K. P. MOHAPATRA, J. ( 1 ) THIS appeal is directed against the judgment passed by the learned Additional Sessions Judge, Ganjam, Berhampur convicting the appellant for an offence under Section 302 of Indian Penal Code For committing patricide and sentencing him to undergo imprisonment for life. ( 2 ) DECEASED Lula Sahu was the father of the appellant who is the brother of P. W. 1. Of the two brothers, the appellant was elder. P. W. 1 was given in adoption to the elder brother of the deceased. Both the brothers were living separately in adjoining houses. In the year 1977, the deceased had executed a will in favour of P. W. 1 bequeathing his share of ancestral properties in favour of the latter for which the appellant became dissatisfied. Dissension brewed culminating in civil litigation between the appellant and the deceased, which came to the High Court and so there was no love lost between them. In view of the ill feeling the deceased used to live with P. W. 1. On 4-7-1982 in the evening the appellant returned home with his bullock cart. He unyoked the bullocks, pushed aside the cart of P. W. 1 where it was placed in front of the house and kept his own. The deceased at that time was sitting on the front verandah of the house along with P. W. 2. When he saw the action of the appellant, he protested. The appellant did not take the protest kindly and so there was a quarrel between them. In course of the quarrel, the appellant became angry, brought out a Dhipei (a heavy implement which is 'y' shaped and is made of wood kept for support of the bullock cart when bullocks are unyoked) from the cart and dealt four to five blows on the head of the deceased. As a result he fell down unconscious on the ground. P. W. 1 took the injured first to Digapahandi Hospital where he was given preliminary treatment and then he took him to M. K. C. G. Medical College Hospital, Berhampur. On arrival he was examined and found dead. So P. W. 1 brought him back to Digapahandi hospital where the Investigating Officer came. So First Information Report. (Ext. 1) was lodged. During investigation, the dead body was sent for postmortem examination and after investigation was over, charge sheet was submitted against the appellant. On arrival he was examined and found dead. So P. W. 1 brought him back to Digapahandi hospital where the Investigating Officer came. So First Information Report. (Ext. 1) was lodged. During investigation, the dead body was sent for postmortem examination and after investigation was over, charge sheet was submitted against the appellant. ( 3 ) THE defence of the appellant in the Trial Court was that after he returned home at the time and on the date of occurrence, he found that the cart of P. W. 1 was kept at the place where he usually kept his own. Therefore, he pushed away the cart of his brother and placed his own. The deceased was sitting on the front verandah of the house at that time. He rushed at the, appellant and two blows by means of a walking stick. While he was aiming a third stroke, the appellant pushed him aside as a result of which the deceased fell down on stones lying on the ground. He specifically denied to have assaulted his father. ( 4 ) THE learned Additional Sessions Judge believed the evidence of the eye-witnesses P. Ws. 1 and 2 and recorded the conviction and sentence. ( 5 ) P. W. 5, the Assistant Professor of F. M. and of M. K. C. G. Medical College Hospital, Berhampur conducted the post-mortem examination of the dead body of the deceased on 5-7-82 and found three external head injuries, one swelling and an abrasion and as many as seven internal injuries, all corresponding to the head injuries. In his opinion, the injuries were ante- mortem in nature and would have been caused by a heavy and blunt weapon. Death was on account of injury to the brain, a vital organ resulting in intracranial haemonhage. He saw the Dhipei (M. O. I) and further opined that both the external and internal injuries could be caused by it (vide post-mortem report, Ext. 9 and further report, Ext. 10 ). In view of the above evidence there is little doubt that the death of the deceased was homicidal. This fact was not challenged in appeal. ( 6 ) MR. B. Sahu, learned counsel appearing for the appellant placed the evidence of P. Ws. 9 and further report, Ext. 10 ). In view of the above evidence there is little doubt that the death of the deceased was homicidal. This fact was not challenged in appeal. ( 6 ) MR. B. Sahu, learned counsel appearing for the appellant placed the evidence of P. Ws. 1 and 2, the father and son respectively in extenso and urged that there was no premeditation on the part of the appellant to assault by means of the Dhipei and to do away with the life of his father although on account of litigation there was ill feeling between them. There was sudden quarrel between them on account of placement of the cart and in the heat of passion and blinded by rage the appellant suddenly assaulted the deceased by means of it which unfortunately struck on the head. A single stroke could have caused the three external injuries and so exception to Section 300 of the Indian Penal Code was squarely attracted to this case. Accordingly if the evidence of P. Ws. 1 and 2 is believed, the appellant is at best liable for the offence under Section 304, Part n of the Indian Penal Code. It is necessary to examine this contention with reference to the evidence on record. ( 7 ) P. W. 1 stated and it is also not in dispute that he was given in adoption to the elder brother of the deceased. Both the appellant and P. W. 1 were living separately in adjoining houses. There was civil litigation between the appellant and the deceased on account of the latter bequeathing his share of ancestral property in favour, of P. W. 1 by virtue of a will. There was ill feeling between the appellant and the deceased and so the latter was living in the house of P. W. 1 Further the appellant has himself admitted in his statement under Section 313 of the Criminal Procedure Code that at the time and on the date of occurrence when he came home with his cart, he found that the cart of P. W. 1 had been kept at the place where he used to keep his cart. So he pushed away the cart of P. W. 1 and kept his own cart in its place. This fact was seen by the deceased who was sitting on the front verandah of the house. So he pushed away the cart of P. W. 1 and kept his own cart in its place. This fact was seen by the deceased who was sitting on the front verandah of the house. He also admitted that there was a quarrel between him and his father. ( 8 ) P. W. 1 further stated that the time of occurrence he was hardly twenty to twenty five cubits away from the house. He saw that the appellant dealt a blow with a Dhipei on the head of the deceased. He dealt four to five blows and went inside his house. As a result of the assault the deceased fell down unconscious. The appellant was shouting SALA MART JA while giving blows. His son P. W. 2 and another villager Gopal Krishna Panda witnessed the assault. He then narrated the other incidents about taking the deceased to the hospital. In cross-examination he stated that no other villager came to the spot. But like Gopal Krishna Panda, other persons were witnessing the occurrence from their houses. He did not notice any mark of violence on the person of the appellant. After the assault, the appellant kept the Dhipei on the cart before running away. P. W. 2 stated that prior to the occurrence along with the deceased he was sitting on the verandah of the house. The deceased protested for the action of the appellant with regard to the placement of the cart. There was exchange of hot words between them. The appellant suddenly picked up a Dhipei and dealt four to five blows on the head of the deceased and shouted MART JA SALA before entering into his house. Just then his father arrived there. In cross-examination he stated that nobody was present at the spot at the time of occurrence. Subsequently people gathered. There was no tussle between the appellant and the deceased, but he pushed back the cart of the appellant. These two witnesses were closely related to the deceased as well as to the appellant. They were cross-examined very searchingly and no material was elicited so as to challenge their credibility as the witnesses of truth. On the other hand, being relations they were interested in pointing out the assailant of the deceased and had no reason to implicate the appellant falsely. They were cross-examined very searchingly and no material was elicited so as to challenge their credibility as the witnesses of truth. On the other hand, being relations they were interested in pointing out the assailant of the deceased and had no reason to implicate the appellant falsely. That apart, as already referred to earlier, the appellant in his statement had admitted the first part of the occurrence. Therefore, we have no hesitation to hold that P. Ws. 1 and 2 saw that the appellant had assaulted the deceased on the head by means of a Dhipei (M. O. I. ). The important question for consideration is whether the case would come within the ambit of Section 304, Part II of the Indian Penal Code falling within the exception 4 of Section 300 of the Indian Penal Code. Indisputably the appellant had neither intention nor premeditation to murder his father even though there was litigation between them on account of the civil dispute. Had he intended to do away with the life of his father, he would have done so earlier and not openly in the evening on the village street. So absence of intention and premeditation on the part of the appellant cannot but be accepted. According to the version of the appellant himself, his action for placement of the cart and protest of the deceased ensued a quarrel between them. The version of P. W. 2 is that there was exchange of hot words between them. In the background of the previous litigation to the property, it was not improbable that both the appellant and the deceased at the time of quarrel got enraged. At the time it was not unlikely for the appellant to get out of control and in the heat of passion and without thinking of the consequences he might have picked up the Dhipei which was near him so as to assault the deceased by means of the same. Although there were head injuries, no explanation was given by the Medical Officer that they could be caused by three blows. Of them two were caused by the appellant by means of a heavy wooden implement like M. O. I. May be the three head injuries were caused by a single blow. Although there were head injuries, no explanation was given by the Medical Officer that they could be caused by three blows. Of them two were caused by the appellant by means of a heavy wooden implement like M. O. I. May be the three head injuries were caused by a single blow. Regard being had to the evidence and the above circumstances and probabilities, we take the view that the case is covered by exception 4 of Section 300 so as to come within the ambit of Section 304, Part II of the Indian Penal Code. ( 9 ) IN the ultimate analysis, the conviction bf the appellant under Section 302 is altered to Section 304, Part II of the Indian Penal Code. As this was a case of patricide, a sentence of eight years Rigorous Imprisonment will not be unreasonable. Instead of life imprisonment, the appellant is sentenced to undergo Rigorous Imprisonment for eight years. Accordingly the appeal is allowed in part. Appeal partly allowed.