JUDGMENT P. MOHANTY, J. : This criminal appeal is directed against the judgment and order dated 20.10.2003 passed by the learned Additional Sessions Judge, Nuapada in S.C. No.115/15 of 2002-2003 convicting the appellant under Sections 302/324; IPC and sentencing him to undergo imprisonment for life for the offence under Section 302, IPC and rigorous imprisonment for one year for the offence under Section 324, IPC, which are to run concurrently. 2.The prosecution case in brief is that on 03.06.2002 at about 9.30 P.M. the deceased had been to Boden bus-stand. At that time, by means of a knife accused assaulted to the deceased, as a result of which the deceased died sustaining injuries on his chest and hands. Getting such information from P.W.2, the informant P.W.1, who is the mother of the deceased, proceeded to the spot and found the deceased lying dead on the road near Boden bus-stand having injuries on his chest and hands. Then, P.W.1 went to Boden police station and lodged the FIR (Ext.1) getting it scribed by P.W.4. On receipt of Ext.1, the OIC, Boden P.S. (P.W.14) registered the case and took up investigation. During investigation, he visited the spot, examined the informant and other witnesses, held inquest over the dead body of the deceased, seized sample earth and bloodstained earth under seizure list Ext.2 and sent the dead body for postmortem examination. He also seized wearing apparels of the deceased, arrested the accused, seized the weapon of offence after disclosure statement made by the accused while in custody. He sent the accused for medical examination, seized his wearing apparels and forwarded him to the Court. He handed over the charge of investigation to P.W.15, who despatched the exhibits to R.F.S.L., Berhampur and after receipt of the chemical examination report handed over the charge of investigation to P.W.9, who placed charge sheet against the accused. 3.The plea of the appellant is one of complete denial and false implication. His specific plea is that while he was chopping potatoes inside Gupta hotel, the deceased came and told him to open the door. But, he did not open the door, for which the deceased broke open the door, entered inside the hotel and caught hold of his neck. He freed himself from the deceased and ran away to his owner. His specific plea is that while he was chopping potatoes inside Gupta hotel, the deceased came and told him to open the door. But, he did not open the door, for which the deceased broke open the door, entered inside the hotel and caught hold of his neck. He freed himself from the deceased and ran away to his owner. 4.The prosecution, in order to prove the charge, examined as many as 15 witnesses including the I.O. and the doctor and exhibited 22 documents. The accused in support of his plea examined himself as D.W.1. 5.The learned Additional Sessions Judge, who tried the case, on assessment of the evidence on record convicted the appellant under Sections 302/34, IPC and sentenced him to undergo imprisonment for life for the offence under Section 302, IPC and to undergo rigorous imprisonment for one year for the offence under Section 324, IPC basing upon the evidence of P.Ws.2, 3 and 11. 6.Mr. Mohapatra, learned counsel for the appellant assails the impugned judgment on the following grounds : (i)There are major discrepancies in the evidence of P.Ws.2, 3 and 11, basing on whose evidence the order of conviction appears to have been passed. (ii)The deceased was the aggressor. He entered into the hotel forcibly by breaking upon the door and caught hold of the accused. Therefore, the case would come under the purview of Section 300, IPC. 7.Mr. Sk. Zafarulla, learned Additional Standing Counsel vehemently contends that the evidence of P.Ws.2, 3 and 11 is very clear, cogent and trustworthy and does not suffer from any discrepancy. From the evidence of P.Ws.6 and 7 as well as the I.O. (P.W.14) it is clear that the appellant while in custody made disclosure and led them to the place of concealment and gave recovery of the weapon of offence, i.e., knife (M.O.X.). P.W.2 the injured eyewitness, who at the time of stabbing tried to separate the appellant from the deceased, has categorically narrated the incident. Furthermore, the wearing apparels of appellant were found by the chemical analyst to be stained with human blood and to that effect no explanation has bene given by the appellant. P.W.2 the injured eyewitness, who at the time of stabbing tried to separate the appellant from the deceased, has categorically narrated the incident. Furthermore, the wearing apparels of appellant were found by the chemical analyst to be stained with human blood and to that effect no explanation has bene given by the appellant. The discrepancies and contradictions appearing in the evidence of P.Ws.2, 3 and 11 are minor in nature which do not go to the substratum of the prosecution case and in that view of the matter the testimony of P.Ws.2, 3 and 11 cannot be discarded. Therefore, the impugned judgment of conviction and sentence does not call for interference by this Court. 8.Perused the LCR. P.W.1 informant is the mother of the deceased. She stated that getting information from P.W.2 that her son (deceased) has been murdered by the appellant she immediately proceeded to the Boden bus stand and found him (deceased) lying dead on the road near one Gupta hotel. As per her instruction P.W.4 scribed a written report and read over and explained the contents thereof to her. She on being satisfied put her. L.T.I. on the written report and on the next day morning lodged the same at the P.S.. In cross-examination nothing has been elicited by the defence to demolish her evidence. P.W.2 is an injured ocular witness. In his examination-in-chief he gave out that on 03.02.2002 at about 9.30 P.M. the incident took place near Mama Hotel of Boden bus stand. The deceased disclosed before him that the appellant accusing him for having illicit relationship with the wife of one Jagannath Pandey. On the request of the deceased he accompanied him to the bus stand for asking the appellant about the allegation. The deceased entered into Mama Hotel and asked the appellant regarding the above allegation. There was a tussle between the appellant and the deceased during the course of which the appellant stabbed the deceased by means of a knife on his chest, right hand and other parts of the body causing bleeding injuries. Due to such assault the deceased fell down on the road and succumbed to the injuries. He further stated that when he tried to separate them, the appellant stabbed on his left upper arm by means of the said life causing bleeding injuries. Due to such assault the deceased fell down on the road and succumbed to the injuries. He further stated that when he tried to separate them, the appellant stabbed on his left upper arm by means of the said life causing bleeding injuries. In cross-examination he admitted that the deceased called the appellant to open the door of the hotel as it was closed, but the appellant did not open. The deceased forcibly entered into the hotel and tussled with the appellant. He also admitted that P.W.3 was also present at the time of occurrence. He once again admitted that the appellant was clearing potatoes when the deceased told the appellant to open the door. As the appellant did not open the door, the deceased foccibly entered inside the hotel. There was power failure while the deceased forcibly entered inside the hotel and tussled with the appellant, but the power supply was immediately restored. P.W.3, who is an ocular witness, corroborated the evidence of P.W.2 in material particulars. He specifically stated in his examination-in-chief that on the incident night he had been to Mama Hotel to take his meal and after getting meal while he was sleeping inside the hotel premises near the gate at that time the deceased came and called the appellant to open the door, but the appellant did not respond. The deceased gave kicks on the door, forcibly entered inside the hotel and caught hold of the neck of the appellant, for which there was a tussle between them. At that time, the appellant was armed with a knife and by means of the said knife stabbed on the chest and left upper arm of the deceased causing bleeding injuries, as a result of which the deceased succumbed to the injuries on the spot. He further stated that when P.W.2 tried to separate them, appellant assaulted on his upper arm by means of a knife. In cross-examination, he admitted that at that time the appellant was removing chaff from the potatoes. The deceased entered inside the hotel though the side door. There was a tussle between the deceased and the appellant. During the incident P.W.11 was also present inside the hotel. P.W.4 is the scribe of the FIR. P.W.5 is a witness to the seizure of bloodstained earth, etc. under Ext.2. P.W.6 & 7 are witnesses to the leading to discovery of the weapon of offence. There was a tussle between the deceased and the appellant. During the incident P.W.11 was also present inside the hotel. P.W.4 is the scribe of the FIR. P.W.5 is a witness to the seizure of bloodstained earth, etc. under Ext.2. P.W.6 & 7 are witnesses to the leading to discovery of the weapon of offence. They specifically stated that the appellant while in custody made a confessional statement (Ext.3) before police in their presence, led them to the place of concealment and gave recovery of the knife (M.O.X), which was seized by police under Ext.4. Both the witnesses have proved the disclosure statement (Ext.3) and also the seizure list (Ext.4). P.W.8 is the witness to the seizure of wearing apparels of the appellant under Ext.5 and proves his signature on it. P.W.9 is the I.O., who placed the charge-sheet. P.W.10 is a witness to the inquest and has proved the inquest report (Ext.6). P.W.11 is an independent witness. He was present at the time of occurrence. He corroborated the evidence of P.Ws.2 & 3 in material particulars. In cross-examination he admitted that at the relevant point of time the appellant was chopping potatoes. The doors of the hotel were closed and no electric bulb was burning inside the hotel. He further admitted that the appellant also stabbed P.W.2 while he tried to separate the appellant and the deceased. P.W.12 is the doctor who made autopsy over the dead body of the deceased. He found the following external injuries. “(1) One cut injury of size 2” length ½” breadth spindle shaped present over lower right lateral half of the sternum below the sternal notch. (2) Cut wound of size 1” x 1 cm x ½” present vertically 2” above the right nipple of chest region. (3) Cut wound of size ½” x 1 cm x ½ cm just over the right sternoclavicular joint of the cest region. (4) Cut wound of size 4” x 2” x 2” present in front of right arm about 3” above the elbwo joint present horizontally. (5) Cut wound of size 4” x 1” x ½” present on the lateral boarder of right forearm 5” above the writ joint. (6) Cut wound of size 2 cm x 1 cm x ¼ cm present on the back of hand in lateral side just above the wrist joint. (5) Cut wound of size 4” x 1” x ½” present on the lateral boarder of right forearm 5” above the writ joint. (6) Cut wound of size 2 cm x 1 cm x ¼ cm present on the back of hand in lateral side just above the wrist joint. (7) Cut wound of size 1½” x 1 cm x 2 cm on the palm of right hand towards lateral side over thinner eminence.” On dissection he found one cut wound penetrating into pericardium over the right atrium of heart with depth of about 5 to 6 inches directed inward and downward. He opined that the injuries were ante-mortem in nature. The cause of death was due to cardiac arrest and due to stab wound penetrating the heart. He further opined that injuries No.1 to 3 were on the vital parts of the body and the internal injury found by him was sufficient in ordinary course to cause death. To the query made by police, he had given his opinion that the injuries found on P.W.2 and that the external and internal injuries found on the dead body of the deceased could be possible by the weapon of offence (M.O.X) produced before him by the I.O. P.W.12 also examined the appellant and found the following injuries. “(1)One abrasion of size 1” x 1” just above the right malar prominence lateral to lateral angle of right eye. (ii)Laceration of size ½” x ½” just above the middle portion of right clavicle in neck region.” He opined that both the injuries are simple in nature and might have been caused by blunt soft object. P.W.13 is the A.S.I. of police, who at the relevant time was posted at Boden P.S. He stated to have collected nail clippings of the accused from the doctor (P.W.12) and produced the same before the O.I.C., Borden P.S. (P.W.14) which were seized under Ext.12. He proved the seizure list (Ext.12) and his signature marked Ext.12/1. P.W.14 is the O.I.C. of Boden P.S. who registered the case, visited the spot, examined the informant and other witnesses, held inquest over the dead body and seized the wearing apparels of the deceased. He also arrested the accused and seized the weapon of offence on the basis of the disclosure statement made by the accused while in custody. He also seized wearing apparels of the accused and forwarded him to Court. He also arrested the accused and seized the weapon of offence on the basis of the disclosure statement made by the accused while in custody. He also seized wearing apparels of the accused and forwarded him to Court. On his transfer, he handed over the charge of investigation to P.W.15. P.W.15 after taking over charge from P.W.14 despatched the incriminating seized articles to R.F.S.L., Berhampur vide Ext.20 and received the chemical examination report Ext.22. Thereafter, the charge of investigation was taken from him by P.W.9. The accused examined himself as D.W.1. In his examination-in-chief he stated that on the relevant day at 9.30 PM was chopping potatoes inside the Munna @ Gupta hotel, Boden. At that time, the main door of the hotel was closed and one Pitambar Kanda was sleeping inside the hotel. The deceased knocked at the door and requested him (accused) to open. When he did not open, the deceased forcibly opened the door, entered inside the hotel and caught hold of his neck. Thereafter, there was a tussle between them. During the course of such tussle the deceased hit on his chest with the knife held by him and thereafter ran away from the hotel. So, he has not committed murder of the deceased. In cross-examination by the prosecution he admitted that the knife was kept in the hotel for cutting the vegetables and choping the potatoes including onion. P.W.11 was his co-employee. Due to pressing of neck by the deceased, there was tenderness on his neck. He further admitted that during tussle the deceased was using his left hand, as he was holding a knife in his right hand, and he caught hold of the hand of the deceased and did not snatch away the knife from his hand. 9.From the analysis of evidence made above it is crystal clear that P.Ws.2, 3 and 11 are witnesses to the occurrence. They have categorically deposed that in the night of occurrence the appellant by means of a knife (M.O.X) committed murder of the deceased and caused injuries on the person of P.W.2 when he tried to rescue the deceased. Their evidence has remained unshaken despite thorough cross-examination. There is also nothing on record to show that they have any axe to grind against the appellant. Their evidence has remained unshaken despite thorough cross-examination. There is also nothing on record to show that they have any axe to grind against the appellant. It is in the evidence of P.Ws.2 and 11 that at the relevant point of time electric bulbs were burning inside the hotel. So, identity of the appellant cannot be doubted. In addition, the appellant while in custody made disclosure statement before police in presence of P.Ws.6 and 7, led them to the place of concealment and gave recovery of the weapon of offence, i.e., knife, which was seized under Ext.4. Apart from the above, as is evident from the chemical examination report, the wearing apparels of the appellant which were sent for chemical examination along with other incriminating articles were found stained with human blood, and in regard to that no explanation has been offered by the appellant. The ocular testimony gets support from the medical evidence. The postmortem doctor, who had also examined the weapon of offence (M.O.X) on police requisition, has opined that the injuries on the person of the deceased could be possible by M.O.X. He also opined that the injuries on the person of P.W.2 could be possible by the said weapon of offence (M.O.X.). For all these reasons, this Court holds that the prosecution has been able to establish that the appellant by means of M.O.X. has committed murder of the deceased and caused bodily injuries on the person of P.W.2, who came to the rescue of the deceased. 10.Now, it is to be seen whether the act committed by the appellant falls within the purview of any of the exceptions provided under Section 300, IPC. We have gone through the judgments in Sandhya Jadhav (Smt) v. State of Maharashtra, (2006) 4 SCC 653 , and Mangulu Behera v. State of Orissa, (2011) 48 OCR-808. Keeping in mind the ratio decided in the above cases, this Court examined the matter. For bringing in operation of Exception 4 to Section 300 IPC, 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 usual manner. For bringing in operation of Exception 4 to Section 300 IPC, 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 usual manner. It is crystal clear from the evidence of P.Ws.2, 3 and 11 that the deceased by breaking open the door entered into the hotel and caught hold of the neck of the appellant, while he was chopping potatoes by means of the knife (M.O.X), for which there was a tussle between them during the course of which the incident took place. The evidence of P.W.2, that on the material date and time the deceased requested to accompany him to confront the appellant as to why he was accusing him (deceased) for having illicit relationship with the wife of Jagannath Pandey, further reveals that the deceased had gone to the hotel, where the appellant was working, with aggression. In view of the injuries found on the body of the appellant, it is proved that there was a tussle between the deceased and the appellant. Thus, it is established that there was no premeditation but due to sudden quarrel and on heat of passion the occurrence took place and, therefore, the act of the appellant squarely attracts Exception-4 to Section 300, IPC. 11.So far as the conviction of the appellant under Section 324, IPC is concerned, this Court finds that the appellant has been found guilty of such offence for having caused injuries to P.W.2. On careful assessment of the evidence on record, this Court is satisfied that the prosecution has been able to prove beyond reasonable doubt that while P.W.2 tried to separate the deceased from the appellant he was assaulted by the appellant, as a result of which he sustained injuries. The medical evidence corroborates the ocular testimony of P.Ws.2, 3 and 11. Therefore, the trial Court has rightly convicted the appellant under Section 324, IPC. 12.In view of the discussions made above, conviction of the appellant under Section 302, IPC is converted to one under Section 304, Part-II, IPC. But, however, his conviction under Section 324, IPC is confirmed. The appellant, on both the counts, is sentenced to the period of imprisonment already undergone. 12.In view of the discussions made above, conviction of the appellant under Section 302, IPC is converted to one under Section 304, Part-II, IPC. But, however, his conviction under Section 324, IPC is confirmed. The appellant, on both the counts, is sentenced to the period of imprisonment already undergone. Consequently, the appeal is allowed in part and the impugned judgment of conviction and sentence is modified to the extent indicated. B.K. MISRA, J.I agree. Appeal allowed in part.