JUDGMENT : S. Pujahari, J. - Challenge under this appeal is made to the judgment dated 07.10.2004 passed by the learned Addl. Sessions Judge, Nabarangpur in Sessions Case No. 11 of 2002 convicting the appellants under Section 302/34 of the Indian Penal Code (for short "I.P.C.") and sentencing them to life imprisonment. 2. The case of the prosecution as unfolded during trial may be stated as follows :- The appellants, namely, Narasingha Sarabu @ Lohara @ Bindhani and his wife - Sukumani @ Tunu Sarabu @ Lohara @ Bindhani of village- Duruaguda had visited the house of the appellant - Damu @ Dambarudhar Bhatra @ Gonda situated at village - Dengaguda on 22.06.2001. The deceased, namely, Padamsingh Dhakad had also visited the house of Damu on the same date, and at about 6 p.m. there ensued a quarrel between the appellants on one side and the deceased on the other, and in course of that quarrel, all the appellants assaulted the deceased and gave him a chase, and near a Mahula tree, all the appellants unitedly assaulted the deceased by means of axe and lathi resulting in his death. The appellants then threw the dead body of the deceased in the land of one Laxman Gonda of village - Pujariguda. On the next day, at 6 p.m., Nilam Bhatra, the brother of the appellant - Damu, lodged F.I.R. with police setting the law into motion. In course of investigation, the Investigating Officer conducted inquest over the dead body of the deceased, subjected the same to autopsy, examined material witnesses, effected seizure of incriminating objects and on completion of investigation laid charge-sheet against the appellants under Section 302/34 of I.P.C. before the learned Judicial Magistrate First Class, Umerkote. The case on being committed to the Court of Sessions, ultimately stood transferred to the Court of the Addl. Sessions Judge, Nabarangpur for disposal according to law. 3. As the accused-appellants pleaded innocence and false implication, trial was held, in course of which the prosecution examined thirteen witnesses in to and produced documentary evidence vide Exts.1 to 17. The seized incriminating objects were also produced during the trial vide M.Os.I to X. From the side of the defence, appellant - Sukumani @ Tunu Lohara was examined as the sole witness. The seized incriminating objects were also produced during the trial vide M.Os.I to X. From the side of the defence, appellant - Sukumani @ Tunu Lohara was examined as the sole witness. The learned trial court on evaluating the materials on record found all the appellants guilty under Section 302/34 of I.P.C. and returned the verdict of conviction and sentence which is under challenge in this appeal. 4. It is the submission of the learned counsel for the appellants that the prosecution witnesses, especially the P.Ws.1, 3, 8, 9 and 11 who are projected to be the eyewitnesses to the incident, being at wide variance on material particulars, and the informant (P.W.1) being admittedly inimical to the appellants, the learned trial court ought not to have reposed confidence in their testimonies. He further pointed out that the delay in lodging the F.I.R. has not been explained much less satisfactorily and the said aspect has not been properly dealt with by the learned court below. His ultimate contention is that the prosecution having not been able to prove its case beyond reasonable doubt by legal evidence, either direct or circumstantial, the impugned judgment is vulnerable and liable to be set-aside. 5. The learned Addl. Government advocate appearing for the State, however, supported the verdict of the trial court on the ground that the same is based upon appreciation of evidence in right perspective. He sought to repel the contention of his adversary by advancing argument that discrepancies and contradictions being natural to occur in human testimony, and unless the same strike at the root of the prosecution case, the Court instead of being influenced by them or discarding the same in entirety should separate the grain from chaff while appreciating the total evidence on record. According to him, the learned trial court has dealt with each and every aspect of the contentions raised by the defence and arrived at a just finding and conclusion, and hence, there is no scope for interference by this Court. 6. Having regard to the rival contentions, we have gone through the evidence on record. At the outset, the evidence of the P.W.10 who conducted autopsy over the dead body of the deceased, is gone through. 6. Having regard to the rival contentions, we have gone through the evidence on record. At the outset, the evidence of the P.W.10 who conducted autopsy over the dead body of the deceased, is gone through. He has deposed that on 24.06.2001 on conducting the autopsy he found the following external injuries :- "i) Incised wound over the head on backside of size 5 c.m. x ? cm bone deep. ii) One incised injury over the right arm just above the elbow on the backside. iii) One incised injury over left side of chest and root of the neck of size 4 cm x 1 cm x muscle deep fracturing the left clavica and left side muscle. iv) One abrasion on the right great to of size 2 cm x 1 cm x skin deep. v) One bruise four in number on the back of size 6cm x 1? cm x skin deep. vi) One bruise over right arm of size 4 cm x 1 cm x skin deep. vii) A bruise over left arm of 4 cm x 1 cm x skin deep." Ext.11 is the report of the P.W.10. His opinion is that the cause of death was due to cardio respiratory failure due to the injuries on head and chest corresponding to injury Nos. (i) and (iii) above which were possible by axe. As it appears, during course of investigation, the Investigating Officer produced the seized weapons of offence, namely, two number of axes besides lathis and wooden planks, and on examining those objects, the P.W.10 affirmed the injury Nos. (i), (ii) and (iii) being possible by the seized axes and the rest of the injuries by wooden planks and lathi. His written opinion in this regard has been marked as Ext.12. The P.W.10 has been subjected to cross-examination by defence and there appears nothing to deny or dispute that the death of the deceased was homicidal in nature being caused by the injuries inflicted by axe blows. 7. The informant - P.W.1 is no other than the brother of the appellant - Damu. His evidence is that on the relevant date at about 6 p.m. while he was returning home from labour work he found appellants - Tunu and Narasingha assaulting the deceased by means of a piece of wood and axe respectively and all the appellants chasing the deceased. His evidence is that on the relevant date at about 6 p.m. while he was returning home from labour work he found appellants - Tunu and Narasingha assaulting the deceased by means of a piece of wood and axe respectively and all the appellants chasing the deceased. He further stated in specific that his brother - Damu was armed with axe by means of which he gave a blow to the deceased and the deceased on receiving the assault fell down in a cultivable land. In paragraph-4 during his cross-examination the defence elicited that he had seen his brother - Damu giving blow to the deceased, and the deceased running away, and that he did not see anything else. It has further been elicited from him during cross-examination that he is not pulling on well with his brother - Damu owing to some land disputes and also for the reason that Damu having left his wife has kept a girl of a different community, i.e., the community of the appellant - Narasingha Lohara. 8. The evidence of P.W.3 is that one day at about 4 p.m. while he was returning from work he found the appellants giving blows to the deceased and the deceased ran towards a Mahua tree. The defence during cross-examination elicited from him that there was disturbance in the house of the appellant - Damu, and that while being inside his own house he could not see the disturbance that occurred inside the house of the appellant - Damu. A scrutiny of the evidence of P.W.3 does not rank him as an eyewitness to the case incident. 9. The P.W.8 in his evidence-in-chief deposed that while the appellants - Damu and Narasingha were giving blows to the deceased by means of axe, the other appellant - Tunu was found empty handed. During cross-examination, however, he admitted that he has not seen any blows being given to the deceased, inasmuch as he was inside his house and the incident was not visible from inside his house. 10. P.W.9 has claimed his direct knowledge that he saw the appellant - Damu giving blows to the deceased by means of an axe and that when the deceased ran towards a Mahua tree, the appellants chased him. 10. P.W.9 has claimed his direct knowledge that he saw the appellant - Damu giving blows to the deceased by means of an axe and that when the deceased ran towards a Mahua tree, the appellants chased him. During cross-examination he reiterated his claim that he saw Damu giving blows and that he did not see anything further after the deceased ran towards Mahua tree. 11. The evidence of P.W.11, another co-villager of the appellants, is that one day in the evening while he was inside his house, on hearing hullah he came out and saw the appellant - Damu being armed with an axe, Narasingha with a bamboo stick and Tunu with a piece of wood chasing the deceased while giving blows. He further deposed that the deceased ran towards a Mahua tree and that Damu gave blows to the deceased by the axe, and the deceased died there on receiving the blows. He further added that on the next day morning the villagers found the dead body lying at the spot. During cross-examination it was elicited from him by the defence that the place of assault was about half furlong away from his house and that he had seen the deceased being chased upto a Mahua tree. It is also there in his evidence that the assailants returned to village from that Mahua tree whereas the dead body of the deceased was traced at a spot about two kilometers away from his house. The defence despite cross-examination has not been able to shake the claim of the P.W.11 that the appellant - Damu dealt axe blows to the deceased resulting in his death. of course, the P.W.11 has expressed his ignorance as to how the dead body of the deceased was found at a different place at a distance. In this context, a reference may be made to the evidence of the Investigating Officer (P.W.12) who in paragraph-4 of his cross-examination has specified that the Mahua tree where the assault took place is about 200 feets away from the house of the appellant - Damu and the spot where the dead body was found lying is about ?th kilometer from the Mahua tree. 12. 12. A scrutiny of the evidence of the aforesaid witnesses would show that there is a lack of coherence and consistency as to what nature of weapon was held or used by the appellants - Narasingha and Tunu, and to reiterate, according to P.W.11, Tunu was empty handed. The learned trial court failed to take note of the above features while appreciating the evidence. As already stated, the medical evidence is that the death of the deceased was due to the injuries inflicted by axe, and with the available evidence on record, it cannot be held beyond reasonable doubt that the appellants - Tunu and Narasingha inflicted any fatal injury much less with the requisite intention or knowledge to cause death of the deceased or that they shared common intention with the other appellants to cause death of the deceased. The appellants - Tunu and Narasingha, in our opinion, are entitled to benefit of doubt. 13. P.Ws.1, 9 and 11 are unequivocal that appellant - Damu was armed with axe by means of which he gave blows to the deceased. Admittedly, P.W.1 was not pulling on well with the appellant - Damu, but his evidence being corroborated by direct evidence of P.Ws.9 and 11 as well as the medical evidence and other circumstantial evidence on record and no inherent improbability or infirmity in his evidence having come to our notice, the said animosity cannot be taken as a ground to affect the credibility of his evidence. 14. Admittedly, there is delay of one day in lodging the F.I.R., but delay by itself is not always fatal to the prosecution. It is only inordinate and unexplained delay which adds suspicion to the veracity of the prosecution version and may prove fatal to the case. But, when the evidence produced by the prosecution regarding the incident is worthy of credence admitting of no suspicion, and the facts sought to be proved are proved to the hilt, the delay factor becomes insignificant. Be that as it may, in the case at hand, it would be noticed from the evidence of the P.W.1 and other materials on record that the deceased had been driven out of the village due to his some past nefarious activities and was moving here and there like an insane person. Be that as it may, in the case at hand, it would be noticed from the evidence of the P.W.1 and other materials on record that the deceased had been driven out of the village due to his some past nefarious activities and was moving here and there like an insane person. There is also nothing on record to show that there was any person near or dear to him to be sensitive of his plight and death. In the circumstances, the delay of one day in lodging the F.I.R. with police is no way affects the probative value of the prosecution case. 15. It is further argued by the learned counsel for the appellants that there being no evidence on record to show as to how the dead body of the deceased was found lying at a spot different from the spot of assault, there arises suspicion about the cause of the death of the deceased. To reiterate, it has been elicited by the defence from the P.W.13 that the spot where the dead body was found was only ?th kilometre from the Mahua tree where the assault took place to the notice of the independent witnesses. The direct evidence on record is that the appellant - Damu dealt axe blows to the deceased causing his death, and the medical evidence also lends assurance to the prosecution case that the death was caused due to the incised wounds on head and chest which were possible by axe. In that view of the unimpeachable evidence on record, the point raised on behalf of the appellants does not merit any consideration. 16. The contention next advanced by the learned counsel for the appellants is that there being nothing to suggest any premeditation, and the alleged incident having stemmed from a sudden quarrel, that too, out of provocation actuated by the deceased, the offence cannot be brought within the definition of 'murder'. To put in other words, according to the learned counsel, the case is covered by the exception 4 to Section 300 of I.P.C., and at best Section 304 of I.P.C. may be attracted. In the context, he has made a reference to the evidence of the defence witness and the elicitation made from the P.W.13 during cross-examination. To put in other words, according to the learned counsel, the case is covered by the exception 4 to Section 300 of I.P.C., and at best Section 304 of I.P.C. may be attracted. In the context, he has made a reference to the evidence of the defence witness and the elicitation made from the P.W.13 during cross-examination. In support of his contention, he has also placed reliance on a decision of the Apex Court in the case of Sanjeev v. State of Haryana, (2015) 60 OCR (SC) 1031. 17. In the case of Sanjeev (supra), both the appellant and the deceased being drunk engaged in an altercation leading to a scuffle and the appellant in that course caused injuries to the deceased. Further, in the same incident, the appellant had also received one incised wound on his person. In the facts and circumstances, the case at hand is distinguishable. Here, the deceased was not armed with any weapon nor there is any material on record to suggest that either there was any scuffle or the deceased caused any injury to the assailant (Damu) who evidently was armed with axe and by that weapon he inflicted injuries to the deceased on giving him chase. It is also pertinent to mention here that absence of premeditation alone is not sufficient to attract the exception 4 to Section 300 of I.P.C. It must also be shown that the offender committed the culpable homicide without having taken undue advantage or without having acted in a cruel or unusual manner. The fact scenario as depicted from the evidence on record shows that because the deceased sat on a Charpoi (cot) where the appellant - Tunu was lying, the quarrel ensued and the unarmed deceased was assaulted with axe on the vital parts like head and chest which proved fatal. In that view of the manner and nature of the indulgence, it cannot be said that the appellant - Damu acted without having taken undue advantage of the situation. Equally, it cannot be denied that he acted in a cruel and unusual manner. We find no scope to bring the case within the ambit of any exception. 18. In that view of the manner and nature of the indulgence, it cannot be said that the appellant - Damu acted without having taken undue advantage of the situation. Equally, it cannot be denied that he acted in a cruel and unusual manner. We find no scope to bring the case within the ambit of any exception. 18. The ultimate conclusion is that the conviction of the appellants, namely, Narasingha Sarabu @ Lohara @ Bindhani and Sukumani @ Tunu Sarabu @ Lohara @ Bindhani being not sustainable in law is hereby setaside, and the impugned judgment in so far as it relates to the conviction of the appellant - Damu @ Damburudhar Bhatra @ Gonda under Section 302 of I.P.C. and the sentence awarded to him stands confirmed. The common appeal filed by all the three appellants is disposed of accordingly. The appellants, namely, Narasingha Sarabu @ Lohara @ Bindhani and Sukumani @ Tunu Sarabu @ Lohara @ Bindhani be set at liberty forthwith if their further detention in custody is not required for any other case. L.C.R. received be sent back forthwith along with a copy of this Judgment. Final Result : Disposed Of