[Cites 6, Cited by 0]

Orissa High Court

Govinda Pujari vs State Of Odisha on 4 December, 2025

Author: S.K. Sahoo

Bench: S.K. Sahoo

                       IN THE HIGH COURT OF ORISSA, CUTTACK

                                             JCRLA No.95 of 2007

       An appeal from judgment and order dated 31.10.2007 passed by
       the Additional Sessions Judge, Malkangiri in Criminal Trial No.29
       of 2007.
                                                 ---------------------

               Govinda Pujari                                 .......                                 Appellant

                                                           -Versus-

               State of Odisha                                .......                                 Respondent



                       For Appellant                              -                Mr. Dillip Ray
                                                                                   Advocate (OHCLSC)

                       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 CHITTARANJAN DASH

-----------------------------------------------------------------------------------------------------------------------

Date of Hearing and Judgment: 04.12.2025

-----------------------------------------------------------------------------------------------------------------------

By the Bench: The appellant Govinda Pujari faced trial in the Court

of learned Additional Sessions Judge, Malkangiri in Criminal Trial

No.29 of 2007 for commission of offence punishable under

section 302 of the Indian Penal Code (hereinafter the 'I.P.C.') on

the accusation that on 27.12.2006 at about 2.00 p.m. at village

Jhatimati colony, Padmagiri under Malkangiri police station, he

committed murder of Parsuram Khora (hereinafter the

'deceased') intentionally.

The learned trial Court, vide impugned judgment and

order dated 31.10.2007, found the appellant guilty of the offence

charged and sentenced him to undergo imprisonment for life.

Prosecution Case:

2. The prosecution case, as per the first information

report (hereinafter the 'F.I.R.') (Ext.3) lodged by Sunamani

Khora (P.W.4), the widow of the deceased on 27.12.2006 before

the Officer in-charge of Malkangiri police station, in short, is that

three years prior to the date of occurrence, her younger

daughter Budhubari Pujari (P.W.5) married to the appellant,

which was a love marriage. Six months after the marriage, both

the appellant and P.W.5 came to the house of the deceased and

stayed there in a separate mess. The appellant was assaulting

P.W.5 frequently which was being opposed to by the deceased as

a father. On the date of occurrence, i.e. on 27.12.2006 at about

2.00 p.m., while the deceased was taking his meal on the

verandah of his house, P.W.5 came there with fish curry for her

father (the deceased). When the appellant came there and

assaulted P.W.5, the deceased interfered and abused the

appellant over this issue. Suddenly, the appellant brought one

tangia (M.O.I) from inside the house of the deceased and

assaulted him. It is further stated in the F.I.R. that the informant

herself, her daughter Budhubari Pujari (P.W.5), the co-villager

Lachhama Kachim (P.W.6) and another Jamuna Suna were

present at the scene of occurrence and witnessed the assault.

The appellant after assaulting the deceased while trying to run

away from the place of occurrence by jumping over the fence,

received some injuries.

On the basis of the oral information given by P.W.4,

P.W.7 Krushna Madkami scribed the written report and it was

presented before the Officer in-charge of Malkangiri police

station, who registered Malkangiri P.S. Case No.177 dated

27.12.2006 under section 302 of I.P.C. against the appellant.

After registration of the case, the Officer-in-charge directed

P.W.10 Prakash Kumar Ratha, S.I. of Police attached to

Malkangiri police station to investigate into the case.

The I.O. (P.W.10) took up investigation of the case,

examined the informant and other witnesses, visited the spot,

prepared the spot map, held inquest over the dead body of the

deceased, prepared the inquest report (Ext.9), sent the dead

body of the deceased to District Headquarters Hospital,

Malkangiri for post mortem examination, seized sample earth

and blood stained earth on the same day as per seizure list

Ext.9, seized the weapon of offence i.e. tangia (M.O.I) from the

spot as per seizure list Ext.2. On 29.12.2006, P.W.10 arrested

the appellant, seized the wearing apparels of the appellant and

prepared the seizure list (Ext.10). On the same day, he also

seized the wearing apparels of the deceased at the police

station, which were produced by the constable after post-

mortem examination. The appellant was sent to the District

Headquarters Hospital, Malkangiri for medical examination. The

I.O. also sent the weapon of offence to the Medical Officer for

examination and opinion, seized the sample blood, sample

saliva, nail clippings and the command certificate as per seizure

list Ext.12. In the meantime, P.W.10 received the opinion of the

doctor to the query made by him and forwarded the appellant to

the Court on 29.12.2006. P.W.10 sent the exhibits to R.F.S.L.,

Berhampur on 14.02.2007 through the learned S.D.J.M.,

Malkangiri and on completion of investigation, P.W.10 submitted

charge sheet under section 302 of the I.P.C. against the

appellant.

Framing of Charges:

3. After submission of the charge sheet, complying with

the due committal procedure, the case was committed to the

Court of Session, where the learned trial Court framed the

charge against the appellant as aforesaid. As the appellant

pleaded not guilty and claimed to be tried, the sessions trial

procedure was resorted to establish his guilt.

Prosecution Witnesses & Exhibits:

4. In order to prove its case, the prosecution examined

as many as eleven witnesses.

P.W.1 Ranjan Kumar Biswal and P.W.2 Karunkar

Dharua, who were the Constables attached to Malkangiri police

station, are the witnesses to the seizure of wearing apparels of

the deceased as per seizure list Ext.1.

P.W.3 Damodar Sagaria was the Grama Rakhi of

village Bailajari under Malkangiri police station and he is a

witness to the seizure of blood stained tangia as per seizure list

Ext.2.

P.W.4 Sunamani Khora, who is the widow of the

deceased and P.W.5 Budhubari Pujari, who is the daughter of the

deceased and wife of the appellant are the eye witnesses to the

occurrence and they have supported the prosecution case.

P.W.6 Lachhama Kachimu, who is a neighbour of the

deceased, is another eye witness to the occurrence. She stated

that on the date of occurrence, she found that the appellant

dealt axe blows to the neck and head of the deceased and due to

assault, the throat of the deceased was cut. She further stated

that due to the assault, the deceased sustained bleeding injuries

on his neck and head and he died instantaneously.

P.W.7 Krushna Madkami is the scribe of the plain

paper F.I.R. (Ext.3), who proved the same.

P.W.8 Arjuna Kachim is a witness to the inquest and

he proved the inquest report (Ext.4).

P.W.9 Dr. Rakesh Kumar Ludam, Asst. Surgeon,

District Headquarters Hospital, Malkangiri, conducted post

mortem examination over the dead body of the deceased and

proved his report Ext.5 and the query report Ext.6. He opined

that the injuries found on the body of the deceased were

sufficient in the ordinary course of nature to cause death. All the

injuries were ante mortem in nature. He further opined that the

cause of death was due to haemorrhage and due to the injuries

on the neck.

P.W.10 Prakash Kumar Ratha, who was working as

the Officer in-charge of Malkangiri Police Station, is the

investigating officer of this case.

P.W.11 Dr. Tanmaya Tanaya Khamari, who was the

Medical Officer attached to District Headquarters Hospital,

Malkangiri, treated the appellant on police requisition and found

some injuries on the person of the appellant. He proved his

report as per Ext.11.

The prosecution exhibited thirteen documents. Ext.1

is the seizure list in respect of the wearing apparels of the

deceased, Ext.2 is the seizure list in respect of seizure of tangia

(M.O.I), Ext.3 is the plain paper F.I.R., Ext.4 is the inquest

report, Ext.5 is the post mortem examination, Ext.6 is the report

of P.W.9, Ext.7 is the dead body challan, Ext.8 is the command

certificate, Ext.9 is the seizure list in respect of sample earth and

blood stained earth, Ext.10 is the seizure list in respect of

seizure of wearing apparels of the appellant, Ext.11 is requisition

for medical examination of the appellant to DHH, Malkangiri,

Ext.12 is the seizure list in respect of seizure of sample blood,

smple saliva, nail clippings and command certificate, Ext.13 is

the copy of the letter for sending the exhibits to RFSL,

Berhampur through S.D.J.M, Malkangiri.

The prosecution proved one material object. M.O.I is

tangia.

Defence Plea:

5. The defence plea of the appellant is one of denial and

he specifically pleaded that a false case has been foisted against

him.

Findings of the trial Court:

6. The learned trial Court, after assessing the oral as

well as the documentary evidence, came to hold that from the

medical evidence adduced by P.W.9 and the injuries sustained by

the deceased as per the post mortem report findings, it can be

said that the deceased died a homicidal death. The learned trial

Court accepted the evidence of three eye witnesses, i.e. P.W.4,

P.W.5 and P.W.6 and came to hold that the story narrated in the

F.I.R. (Ext.5) gets ample corroboration from the oral evidence of

P.W.4 and P.W.5 and from their evidence, the prosecution has

successfully proved the motive on the part of the appellant to

commit the crime. The learned trial Court further held that the

statements given by P.Ws.4 & 5 get fully corroboration from the

evidence of P.W.6 and the statements of these three witnesses

regarding the manner of occurrence inspires confidence to

believe the prosecution story. The evidence of the doctor

(P.W.11), who proved the injury report of the appellant clearly

revealed that the prosecution has successfully proved and

explained the circumstances under which the appellant sustained

injuries on his person. It is further held that the direct testimony

of P.Ws.4, 5 and 6 is also consistent with the medical evidence

and in view of such direct evidence available on record coupled

with the medical evidence, it can be said that the prosecution

has proved the charge under section 302 of I.P.C. against the

appellant beyond all reasonable doubt.

Contention of the Parties:

7. Mr. Dillip Ray, learned counsel appearing for the

appellant argued that there was no motive on the part of the

appellant to assault the deceased and the prosecution has not

explained the injuries sustained by the appellant and it appears

from the evidence on record that the occurrence happened all on

a sudden and the appellant had not come to the spot with

premeditation or pre-planning to commit any crime and even he

was not armed with any weapon and it appears that a sudden

quarrel ensued between the deceased and the appellant when

the appellant opposed to the conduct of his wife (P.W.5) in

coming with fish curry to serve to her father (deceased) and

even though the appellant brought the axe from the house of the

deceased and dealt some blows but since it was a case of grave

and sudden provocation, it cannot be said that the offence under

section 302 of I.P.C. is made out and in the factual scenario, the

act of the appellant would fall under the exceptions to section

300 of I.P.C. and it may be at best a case under section 304

Part-I of I.P.C. even if direct evidence of the eye witnesses like

P.Ws.4, 5 and 6 as well as the doctor (P.W.9), who conducted

post mortem examination is accepted. Learned counsel further

argued that the appellant was taken into judicial custody on

29.12.2006 and he was not granted bail during pendency of trial.

However, after he preferred this JCRLA, he was directed to be

released on bail by this Court on 28.09.2012 but released from

custody much after and since the occurrence in question took

place in the year 2006 and almost nineteen years have elapsed

in the meantime, even if this Court held the appellant guilty

under section 304 Part-I of I.P.C. altering the conviction from

section 302 of I.P.C., the sentence be reduced to the period

already undergone. He has placed reliance on the decisions of

this Court in the cases of Budhimanta Naik -Vrs.- State of

Odisha reported in 2014 (Supp.-II) Orissa Law Reviews

382 as well as the decisions of the Hon'ble Supreme Court in the

cases of Sudhakar -Vrs.- State of Maharashtra reported in

(2012) 53 Orissa Criminal Reports (SC) 1144 and

Prabhakar Vithal Gholve -Vrs.- State of Maharashtra

reported in (2016) 64 Orissa Criminal Reports (SC) 449

Mr. Jateswar Nayak, learned Additional Government

Advocate, on the other hand, supported the impugned judgment

and submitted that the evidence of three eye witnesses i.e.

P.Ws.4, 5 and 6 have not been shaken in the cross-examination

and their version gets corroboration from the medical evidence

adduced by P.W.9 and the weapon of offence (M.O.I) was

produced before the doctor (P.W.9), who examined the same

and opined that the injuries on the deceased might have been

caused by such weapon. Learned counsel further argued that

even though some suggestions have been given to the doctor

(P.W.9) that on account of fall on the edge side of the axe, the

deceased sustained injuries, but the Medical Officer (P.W.9) in

the cross-examination has denied that the injuries found on the

person of the deceased could be possible by fall on the edge

portion of the tangia. Learned counsel further submitted that the

doctor (P.W.11) noticed some simple injuries on the person of

the appellant and he opined that such injuries might be caused

by falling down while running. Learned counsel further submitted

that the witnesses to the occurrence have stated that while the

appellant was fleeing away from the spot by running, he fell

down on the fence and sustained some injuries and therefore,

the injuries sustained by the appellant has been explained by the

prosecution. He further argued that the plea, which has been

suggested to the witnesses relating to the injuries sustained by

the appellant is also not consistent and such plea has also not

been taken by the appellant in the accused statement.

Therefore, no importance can be attached to such suggestions,

which has been given by the learned defence counsel. Learned

counsel further submitted that since the appellant brought the

axe (M.O.I) from the house of the deceased and assaulted him

by using the sharp side of the weapon and as many as four

blows were dealt on the vital parts of the body like head and

neck, it can be said that by causing such injuries, the appellant

intended to cause the death of the deceased and there is

absence of provocation given by the deceased to the appellant

and thus the appellant cannot get the benefit of the exceptions

under section 300 of I.P.C. and therefore, the learned trial Court

is quite justified in finding the appellant guilty under section 302

of I.P.C.

Whether the deceased met with a homicidal death?:

8. Adverting to the contention raised by the learned

counsel for the respective parties, let us find out how far the

prosecution has established that the deceased met with a

homicidal death.

Apart from the inquest report (Ext.4), the evidence

of the doctor (P.W.9) is very much material and he has stated

that on 28.12.2006, he was posted as Asst. Surgeon in District

Headquarters Hospital, Malkangiri and on police requisition, he

conducted autopsy over the dead body of the deceased and

noticed the following external and internal injuries:

External injuries

(i) Incised wound of 3" x 2" x 1" over left shoulder;

(ii) Incised wound of 3" x 2" x 1" at the centre of the neck;

(iii) Incised wound of 2" x 2" x 1/2" at right later side of neck;

(iv) Lacerated wound of size of 4" x 1" over parietal part of head.

Internal injuries

(i) On dissection the larynx incised at middle;

(ii) Fracture of thyroid cartilage of larynx.

On dissection, he opined that the above injuries were

ante mortem in nature and the death was homicidal and injuries

were sufficient in the ordinary course of nature to cause death.

He further opined that the cause of death of the deceased was

due to haemorrhage and due to injuries over the neck.

The doctor (P.W.9) also examined the axe (M.O.I),

which was sent to him by the I.O. and opined that the injuries

found on the body of the deceased might be caused by such

weapon of offence and further opined that the injuries sustained

were sufficient in ordinary course of nature to cause death.

As rightly pointed out by the learned counsel for the

State, though suggestions were given to the eye witnesses that

on account of fall on the tangia, the deceased sustained injuries,

but the witnesses specifically denied the same in the cross

examination. The learned defence counsel also suggested to the

doctor that the injuries sustained by the deceased could be

possible on account of fall on the edge portion of the tangia, but

he has denied the same.

In view of such medical evidence, we are of the view

that the learned trial Court has rightly come to the conclusion

that the death of the deceased was homicidal in nature. In fact,

Mr. Ray, learned counsel for the appellant has not disputed the

homicidal death of the deceased.

Whether the versions of the eye witnesses are reliable

and trustworthy?:

9. Now coming to the direct evidence available on

record relating to the assault on the deceased, the evidence of

P.Ws.4, 5 and 6 are very much relevant.

P.W.4 is none else than the informant in the case,

who is also the widow of the deceased and she stated that the

appellant was her son-in-law, who married her daughter

Budhubari Pujari (P.W.5). She stated that both the appellant and

P.W.5 were staying separately from them in a house, which was

very nearer to their house and the occurrence took place at

about 2.00 p.m. and at that time P.W.5 was coming to her house

with fish curry to serve to the deceased and on seeing this, the

appellant came to her house with axe (tangia) and gave

successive blows on the head and neck of the deceased for which

the deceased died. She further stated that P.Ws.5 and 6 were

present at the time of occurrence. She further stated that after

killing the deceased, the appellant fled away from the spot by

running and while so running, the appellant fell down and

sustained injuries on his leg. This witness also identified the axe

(M.O.I) to be the weapon of offence and he has stated that the

appellant used to assault P.W.5 and they were quarrelling each

other. In the cross-examination, however, P.W.4 has stated that

the appellant at the relevant point of time brought the axe from

their house and dealt blows on the deceased and at the relevant

time, the deceased was abusing the appellant. Suggestions have

been given to P.W.4 by the learned defence counsel that the

deceased tried to assault the appellant and there was a quarrel

between the appellant and the deceased and due to fall on the

axe, the deceased died and that the deceased assaulted the

appellant as a result of which the latter sustained injuries on his

legs, but P.W.4 denied all such suggestions. In fact, the

suggestions regarding the occurrence, which have been given to

P.W.4 as well as other two eye witnesses by the learned defence

counsel are completely different and no such plea has been

taken by the appellant in his statement recorded under section

313 of Cr.P.C. The specific suggestion given to P.W.4 that on

account of fall on the axe, the deceased died was also put to the

doctor, who conducted post mortem examination, but the doctor

has specifically stated that the injuries noticed at the time of

post mortem examination could not be possible by fall on the

edge portion of the tangia (M.O.I). The evidence of P.W.4 has

thus remained unchallenged and except the contradiction in

examination in-chief where she stated that the appellant brought

the axe with him while coming to the spot, but in cross-

examination, she stated that the appellant brought the axe from

the house of the deceased, there is no other contradictions or

material to disbelieve the evidence of P.W.4.

P.W.5 Budhubari Pujari, who was the daughter of the

deceased and wife of the appellant, stated that her marriage

with the appellant was solemnized about three years back and

they were staying separately adjacent to the house of her

parents and after marriage, the appellant under the influence of

liquor, used to assault and quarrel with her. She further stated

that on the date of occurrence, at about 2.00 p.m., she was

going to her parents' house with fish curry for her father

(deceased) and the appellant arrived there and when the

deceased asked the appellant as to why he was quarrelling with

P.W.5, the appellant brought out one axe from the house of the

deceased and dealt blows to the deceased on his neck and head

and due to the assault, the deceased died instantaneously. She

further stated that after committing the murder, the appellant

left the spot by running and while so running, the appellant fell

down and sustained some injuries. She specifically stated that

P.W.6 witnessed the occurrence at the relevant time. In the

cross-examination, she stated that she alone came to the house

of her parents with fish curry and her husband (appellant)

arrived at her father's place being unarmed. Though suggestions

have been given that the deceased chased the appellant to

assault by means of axe, but P.W.5 denied such suggestion.

Nothing has been brought out in cross-examination of P.W.5 to

disbelieve the same.

Though contentions were raised by the learned

counsel for the appellant that P.Ws.4 and 5 were related to the

deceased and likely to speak falsehood, but law is well settled

that mere relationship with the deceased cannot be a ground to

doubt the testimony of a witness.

The evidentiary value of a related witness can be well

deciphered from the ruling of the Hon'ble Supreme Court in the

case of Dalip Singh -Vrs.- State of Punjab reported in

(1953) 2 Supreme Court Cases 36. The following observation

made by His Lordship Hon'ble Mr. Justice Vivian Bose is worth its

weight in gold:

"24......Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

The same principle has, more or less, been reiterated

by the Hon'ble Apex Court in the case of Laltu Ghosh -Vrs.-

State of W.B. reported in (2019) 15 Supreme Court Cases

344 in the following words:

"12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested"

witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he

or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused."

The related witnesses are not likely to spare the real

culprit and implicate the innocent persons. In the case in hand, it

cannot be lost sight of the fact that P.Ws.4 and 5 were not only

related to the deceased but also to the appellant and there was

no earthly reason to falsely implicate the appellant. When there

was nothing to gain by making false accusation against the

appellant, the evidence of P.Ws.4 and 5 can be accepted as it is

consistent, trustworthy and inspires confidence.

A contention was raised that the evidence of P.W.6,

who is an eye witness, cannot be accepted and her presence at

the spot at the time of occurrence seems to be doubtful. We are

not inclined to accept such contention inasmuch as not only in

the F.I.R., but also in the evidence of P.W.4 and P.W.5, there is

specific mention that at the time of occurrence, P.W.6, who was

their neighbour, was present. P.W.6 has specifically stated that

she saw the appellant dealing axe blows on the neck and head of

the deceased and due to the assault, the throat of the deceased

was cut and the deceased sustained bleeding injuries and died

instantaneously. In the cross-examination, she stated that at the

relevant time, he was returning from the market and found the

appellant assaulting the deceased by giving successive axe

blows. She further stated that except the assault, she could not

say if there was any disturbance between the appellant and the

deceased. Nothing has been brought out in the cross-

examination of P.W.6 to disbelieve her evidence.

Therefore, if we analyse the evidence of all these

three eye witnesses, we find that their evidence is consistent

that it was the appellant, who dealt successive blows by means

of axe (M.O.I) on the head and neck of the deceased as a result

of which the death of the deceased had taken place

instantaneously. P.W.4 and P.W.5 have also stated that after the

assault, the appellant fled away from the spot by running and in

course of which, he fell down and sustained injuries. The doctor

(P.W.11), who examined the appellant on police requisition,

noticed some bruises and abrasions on his person and

specifically opined that the injuries were simple in nature and

might have been caused by falling down while running.

In view of the available materials on record, it can be

said that on account of assault by the appellant, the death of the

deceased had taken place.

Whether the case comes within the purview of culpable

homicide not amounting to murder?:

10. Now coming to the submission raised by Mr. Ray,

learned counsel for the appellant that in the factual scenario, it

cannot be said that the case falls within the ambit of section 302

of I.P.C. and it appears that it may be a case under section 304

Part-I of I.P.C., we find sufficient force in such submission.

It appears that the occurrence happened all on a

sudden and it was afternoon time when P.W.5 had come with

fish curry to serve the same to her deceased father and the

appellant came and quarrelled with P.W.5 over this issue. Since

there was no good feeling between the appellant and the

deceased and perhaps the fish curry was brought by P.W.5 to be

served to the deceased without the consent of the appellant, that

might have been the reason for the appellant to raise objection.

It appears that when the appellant was quarrelling with P.W.5, at

that time, the deceased interfered and asked the appellant as to

why he was quarrelling with P.W.5. That might have triggered

the situation, for which the appellant, who had not come to the

spot with any weapon, suddenly brought out one axe from the

house of the deceased and dealt some blows on the neck and

head and ran away from the spot. There appears to be no

premeditation on the part of the appellant to assault the

deceased father-in-law.

In the case of Budhimanta Naik (supra) on which

reliance has been placed by the learned counsel for the

appellant, it is held as follows:

"7. Undisputedly, the death of the deceased was homicidal in nature. From the evidence of P.Ws.1 and 2 it is clear that despite being the father, the deceased abused the appellant and accused Achuta in filthy language and thereafter, the present appellant dealt a blow on the head of the deceased, as a result of which the deceased fell down on the ground. The appellant gave successive blows. The occurrence took place at 11.30 A.M. and the F.I.R. was lodged at 5.30 P.M. Thereafter, the police came and shifted the injured (deceased) to the hospital. While the deceased was under

treatment, he succumbed to the injuries. P.W.7 (doctor) also specifically stated that injury nos.1 and 3 were grievous in nature and injury nos.2 and 4 were simple in nature. He also admitted

that if immediate treatment would have been given to the deceased, there was chance of survival. From the above, it is crystal clear that the appellant had no intention or motive to kill the deceased. It appears that on account of grave and sudden provocation due to filthy abuse by the father, the appellant lost his balance and assaulted the deceased causing his death.

Thus, the present appellant on the heat of passion gave blows to the deceased. This aspect of the matter has been lost sight of by the learned trial court. P.W.9 has stated that after the occurrence the deceased got up and went to the field with a bleeding head. P.W.7 has specifically stated that if immediate treatment would have been given to the deceased, there was chance of survival. The deceased was shifted to the hospital after 8 to 10 hours of the occurrence.

From the above, this Court concludes that this case is not coming under Section 302, IPC and at best it can be a case under Part-I of Section 304, IPC. Accordingly, this Court converts it to a case under Section 304 Part-1, IPC and sentences the appellant to undergo R.I. for ten years."

In the case of Prabhakar Vithal Gholve (supra), it

has been held as follows:

"6. Taking an overall broad view of the facts noticed above, it is abundantly clear that the occurrence originated on account of some minor grievance against a lady that she did not convey a telephonic message to the Appellant. The Appellant thereafter came back to his house. For reasons which are not very clear, the juvenile offender Balu went to the house of the prosecution party and allegedly committed assault for which he was overpowered. On his cries, the Appellant and four others rushed with sticks. The Appellant, as per medical evidence, sustained two injuries by hard and blunt substance and some persons of the prosecution party also received injuries on account of assault by the accused persons. The Appellant as well as juvenile offender Balu used stick to cause injuries on the head of the deceased who died due to such assault. It is evident, as noticed earlier, that there was no motive, alleged or proved, for the occurrence of assault upon the deceased. In the given facts and scenario, it can be safely inferred that there was no intention on the part of the accused persons to cause death. However, the injuries on head did prove fatal and knowledge of such effect of the injuries can be fastened against the Appellant.

7. In the facts and circumstances noted above, there appears merit in the submission advanced by learned Counsel for the Appellant that in view of Exception 1 or Exception 4 in Section 300 of the Indian Penal Code the case made out against the Appellant is that of culpable homicide not amounting to murder. It would be natural for the family members of juvenile offender Balu on hearing his cries, to rush for his help and when injury on the Appellant has also been proved there is sufficient material to infer the reasonable possibility of a grave and sudden provocation. The assault on the deceased, in absence of intention to cause death could be on account of sudden fight without premeditation, in the heat of passion and upon a sudden quarrel. We therefore feel persuaded to and do set aside the conviction of the Appellant Under Section 302 Indian Penal Code and substitute the same with conviction Under Section 304 Part I of the Indian Penal Code."

In the case of Sudhakar (supra), it has been held as

follows:

"9. Going by the narration of the facts disclosed, there was nothing to suggest that there was any premeditation in the mind of the Appellant to cause the death of the deceased. Taking into account the statement of P.W. 1 that the

deceased was under the influence of liquor and that whenever he was under the influence of liquor he used to throw the household articles and create a ruckus in the house was a factor which created a heat of passion in the Appellant who as a father was not in a position to tolerate the behaviour of his son whose misbehaviour under the influence of liquor was the torment. Therefore, unmindful of the consequences, though not in a cruel manner the Appellant inflicted a single blow which unfortunately caused severe damage to the vital organs resulting into the death of the deceased. In such circumstances, as rightly contended by Learned Counsel for the Appellant, we are convinced that the offence alleged and as found proved against the Appellant can be brought under the First Part of Section 304 of Indian Penal Code. Accordingly, while affirming the conviction of the Appellant, we are only altering the same as falling under Section 304 Part I of Indian Penal Code in place of Section 302 of Indian Penal Code."

In the case of Surinder Kumar -Vrs.- Union

Territory, Chandigarh reported in A.I.R. 1989 Supreme

Court 1094, it has been held that to invoke Exception 4 to

Section 300 of I.P.C., four requirements must be satisfied,

namely, (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. The cause of the quarrel is not relevant nor is it

relevant who offered the provocation or started the assault. The

number of wounds caused during the occurrence is not a decisive

factor but what is important is that the offence must have been

sudden and unpremeditated and the offender must have acted in

a fit of anger. Of course, the offender must not have taken any

undue advantage or acted in a cruel manner. Where, on a

sudden quarrel, a person in the heat of the moment picks up a

weapon which is handy and causes injuries, one of which proves

fatal, he would be entitled to the benefit of this exception

provided he has not acted cruelly. In the said case, though

number of injuries was caused to the deceased on the vital part

of the body, the Hon'ble Supreme Court taking into account the

factual scenario and provocation part, has altered the conviction

from one under section 302 of I.P.C. to section 304 Part-I of

I.P.C.

Section 299 of I.P.C. which deals with 'culpable

homicide' is divided into three parts. The first part refers to the

'act by which the death is caused by being done with the

intention of causing death'. That part corresponds to the first

clause of Section 300 of I.P.C. The second part of Section 299 of

I.P.C. speaks of the 'intention to cause such bodily injury as is

likely to cause death'. This has corresponding provisions in

clauses 'secondly' and 'thirdly' of Section 300 of I.P.C. Section

304 Part I of I.P.C. covers cases which by reason of the

Exceptions under Section 300 I.P.C. are taken out of the purview

of clauses (1), (2) and (3) of Section 300 I.P.C., but otherwise

would fall within it, and also cases which fall within the second

part of Section 299 of I.P.C. but not within clauses (2) and (3) of

Section 300 of I.P.C. The third part of Section 299 of I.P.C. i.e.

'with the knowledge that he is likely by such act to cause death'

corresponds to "Fourthly" of Section 300 of I.P.C. Section 304

Part II of I.P.C. covers those cases which fall within the third

part of Section 299 of I.P.C. but do not fall within the fourth

clause of Section 300 of I.P.C.

Exception 1 to section 300 of I.P.C. says, inter alia,

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. This exception is no doubt subject to certain

limitations, like the provocation is not sought or voluntarily

provoked by the offender as an excuse for killing or doing harm

to any person. As per the explanation to the Exception 1,

whether the provocation was grave and sudden enough to

prevent the offence from amounting to murder is a question of

fact. Grave and sudden provocation is a mixed question of law

and facts. Exception 4 to section 300 of I.P.C. states that

culpable homicide is not murder 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.

             The      Hon'ble   Supreme    Court   in   the     case    of

Anbazhagan         -Vrs.-   The    State   Represented          by     the

Inspector of Police reported in 2023 LiveLaw (SC) 500,

further provide valuable guidance as follows -

"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-

(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused....

(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the I.P.C., the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part I of Section 304 of the I.P.C., if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the I.P.C. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the I.P.C. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the I.P.C., may be attracted but not any of the clauses of Section 300 of the I.P.C. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.

(3) To put it in other words, if the act of an accused person falls within the first two clauses

of cases of culpable homicide as described in Section 299 of the I.P.C. it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'."

A man is considered to be in a state of grave and

sudden provocation when, due to unexpected and serious act or

event, he is temporarily deprived of his power of self-control and

acts on the impulse of the moment. The legal concept serves as

a mitigating factor in homicide cases, potentially reducing a

murder charge to culpable homicide not amounting to murder.

Grave and sudden provocation varies from person to person and

situation to situation. Courts use an objective ''reasonable

person'' test (not specific person) to see if normal self-control

would be lost, meaning the provocation must be severe,

unexpected, and the reaction immediate, with no time for cooling

off, to potentially reduce murder to culpable homicide.

In the factual scenario, we find that the deceased

and the appellant were related to each other as father in-law and

son in-law, however the relationship between the two was not

that good. The reason seems to be that the appellant under the

influence of liquor used to quarrel with P.W.5 and assault her

which was opposed to by the deceased. There seems to be no

premeditation on the part of the appellant to assault the

deceased on that particular day. The occurrence happened all on

a sudden when P.W.5 came to her parents' place with fish curry

to serve to her father (deceased) perhaps without the consent of

the appellant and when the appellant opposed to his wife

(P.W.5), the deceased interfered with it and quarrelled with the

appellant, which might have been the cause of grave and sudden

provocation and it seems that the appellant who was unarmed,

acted in a fit of anger and being deprived of power of self-

control, dealt blows by bringing the axe from the house of the

deceased and left the place.

Conclusion:

11. In view of the foregoing discussions, we are of the

humble view that Exception I of section 300 of the I.P.C. would

be squarely applicable to this case and the case comes under

culpable homicide not amounting to murder, but taking into

account the nature of attack, the nature and type of weapon

used and the nature of the injuries caused to the deceased, we

find that there was intention on the part of the appellant to

cause the death of the deceased. Therefore, the conviction of the

appellant is altered from section 302 of the I.P.C. to one under

section 304 Part-I of the I.P.C.

It appears from the record that the appellant was

taken into judicial custody in connection with this case on

29.12.2006. He was never released on bail in the trial Court,

however he was granted bail by this Court vide order dated

28.09.2012. The report of the Senior Superintendent, Circle Jail,

Koraput dated 25.04.2025 reveals that the appellant was

released from jail custody on 14.09.2019 and thus, he had

already undergone more than twelve years, and eight months of

sentence by the time of release. Pursuant to the order dated

02.12.2025, learned counsel for the State has obtained report,

which reveals that the appellant has got no criminal antecedent

and he is now working in a hotel near Malkangiri bus stand. In