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2022 DIGILAW 274 (ORI)

Naiku Majhi v. State of Orissa

2022-07-12

B.P.ROUTRAY, S.TALAPATRA

body2022
JUDGMENT : S. TALAPATRA, J. 1. This is an appeal by the convict (hereinafter referred to as the appellant) from the Judgment and Order of conviction and sentence dated 20.06.2014 delivered in C.T. No. 46 of 2011 by the Sessions Judge, Rayagada. By the said Judgment, the Sessions Judge convicted the appellant for committing the offence punishable under Sections 302 and 323 of the IPC and sentenced him to suffer rigorous imprisonment for life [without imposing fine] and one year rigorous imprisonment for committing offence under Section 323 of the IPC. It has been also observed that the appellant is entitled to setoff under Section 428 of the Cr.P.C. While returning the finding of conviction, it has been observed by the Sessions Judge that the act of the appellant in dealing blows on the deceased cannot be termed to be only an act of preventing him from taking PW-2 away. Had that been the case, the appellant could have pushed away the deceased, who was much older than him or, in the worst case, could have dealt a single blow to deter him for interfering in taking his wife away. The accused did not stop at a single blow. He dealt successive blows which certainly cannot be understood as preventive. In addition, it is also to be seen that the force with which the blows were dealt and the impact that caused, caused the death by doing an act with knowledge that he was likely by such act to cause death. Having noted thus, the Sessions Judge has held that it cannot be said that the act of the appellant was impulsive and outcome of his volatile temper. Thus, the appellant committed culpable homicide. The act with which the death is caused is done with intention of causing such bodily injury to the deceased, namely Bijaya Kumar Majhi and such bodily injury was sufficient in the ordinary course of nature to cause death. Hence, it has been observed that the clause, thirdly of Section 300 IPC read with illustration (c) takes within its fold the facts and the attendant circumstances of the case. Thus, the defence plea of culpable homicide not amounting to murder was discarded. Hence, it has been observed that the clause, thirdly of Section 300 IPC read with illustration (c) takes within its fold the facts and the attendant circumstances of the case. Thus, the defence plea of culpable homicide not amounting to murder was discarded. It may not be out of context to note that the appellant dealt blow also on the wife of the deceased (PW-4) by the same Musala (the weapon of offence), she sustained injuries on her head and fell down. PW-15 found lacerated wound on the back of her head but she was not examined by PW-21, as she was hospitalized till 16.01.2011. Such evidence has not been disputed, in any manner. From the above, it is clear that by the act of the accused she sustained pain. So the culpable act of hurt is proved against the appellant. The appellant by assault by Musala caused bodily pain to PW-4 with intention to cause hurt to her. Hence, the conviction based on those findings is under challenge, by means of this appeal. 2. It appears that this appeal has been structured fundamentally on two grounds viz. (1) due to sudden provocation, the occurrence took place and hence, the conviction under Section 302 of the IPC is unsustainable and (2) there had been no meditation or preparedness but on the spur of a moment, when the deceased prevented the appellant being enraged hit the deceased and his wife with Musala. Therefore, there is no evidence of intention to kill as is essentially required to form the charge under Section 302 of the IPC. For the purpose of appreciating the appeal, the facts as are considered relevant, may briefly be introduced at the outset. 3. The wife of the appellant namely, Narangi Majhi, is the daughter of the deceased, namely, Bijaya Kumar Majhi. There had been matrimonial discord and his daughter came to his house. On 08.11.2011 at about 06.00 P.M., the appellant and his brother, Agin, Sister-in-law, Subarna, came to the deceased’s house to take back Narangi. It was agreed that Narangi would leave for her matrimonial home. The deceased entreated the appellant and others to stay at night and to take his daughter on the following morning. During the discussion, the appellant tried to forcibly drag Narangi, but the deceased objected and prevented him. It was agreed that Narangi would leave for her matrimonial home. The deceased entreated the appellant and others to stay at night and to take his daughter on the following morning. During the discussion, the appellant tried to forcibly drag Narangi, but the deceased objected and prevented him. The appellant got enraged, being obstructed, and dealt two blows on Bijaya’s head by means of a hand wood (Musala) lying nearby, resulting in bleeding injuries. The appellant also assaulted Laxmi Dei, Bijay’s wife when she rushed to his rescue. Neighbours intervened, but the appellant fled from the scene. The injured were removed to Kashipur Hospital and thereafter to the District Headquarters Hospital at Rayagada. Their nephew, one Phaguna Majhi, PW-1, lodged a written report at Kashipur Police Station on the following morning at 7 A.M. and the investigation commenced. On completion of the investigation. The charge sheet under Sections 302 and 323 of the IPC was submitted. Following the procedure, the case was committed to the Court of Sessions, and the trial commenced on the charge, as framed. The charge was framed under Sections 302 and 323 of the IPC, which was squarely denied by the appellant. After recording the evidence, the Trial Judge formulated three points for convenience of decision. Before that, the appellant was examined under Section 313 of the CrPC points those were formulated are: (I) Whether the accused dealt Musala blows on Bijaya Majhi and he died as a consequence thereof. (II) Whether the appellant did such act with the intention of causing death or with the intention of such bodily injury as was sufficient in the ordinary course of nature to cause death. (III) Whether accused assaulted Laxmidei Majhi by means of Musala causing bodily pain with an intention to cause harm on her. 4. It appears that, prosecution examined 21 witnesses. PW-1 filed the FIR, but he was not the eye witness. He appeared in the crime scene after the occurrence took place. But he has testified that when he reached the place of occurrence, the deceased was lying on the ground in the pool of blood. In that place of occurrence, the brother and the sister-in-law of the appellant were present. He stood there. He has stated that the deceased died at Rayagada District Hospital in the evening of the following day. PW-2, Narangi Majhi, is the wife of the appellant. In that place of occurrence, the brother and the sister-in-law of the appellant were present. He stood there. He has stated that the deceased died at Rayagada District Hospital in the evening of the following day. PW-2, Narangi Majhi, is the wife of the appellant. PW-2 is the eye witness. She has testified that the appellant tried to drag her out. Her father (the deceased) raised objection. The appellant by using Musala, dealt two blows on the head of the deceased which resulted in serious injuries. She has further deposed that the appellant also assaulted her mother, the wife of the deceased. The suggestion as advanced being contrary to the examination-in-chief has been denied. PW-3, Sarat Majhi, who happens to be the son of the deceased, has stated in the cross-examination that at the time of occurrence he was outside the house. However, in the examination-in-chief, he has stated that the appellant, his brother and the sister-in-law had come to their house to take back his sister (PW-2). His father did not allow his sister to go out in the night. Thereafter, the appellant by means of a Musala dealt two blows on the head of his father and as a result his father fell down on the ground. When his mother intervened, she was also assaulted by the appellant. His father was shifted to Kashipur and then to Rayagada Hospital, where he died. PW-4, Laxmi Dei Majhi, the wife of the deceased is the injured witness of the said crime transaction. She has stated that her husband did not allow PW-2 to go with the appellant in the night but the appellant insisted to take her back in that night itself. But the deceased refused to allow his daughter to leave in that night. Suddenly the appellant by means of a musala, dealt two blows on the head of her husband, as her husband tried to prevent the appellant, who had been dragging their daughter, Narangi, for taking her outside their house, her husband fell down on the ground, was found in a pool of blood. When she rushed to rescue her husband, the appellant assaulted her. After the occurrence, she shifted her husband to Kashipur Hospital and thereafter to Rayagada. At Rayagada Hospital, her husband died. When she rushed to rescue her husband, the appellant assaulted her. After the occurrence, she shifted her husband to Kashipur Hospital and thereafter to Rayagada. At Rayagada Hospital, her husband died. All suggestions as advanced in order to to discredit the statements of PW-4 have been squarely denied and thus, the defence has failed to bring out any contradiction in the statement of PW-4. PW-5, Pramod Kumar Majhi, after registering hue and cry in the house of the deceased, appeared in the place of occurrence and found the deceased and his wife lying on the ground having sustained bleeding injuries on their person. They shifted the injured to Kashipur Hospital and thereafter, on the advice of the Hospital authority, the deceased was shifted to Headquarters Hospital, Rayagada, where he succumbed to the injuries. PW-5 is an important seizure witness, as in his presence, the weapon of offence i.e. Musala was recovered from the house of the deceased on production by PW-2 and seized by preparing the seizure list (Ext.2). The defence tried to prove PW-5 an unreliable witness as his residence is estimated by 3 kilometers away from the place of occurrence but, PW-5 has identified his signature on the seizure list, Ext.2. PW-6, Singu Majhi also having registered hue and cry appeared in the place of occurrence and found the deceased and his wife lying on the ground with injuries. He has stated in trial that the deceased’s daughter (PW-2) told him that the appellant dealt two blows on the head of her father by a Musala. In the cross examination, he had deposed that he was under impression that PW-2 and the appellant had been leading a happy conjugal life. But, at the same time, he had stated that the appellant did not permit PW-2 to visit her father’s house. PW-7, Sudarshan Nayak, is the inquest witness. In the trial, he testified that on having information of the occurrence, he visited the house of the deceased and found the deceased and his wife lying on the ground on sustaining injuries. According to him, all the injuries were on the head of the deceased. He has revealed in the trial that son and daughter of the deceased informed him that the appellant dealt blows on head of their father by a Musala. Even their mother was injured by the appellant. According to him, all the injuries were on the head of the deceased. He has revealed in the trial that son and daughter of the deceased informed him that the appellant dealt blows on head of their father by a Musala. Even their mother was injured by the appellant. But, in the cross-examination, PW-7, Sudarsan Nayak, has stated as follows: “I found only one injury on the head of the deceased. Out of the person present during inquest he had only signed on the inquest report.” He has stated that he was not aware what contained in the inquest report. He only signed on one document. He has stated that one doctor was present at that time of the inquest held by the Police. The suggestions beyond what he has stated in the examination-in-chief were all denied. PW-8, Dr. D.K. Dev, a Medical Officer was working at the relevant point of time in the District Headquarters Hospital, Rayagada. He has categorically stated that on requisition, he had conducted the post-mortem examination over the dead body of Bijaya Kumar Majhi (the Deceased) and found the following external injuries: “(i) lacerated wound of size 4” x 1” scalp deep over the left parietal and temporal area of skull. (ii) lacerated wound of size 2” x 1” over the right parietal area of skull.” On dissection he found the following injuries. (i) There was hematoma over the scalp around the lacerated wounds. (ii) Fracture of left parietal and temporal bone, right parietal bone and occipital bone. (iii) The cranium membrance was torn under the fracture and there was sub-Dural haematome on the temporal area. (iv) There was penetrating injury to the left parietal and temporal lobe of the brain.” 5. All the injuries according to him are ante mortem in nature. The cause of death was due to fracture of the skull bone with penetrating injury to brain. He identified the report (Ext.4). He further testified that on 21.01.2011, the investigating officer produced a wooden Musala, cylindrical in shape, with length of 42” having a handle with metal tip of length 10” and length of the body is 32.” The circumference of the body is 7.1/2” x 9” and 11” at the beginning, middle and end of the cylindrical body. There are some traces of cow-dung stains with a big crack in the lower part. There are some traces of cow-dung stains with a big crack in the lower part. On the query of the Investigation Officer, he opined that the injuries found in the post mortem examination on the person of the deceased are possible by use of the same Musala. He has also identified it as Ext.6. In cross-examination, he denied that there was no injury on the head of the deceased as stated by him. PW-9, Khagapati Muduli, who is a Police Constable and seizure witness of seizure of vials one containing the nail clippings and another vial, containing the hairs, one check full shirt and one full pant on production by one Nayak Majhi at the P.S. He signed over the seizure list (Ext.7). He has admitted in the cross-examination that there had been no outsider present at the time of seizure and he did not go through the contents of the seizure list, but he has categorically denied that there was no seizure or he was stating falsely in respect of the seizure. PW-10, Padma Charan Padhy is another Police Constable, attached to Kashipur Police Station. He is the seizure witness of the Bed-head ticket of the deceased, from the District Hospital, Rayagada. He has acknowledged to have signed over the seizure list, Ext.8. In the cross-examination, he has stated that there were outsiders at the time of the seizure and two outsiders signed in the seizure list in his presence. PW-11, Shyama Majhi, came to the house of the deceased, having heard of the occurrence from Narangi Dei Majhi, Laxmi Dei Majhi and Sarat Majhi that the appellant had assaulted Bijaya Majhi (the deceased). He found on his appearance on the place of occurrence that the deceased had sustained bleeding injury on the back side of his head. He accompanied the other persons who took the deceased first to the Kashipur Hospital and thereafter, to the District Headquarters Hopital, Rayagada, on reference. According to him, on the following day, at about 9 P.M. Bijaya died at the District Headquarters Hospital. He denied the suggestion of the defence that he was not present at the place of occurrence. PW-12 identified the appellant in the dock and testified that after hearing about the occurrence from PW-2, PW-3 and PW-4 that the appellant assaulted the deceased, he went to the deceased’s house. He denied the suggestion of the defence that he was not present at the place of occurrence. PW-12 identified the appellant in the dock and testified that after hearing about the occurrence from PW-2, PW-3 and PW-4 that the appellant assaulted the deceased, he went to the deceased’s house. He also accompanied the other persons namely, Sudarsan Naik and Shyama Majhi to take Bijaya to Kashipur Hospital. He has categorically stated in the cross-examination that he had not seen the occurrence. PW-13, Agin Majhi had turned hostile, as he did not support his statement as recorded by the Investigating Officer. During the cross-examination as carried out by the State, he denied the fact that he had stated before the Police Officer anything relating to the case. PW-14, Dologovinda Naik is the person who scribed the FIR (Ext.1). He has testified in the trial that he prepared the report at the instruction of the informant, namely, Phaguna Majhi (PW-1). After preparation, he read over the content to Phaguna Majhi and thereafter Phaguna Majhi signed on the said report. The defence failed to bring out any material which might dent the case of the prosecution. PW-15, Dr. Subhasis Panigrahi had examined Laxmi Dei Majhi (PW-4) and found one lacerated wound on the back of her head (occiput), which could have been caused by hard and blunt object. Injury was simple in nature. PW-15 identified his report (Ext.9). However, in the cross examination, PW-15 has stated that such injury is possible by fall in a particular manner or it can so happen if the head is struck against the wall. PW-16, Birendra Naik identified the appellant in the dock, and testified that one day about two years back (from the day of deposition) there was hulla that the appellant had assaulted the deceased. The villagers took Bijaya Majhi and his wife Laxmi Dei Majhi first to Kashipur CHC for treatment and thereafter, on reference, to the District Headquarters Hospital at Rayagada. In his presence, the Police seized sample earth and blood stained earth from the spot and prepared the seizure list (Ext.10). In the cross examination, he has stated that he was present in the place of occurrence before the Police came and he signed the seizure list in the spot. He has denied the suggestion that he was not present at the time of seizure or he was deposing falsely. In the cross examination, he has stated that he was present in the place of occurrence before the Police came and he signed the seizure list in the spot. He has denied the suggestion that he was not present at the time of seizure or he was deposing falsely. PW-17, Bal Singh Majhi identified the appellant in the dock and deposed in the trial. He has stated that he heard that the appellant had assaulted his mother-in-law. Sundar Naik and Shyam Majhi took the injured Laxmi and Bijaya to Kashipur Hospital. PW-17 has admitted that he had not gone to the spot. He went there on the next morning. Thus, he had not seen the appellant assaulting Laxmi and Bijaya. PW-18, Govinda Mallik is a seizure witness, as in his presence, the Police had seized one full pant, one full shirt, one vail containing nail clipping and another vail with hair on production by the Constable. In the cross-examination, he has admitted that he has not put his signature in the seizure list. PW-19, Kaliamani Naik was declared hostile, as he did not support his statement as recorded by the Police under Section 161 of the Cr.P.C. Hence, he was cross examined by the prosecution but he denied all suggestions stating that he did not state anything to the Police in respect of the said occurrence. PW-20, Kunja Kishore Padhy is a Police Constable at the relevant time and was attached to Kashipur Police Station. PW-20 escorted the dead body to Kashipur Hospital for the post-mortem examination. After the post-mortem examination, the doctor handed over the blood stained lungi and shirt of the deceased Bijaya Majhi for production of the same to the I.O. Accordingly, he had produced the wearing apparels of the deceased along with the Command Certificate to the investigating officer, who in turn, seized those materials by preparing a seizure list (Ext.12). He had signed over that seizure list. He had admitted in the cross examination that no receipt was taken after he deposited those seized materials, Ext.12. PW-21 is the Investigating Officer. He has briefly stated how he had conducted the investigation by causing seizures of the material objects and by recording the statements of the witnesses. In the cross-examination, he has stated that he had no report that the relation between the appellant and the deceased was inimical. PW-21 is the Investigating Officer. He has briefly stated how he had conducted the investigation by causing seizures of the material objects and by recording the statements of the witnesses. In the cross-examination, he has stated that he had no report that the relation between the appellant and the deceased was inimical. But PW-21 has denied that there were no materials to file the charge sheet against the appellant. On appreciation of the evidentiary materials, the findings of the conviction has been returned. 6. Mr. N. Panda, learned counsel appearing for the appellant has argued that there had been no intention of the appellant to kill the deceased. But, as the deceased tried to physically prevent the appellant from taking her wife to his house, the appellant got furious and out of the rage by a Musala lying nearby, he struck blow on the head of the deceased which resulted in his death. According to Mr. Panda, learned counsel, it is evident that there had been no pre-meditation, no enmity even there was no preparation to assault and hence, the said act would fall within the Exception-4 of Section 300 of the IPC which provides that culpable homicide is not a 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. Therefore, Mr. Panda, learned counsel has urged to convert the conviction under Section 304 Part-II of the IPC. According to Mr. Panda, even if there is knowledge that such act is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death, such act be termed only as culpable homicide not amounting to murder. If such act can be brought under Section 304 Part-II of the IPC, the maximum punishment would be for a term which may extend to 10 years or with fine or with both. The petitioner is in jail for last eleven years two days according to Mr. Panda, learned counsel appearing for the appellant. Therefore, if this Court considers that the act committed by the appellant is covered under Section 304 Part-II of the IPC, the appellant is liable to be released from the jail forthwith. In support of his contention, Mr. The petitioner is in jail for last eleven years two days according to Mr. Panda, learned counsel appearing for the appellant. Therefore, if this Court considers that the act committed by the appellant is covered under Section 304 Part-II of the IPC, the appellant is liable to be released from the jail forthwith. In support of his contention, Mr. Panda, learned counsel has relied on two decisions of the Apex Court. In Satish Narayan Sawant vs. State of Goa [Judgment Dated 14.09.2009 delivered in Criminal Appeal No. 854 of 2002] where the Apex Court had occasion to observe inter-alia as follows: “18..........The aforesaid eye-witnesses, although, are related witnesses, were natural witnesses for they were the inmates of the house where the incident had taken place. The said eye-witnesses are consistent about the principal act of the appellant in stabbing the deceased. The discrepancies which were sought to be pointed out are minor discrepancies without in any manner affecting the substratum of the prosecution case and therefore, minor discrepancies in the evidence of the eye-witnesses are immaterial. This Court has observed as follows in the case of Dinesh Kumar vs. State of Rajasthan, (2008) 8 SCC 270 : “It is to be noted that PWs. 7 and 13 were the injured witnesses and PW-10 was another eyewitness and was the informant. Law is fairly well settled that even if acquittal is recorded in respect of the co-accused on the ground that there were exaggerations and embellishments, yet conviction can be recorded if the evidence is found cogent, credible and truthful in respect of another accused. The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. In law, testimony of an injured witness is given importance. When the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. The court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence.” It has been further observed in Satish Narayan Sawant as under: 21. The aforesaid eye-witnesses were cross-examined at length but even after such lengthy cross-examination these eye-witnesses account could not be shaken. The postmortem report indicates that there were sixteen injuries as against the two as adduced in ocular evidence and, therefore, a submission was made by the counsel appearing for the appellant that the medical evidence adduced in the present case is not supporting the ocular evidence. However, a perusal of record clearly shows that the doctor who conducted the postmortem (PW-7) stated in his evidence that there were in total 16 injuries when external examination was done by him and the knife M.O. 11 could have caused the injuries no. 1, 2, 3 and 4. He further stated that the death was caused due to hemorrhage and shock as a result of stab injury. He further stated that Injury No. 1 was sufficient to cause death in the ordinary course of nature. On being cross-examined, PW-7 categorically stated that death due to stab injury was in consequence of Injury No. 1 and all other injuries were superficial in nature. There is no doubt that four injuries are indicated in the postmortem report shown to have been received by the deceased but the fact that the deceased was given stab injuries by the appellant with the help of a knife brought by him from inside the house is clearly established from the ocular evidence. There is therefore one particular injury, being injury No. 1 caused because of stabbing and the rest being superficial in nature could be caused during scuffle. Therefore, the alleged discrepancy cannot be said to be very vital as it has been held by this Court in several decisions that ocular evidence cannot be brushed aside only because, to some extent, it is not in consonance with the medical evidence. Therefore, the alleged discrepancy cannot be said to be very vital as it has been held by this Court in several decisions that ocular evidence cannot be brushed aside only because, to some extent, it is not in consonance with the medical evidence. Reference in this regard may be made to the decision of this Court in State of U.P. vs. Krishna Gopal, (1988) 4 SCC 302 , Anwar vs. State of Haryana, (1997) 9 SCC 766 , Ravi Kumar vs. State of Punjab, (2005) 9 SCC 315 and Munivel vs. State of Tamil Nadu, (2006) 9 SCC 394 . 22. All the contentions raised by learned counsel appearing for the appellant were considered by us in the light of evidence on record and we find that none of the aforesaid submissions has any basis. There is cogent and reliable evidence on record to prove and establish that the accused has committed the act of stabbing as a result of which the deceased had died.” (Emphasis added) 7. Mr. Panda, learned counsel has therefore, contended that, there is no straight jacket formula. It all depends on the facts. In Satish Narayan Sawant, (supra), the Apex Court has observed that there was an altercation preceding the incident. There was no evidence that the deceased was armed with any weapon. Initially, the appellant did not have any weapon with him. But during the course of the incident, he went inside and got a knife with the help of it he stabbed the deceased. There was only one main injury due to stabbing and that was on the back-side of the deceased. For that, it cannot be said that there was any intention to kill or inflict an injury of a particular degree. There was provocation and the incident happened at the spur of the moment. That being the factual position, the act cannot be brought under Section 302 of the IPC, it is a case falling under Section 304 Part-II of the IPC as there was no intention on the part of the accused either to cause death or such bodily injury that is likely to cause death. Mr. Panda has also placed his reliance on Surinder Kumar vs. Union Territory, Chandigarh, [Judgment dated 08.03.1989 delivered in Criminal Appeal No. 530 of 1978]. While dwelling on Exception 4 to Section 300 of the IPC, the Apex Court has observed as follows: “3. Mr. Panda has also placed his reliance on Surinder Kumar vs. Union Territory, Chandigarh, [Judgment dated 08.03.1989 delivered in Criminal Appeal No. 530 of 1978]. While dwelling on Exception 4 to Section 300 of the IPC, the Apex Court has observed as follows: “3. On January 3, 1975, at about 7.15 p.m. PW-2 and his deceased brother had an heated argument with the appellant and his brother Amrit Lal in regard to the return of the kitchen. In the course of this heated exchange PW-2 is alleged to have showered filthy abuses. Although PW-2 denies this fact, PW-4 has admitted the same. PW-2 also threatened to throw out the utensils and lock the kitchen. Since PW-2 was uttering filthy abuses in the presence of the appellant's sister and Nitya Nand did not restrain him, the appellant got enraged, went into the kitchen and returned with a knife with which he inflicted one blow on the neck of PW-2 causing a bleeding injury. In the melee the appellant inflicted three knife blows to Nitya Nand; one on the shoulder, the other on the elbow and the third on the chest, as a result whereof Nitya Nand collapsed to the floor and later died while on the way to the hospital. The fact that Nitya Nand died a homicidal death is not in dispute. 4. The appellant's defence was that on the date of the incident PW-2 and his deceased brother had demanded vacant possession of the kitchen and on being told that PW-4 had permitted them to continue to occupy it they uttered filthy abuses in the presence of his sister and on being asked to desist from using such language PW-2 began to throw out the utensils from the kitchen. When the appellant tried to stop him from doing so, PW-2 took out a knife from his pant pocket whereupon the appellant took shelter behind a door. PW-2 rushed towards him with the knife but in the meanwhile Nitya Nand moved in between and sustained the injuries in question. The courts below have, however, concluded, and in our opinion rightly, that the appellant had in the course of the quarrel given stab wounds to PW-2 and the deceased Nitya Nand. 5. PW-2 rushed towards him with the knife but in the meanwhile Nitya Nand moved in between and sustained the injuries in question. The courts below have, however, concluded, and in our opinion rightly, that the appellant had in the course of the quarrel given stab wounds to PW-2 and the deceased Nitya Nand. 5. The learned Advocate for the appellant submitted that there was no previous ill-will between the parties, on the contrary the relations were cordial and the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any premeditation and hence Exception 4 to Section 300, IPC was clearly attracted. On the other hand the learned counsel for the State argued that the High Court had rightly held that the appellant had acted in a cruel and unusual manner and was not entitled to the benefit of the said exception. He submitted that the appellant had attacked an unarmed person and had caused as many as three injuries which showed that he had acted in a cruel manner. The appellant's counsel countered by pointing out from the evidence of PW-1 Dr. Goyal that the appellant had a deformity in the left leg which restricted his movement and he would ordinarily not venture to attack unless he was forced by circumstances to use the weapon to contain PW-2. 6. Exception 4 to Section 300 reads as under: Exception 4: 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. Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault. 7. To invoke this exception 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 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 occurrence 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 present case, the deceased and PW-2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to handover possession of the kitchen, PW-2 quarrelled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW-2 and his deceased brother on the other. In the course of this heated argument it is the appellant's case that PW-2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW-2. It is on record that PW-2 was convicted at Narnaul on two occasions under Section 411, IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW-4. When the appellant found that PW-2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW-2 it would appear that PW-2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW-2 to facilitate an attack on him by the appellant. From the simple injury caused to PW-2 it would appear that PW-2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW-2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW-2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2” below the nipple - It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW-2 was a self-inflicted wound and had therefore acquitted the appellant of the charge under Section 307, IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW-2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW-2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW-2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW-2 and inflicted a simple injury on his neck. It would be reasonable to inter that the deceased must have intervened on the side of his brother PW-2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years. In the result, this appeal partly succeeds. The order of conviction and sentence passed under Section 302, IPC is set aside and the fine, if paid, is directed to be refunded. Under these circumstances, we think it proper to convict the accused under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years. In the result, this appeal partly succeeds. The order of conviction and sentence passed under Section 302, IPC is set aside and the fine, if paid, is directed to be refunded. The appellant is convicted under Section 304 Part I, IPC and is directed to suffer rigorous imprisonment for 7 years.” (Emphasis added) 8. A decision of this Court in Jogendra Sabara vs. State of Orissa, [Judgment dated 23.01.2002 delivered in Jail Criminal Appeal No. 425 of 1994] has been pressed in the service, to contend that when offence is committed out of anger due to exchange of hot words and by assaulting the deceased which resulted in death cannot be stated to be a murder rather the culpable homicide not amounting to murder. It has been observed in the said report as follows: From the medical evidence it has further transpired that the thoracic cavity was filed with massive dark red blood and, therefore, the deceased met with homicidal death due to server haemorrhage. Considering the cumulative effect of the oral and documentary evidence along with the post mortem report we have no manner of doubt that the offence was committed by the appellant in committing the murder of Kuber. Next it is to be found whether the appellant was provoked by the abrasive language hurled at him by the deceased. It is true that the deceased was unarmed, but at the same time it may not be lost sight of the fact that due to exchange hot words between the appellant and the deceased, the appellant must have lost his mental equilibrium and being incensed with anger had committed the said grisly murder. It is true that in a criminal case intention is not of that consequence and such intention cannot develop at the spur of the moment. The intention cannot be known to any person other than the killer. But from the facts-situation we found that such an act was committed by the accused only after the provocative words hurled by the deceased. From the evidence it has further transpired that the deceased had gone near the house of the appellant in a challenging mood which followed by a heated discussion. But from the facts-situation we found that such an act was committed by the accused only after the provocative words hurled by the deceased. From the evidence it has further transpired that the deceased had gone near the house of the appellant in a challenging mood which followed by a heated discussion. Therefore, in such situation the appellant had committed the offence without any pr-meditation and at the spur of the moment. 9. According to Mr. Panda, in this case also when the appellant was prevented from taking back his wife (PW-2) to his house by the deceased and he was physically prevented by him, he got suddenly enraged, lost his mental balance and struck with Musala which was lying nearby. It is evident from the transaction of crime that there had been no intention to kill or it cannot be gathered that there had been knowledge that the blow can cause the death. Hence, the conviction be altered under Section 304 Part-II of the IPC. 10. Per contra, Mrs. Saswata Patnaik, learned Addl. Government Advocate, appearing for the stated has submitted that this is not a case of single blow but two blows on the vital part of the body. Striking on the head, particularly, over the left parietal and temporal area of skull is the signifier of intention. According to her, there is no infirmity in the finding of the trial court in as much as the prosecution has successfully proved that the culpable act committed by the appellant falls under clause thirdly under Section 300 in as much as it was done with intention to cause bodily injury to the deceased and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause of death. According to Mrs. Patnaik, the illustration provided below Section 300 may be applied in the present case to bring the culpable act within the purview of murder. We have appraised the record of evidence elaborately, noted the relevant part of evidence and heard the submissions of learned counsel for the appellant and the State substantively. 11. We would like to make some initial observation before the grounds of objections are discussed. It has been established to the hilt that the appellant was engaged in a sudden fight with the deceased as the deceased prevented him from taking away his wife (PW-2) as per the settlement. 11. We would like to make some initial observation before the grounds of objections are discussed. It has been established to the hilt that the appellant was engaged in a sudden fight with the deceased as the deceased prevented him from taking away his wife (PW-2) as per the settlement. When the appellant started dragging PW-2 to take her away, the deceased physically obstructed the appellant and there unleashed a sudden fight. There had been no pre-meditation, neither undue advantage was taken by the appellant. Even he did not act in a cruel and unusual manner. 12. From the records of evidence it appears that PW-2 and PW-4 are the eye witnesses of the occurrence and what they have stated is that, when the deceased prevented the appellant, they engaged in a fight and out of rage taking the Musala which was lying nearby, the appellant struck two blows on the parietal region. One blow was on the left parietal and temporal area of the skull and the other was on the right parietal area of the skull. PW-10 has confirmed that the injuries were over the left parietal and temporal area of skull. Fracture of left parietal and right parietal bone and the occipital bone was the cause of death. The prosecution has established the transaction of crime without leaving any space for doubt. Even involvement of the appellant in the death of the deceased is well established. Now, the question that falls on the face of the records is whether the said culpable act was rightly brought under Section 302 or the culpable act was supposed to be brought under Section 304 Part-I or Part-II of the IPC. In this regard, we may refer what has been observed in Virsa Singh (supra) that if the following conditions are satisfied, then the culpable homicide is murder: (a) The act which caused death is done with intention of causing death or is done with intention with a bodily injury. (b) The injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. (b) The injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In Virsa Singh, it has been further stated for purpose of eliminating any doubt that it must be put that there was an intention to inflict that particular injury which in the ordinary course of nature was sufficient to cause death, meaning that the injury found to be present was the injury that was intended to be inflicted. 13. From the transaction of offence, what we have elaborately noted, while discussing the testimonies, it appears that there was no pre-meditation or preparation. When the appellant was obstructed by the deceased from taking back her wife on the very night of occurrence, he got infuriated and he had started to drag PW-2 for taking away from the house of the deceased. It has been stated by the eye witnesses that at that time, the deceased physically prevented the appellant for the purpose of resisting him so that he could not take away his daughter. It has also been found that there was no previous enmity. There was some matrimonial disharmony which was settled prior to the occurrence. The heated exchange of words suddenly transformed into a fight. The deceased did not want to allow the appellant to take her daughter back in that night. When the appellant was prevented and there broke out sudden fight, the appellant lost his senses out of rage and dealt blows on the head of the deceased which caused fracture of left parietal and temporal bone, right parietal bone and occipital bone. Two external injuries were created by the blows even by the appellant. PW-2 has categorically stated that the appellant gave two blows and there was no challenge in the cross-examination. In the cross-examination, even PW-4 has given a reliable account of what happened at the time of occurrence. She has stated that two blows were given by the appellant by means of Musala. On the evidence of this nature, the single blow theory becomes irrelevant but we are of the view that the area where the blows were dealt is on the same region, roughly, located at the upper back area of the skull. In Jogendra Sabara (supra) it had been observed that it is true that in a criminal case, intention is of consequence, but such intention cannot develop at the spur of the moment. In Jogendra Sabara (supra) it had been observed that it is true that in a criminal case, intention is of consequence, but such intention cannot develop at the spur of the moment. Intention cannot be known by any person, other than the killer. But from the fact-situation, it is found that such an act was committed by the appellant only after the provocative words were uttered by the deceased. As there was no premeditation, the act was committed on the spur of moment, the said act requires to be was brought under Section 304 Part-I of the IPC, and not under Section 302 of the IPC and accordingly the appellant is liable to be convicted under Section 304, Part I of the IPC. We have not found that any undue advantage was taken by the appellant. Neither did he act in an unusual cruel manner. The cumulative effect of those observations is that the appellant has committed the culpable homicide not amounting to murder within the ambit of Exception 4 below Section 300 of the IPC. As out of fury the said act was done, we cannot infer that there was intention of causing bodily injury as is likely to cause death. Hence, the conviction is converted under Section 304 Part-I of the IPC, as no intention to cause death has been established by the State. 14. In the result, the impugned Judgment and order of conviction and sentence are set aside. However, the appellant is convicted under Section 304 Part-I of the IPC for the culpable act that he has committed resulting in the death of Bijaya Kumar Majhi. As consequence of the conviction under Section 304 Part-I of the IPC, the appellant shall suffer imprisonment for 10 years with fine of Rs. 5,000/- (Rupees five thousand), in default whereof, the appellant shall suffer 3 months simple imprisonment. 15. In the result, appeal stands partly allowed. 16. Send down the L.C.R. forthwith.