45. For invoking exception 4 to Section 300 of IPC, four
ingredients must be satisfied, i.e., - (i) it was a sudden
fight; (ii) there was no premeditation; (iii) the act was done
in a heat of passion; and (iv) the assailant had not taken
any undue advantage or acted in a cruel manner.
2026:JHHC:3738-DB
46. Hence, this Court is proceeding to examine whether
the present case falls under exception 4 to Section 300 of
IPC and for this it would be fruitful to go both into the
fardbeyan and evidence of P.W.-1 Bariya Urain, the
informant and wife of the Fagu Oraon (deceased), who is
the sole eye witness to the alleged occurrence.
47. Informant P.W.-1 Bariya Urain has stated in her
fardbeyan that on the date of occurrence they were
constructing new house of mud, on their own share of
land, besides their old house to which her brother-in-law
(bhainsur) Baiju Oraon(appellant) and his family was
opposing. On the day of occurrence informant party had
soaked soil for the purpose of constructing wall, then, her
brother-in-law Baiju Oraon told that he will not allow
them to construct the wall.
48. Now coming to the evidence of to the Informant P.W.-
1 Bariya Urain, this Court finds that P.W.-1 has stated in
her examination-in-chief that land was partitioned and on
the day of occurrence they were constructing house in
their portion. Her brother-in-law Baiju Oraon was saying
that he will not allow them to construct house. Then, first
of all scuffle took place between both the brothers
Baiju(appellant) and Fagu (deceased). Thereafter, Somra
(nephew of the deceased) brought baluwa and Baiju came
2026:JHHC:3738-DB
with sword and assaulted Fagu as a result of which Fagu
died.
49. Further, on going to the cross-examination of
Informant P.W.-1, this Court finds that at Paragraph-6
and paragraph-12 of her cross-examination, informant
has deposed that firstly scuffle had taken place between
Baiju(appellant) and Fagu (deceased). Then, at paragraph-
11 of her cross-examination, informant has specifically
deposed that firstly appellants were unarmed and later,
on appellants came armed with weapon like sword and
baluwa.
50. At this juncture it would be pertinent to reiterate
paragraph-29 the judgment of Pulicherla Nagaraju v.
State of A.P.(supra), wherein Hon'ble Apex court has
enumerated some of the circumstances relevant to finding
any intention, to cause death, on the part of the accused
as that will decide whether the case falls under Section
302 or 304 Part I or 304 Part II.
51. At paragraph-29 of Pulicherla Nagaraju v. State of
A.P.(supra), Hon'ble Apex Court laid down that pivotal
question of intention, shall be decided with care and
caution, as that will decide whether the case falls under
Section 302 or 304 Part I or 304 Part II. In this case
Hon'ble Apex Court explained by giving example that in
many petty or insignificant matters like plucking of a fruit,
2026:JHHC:3738-DB
straying of cattle, quarrel of children, utterance of a rude
word or even an objectionable glance, may lead to
altercations and group clashes culminating in deaths,
and, in such cases usual motives like revenge, greed,
jealousy or suspicion may be totally absent, there may be
no intention and there may be no premeditation and in
fact, there may not even be criminality.
52. In the case at hand also, ongoing both through the
fardbeyan and evidence of prosecution witnesses, this
Court finds that background of the case was construction
of new house by the informant's husband Fagu Oraon
which led to altercation and scuffle between both the
brothers i.e. Faguu Oraon (deceased) and Baiju
Oraon(appellant).
53. The informant side and appellants are members of
same family. Fagu Oraon (deceased) and Baiju
Oraon(appellant) are own brothers and Somra
Oraon(appellant) is the nephew of the deceased Fagu
Oraon and construction of house by the one brother Fagu
(deceased) was objected by the other brother Baiju Oraon
(appellant), which, ultimately resulted in death of Fagu
Oraon.
54. Before proceeding further, it is pertinent to note that
informant P.W.-1 has stated in her evidence that land was
partitioned on paper and they were constructing the
2026:JHHC:3738-DB
house on their own share of land. But, no document of
partition of land has been brought on record to support
that construction of house was being done by the
informant side on their own share of land.
55. This Court, on the basis of evidence of sole eye
witness, who is the informant of the case of the case
[P.W.-1], finds that firstly there was scuffle between both
the brothers Fagu Orao(deceased) and Baiju
Oraon(appellant), as has been stated by the informant
herself in paragraph-6 and paragraph-12 of her cross-
examination. Thereafter, in heat of passion appellants had
assaulted Fagu resulting in death of the Fagu.
56. Further, absence of premeditation between the
accused/appellants can be inferred from the deposition of
the informant P.W.-1, who at paragraph-11 of her cross-
examination, has specifically deposed that firstly accused
appellants were unarmed and just after scuffle
accused/appellants came with the baluwa and sword and
had assaulted her deceased husband. Hence, it is the own
deposition of informant that appellants were not armed
from before and only after the altercation and scuffle
between the parties had taken place regarding issue of
construction of house, appellants came armed with
weapon and killed the deceased, therefore it is evident
2026:JHHC:3738-DB
that there was absence of premeditation on the part of the
appellants.
57. Here, it is pertinent to note that after the killing of
Fagu, both the appellants did not flee away from the place
of occurrence, as investigating officer of the case had
deposed that he had arrested both the appellants/
accused persons Somra and Baiju from the spot.
58. Further, Informant P.W.-1 has stated in her cross-
examination that there is no house in the vicinity to her
house and in the village, houses are scattered. Hence,
both the appellants had ample opportunity to escape from
the place of occurrence, but, both the appellants did not
flee away and so, the appellants had not taken any undue
advantage.
59. In the backdrop the aforesaid discussion and the
judicial pronouncements and the evidence of prosecution
witnesses and also taken into consideration the fact that
there is no premeditation between the appellants, this
Court is of the view that the killing of the deceased was
not intentional and it occurred due to spur of moment
over the matter of construction of new house between
both the brothers Fagu Oraon (deceased) and Baiju Oraon
(appellant), which resulted in altercation and scuffle
between the parties resulting into death of Fagu Oraon.
2026:JHHC:3738-DB
60. Thus, on evaluation of the testimony of the witnesses
and the material available on record, we hold both the
appellants guilty for the offence under Section 304 Part I
of the I.P.C. instead of Section 302 IPC.
61. Accordingly, this Court is of the view that the
judgment impugned convicting the appellants
under Section 302 I.P.C. needs to be interfered with by
modifying it to that of conviction of the appellants
under Section 304 Part-I of the Indian Penal Code.
62. Accordingly, impugned Judgment of conviction and
Order of sentence dated 23rd December, 2016 passed by
learned Additional Judicial Commissioner-V, Ranchi in
Sessions Trial No.209 of 2009 arising out of Chanho P.S.
Case No. 20 of 2008 corresponding to G.R. Case No. 1103
of 2008, is hereby modified and the appellants are held
guilty for the offence punishable under Section 304 Part I
of IPC.
63. So far as the conviction under Section 324 IPC
passed against the accused appellant Somra Oraon
(appellant in Criminal Appeal (D.B.) No. 232 of 2017) is
concerned the same requires no interference.
64. It transpires from the record that the appellants have
remained in jail for more than twelve years, therefore, this
Court is of the considered view that in the facts and
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circumstances of the case, sentence is reduced to period
undergone by the appellants.
65. In consequence thereof, the appellants are directed
to be released forthwith if not wanted in any other case.
66. Accordingly, the instant appeal stands dismissed
with the aforesaid modification in the judgment of
conviction and order of sentence.
67. Let the Lower Court Records be sent back to the
Court concerned forthwith, along with a copy of this
Judgment.
68. Pending Interlocutory Application(s), if any, stands
disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
11/02/2026
Jharkhand High Court, Ranchi
Alankar / A.F.R.
Uploaded on 11.02.2026
