IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 211 of 2004 (From judgment dated 29.04.2004, passed in Sessions Trial Case No. 158/69 of 2003 by Adhoc Additional Sessions Judge, Sundargarh) Jakrias Bada ……. Appellant -Versus- State of Odisha ……. Respondent Advocates appeared in the case through hybrid mode: For Appellant : Mr. S.A. Nayeem, Advocate -Versus- For Respondent : Ms. Suvalaxmi Devi, [Additional Standing Counsel] --------------------------------------------------------------------------- CORAM: THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA Date of Hearing: 26.02.2026 Date of Judgment:10.03.2026 Sashikanta Mishra,J. The appellant before us faced trial for murder in S.T. Case No.158/69 of 2003 in the Court of learned Adhoc Additional District and Sessions Judge, Sundargarh and being convicted of the said offence was sentenced to imprisonment for life vide judgment dated 29.04.2004. Said judgment is impugned in the present appeal. 2. Prosecution case, briefly stated, is that on 18.06.2002 at about 8 P.M. the deceased (Herman Bada) was lying on a mat placed on a rocky surface in front of their house due to heat.His wife and daughters were separating mahua flowers from their seeds. At that time, the accused-Jakrias Bada, who is the son of the deceased from his first marriage, came and demanded his share of the land in village Mahulagaon. The deceased asked him to wait till marriage of his other son and daughters. At this, the accused was enraged and brought out a bamboo stick and assaulted the deceased with it. As a result, he died at the spot. The wife of the deceased and his daughters concealed themselves out of fear and found the deceased dead after their return with blood flowing from his nostrils. They informed the matter to Jusab Kerketta, who was the Ward Member. When Jusab asked the accused about the incident, he confessed of killing him for not conceding to his demand for share in the land. Jusab lodged a report before Talasara Police Station basing on which P.S. Case No.36 of 2002 was registered followed by investigation. Upon completion of investigation, the charge sheet was submitted against the accused under Section 302 of IPC. 3. The accused took the plea of denial. Additionally, he claimed that his father was ill and that he fell down on the rocky surface at about 11 P.M. in the night and asked for water, which was given to him and thereafter, he asked his mother and sisters to call Nicolas Francis Lakra but no one responded in the night. He informed everyone at about 4 A.M., hearing which all the villagers came. 4. To prove its case, prosecution examined thirteen witnesses and exhibited nine documents. Besides, prosecution examined three material objects. Defence, on the other hand, did not adduce any evidence. 5. The trial Court, after analyzing the medical evidence found that the death of the deceased was homicidal in nature negating the plea of the accused that it was caused due to fall on rocky surface. The trial Court then took into account the evidence of the eye witnesses, extra judicial confession of the accused and his disclosure statement to hold that the evidence was fool-proof being consistent, clear and reliable. Holding that the accused was the author of the crime, the trial Court convicted him and sentenced him as already stated herein before. 6. Heard Mr. Shaik Abdul Nayeem, learned counsel for the Appellant and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State-Respondent. 7. Mr. Nayeem assails the impugned judgment on the ground that there is clear evidence that P.W.2 and P.W.3 were inimical towards the accused being his step-mother and step-sister respectively. Even otherwise, their evidence is full of contradictions. The trial Court committed error in ignoring the evidence of P.W.8, wife of the deceased who immediately attended to the deceased after the occurrence. Mr. Nayeem further argues that even otherwise, the case would fall within the exception to Section 300 and therefore, would not amount to murder. 8. Per contra, Ms. Suvalaxmi Devi would argue that there is no evidence of any enmity between P.Ws.2 and 3 and the accused. Only because they were his step-mother and step-sisters does not ipso-facto mean that they were inimical to him. She further argues that the version of P.Ws.2 and 3 is clear, consistent and without any material contradictions. The evidence of P.W.8 itself proves the prosecution case in material particulars. Page 5 of 15 As regards the contention that the case would fall under exceptions, Ms. Suvalaxmi Devi would submit that refusing to grant him share in the property cannot be treated as a sudden and grave provocation as the accused had been demanding his share since long. Moreover, the deceased was lying on the ground when the accused assaulted him by means of a bamboo stick. So, it is also not a case of sudden quarrel. 9. We have considered the rival contentions and have gone through the case record carefully. P.W.2, wife of the deceased and step-mother of the accused, is one of the eye witnesses. She described the occurrence in vivid detail. It is in her evidence that when the deceased was sleeping in the courtyard, the accused came and demanded share from the landed property at Mahulagaon village. The deceased asked him to wait till marriage of all sons and daughters. At this, the accused being furious brought out a bamboo stick and assaulted the deceased. Her testimony remains unshaken in cross-examination and sans any contradiction whatsoever. 10. Similarly, the version of P.W.3, daughter of the P.W.2, corroborated P.W.2 in material particulars. P.W.4 is the person before whom the accused confessed of killing the deceased and so also P.W.1. Their evidence is also clear and consistent. The witness to disclosure of the bamboo stick is P.W.6, who deposed about the recovery of the bamboo stick at the instance of the accused. P.W.7 is also another witness to the disclosure. We have also perused the evidence of autopsy surgeon-P.W.11, who found the following two injuries:- “(1)Lacerated wound over middle of occipital scalp, (2)Haematoma over left frontal scalp.” He categorically stated that the cause of death was due to such injuries and also opined that the same could be caused by the bamboo stick recovered by the I.O. He also categorically stated that the deceased did not die due to asthma. 11. Having referred to the evidence in the preceding paragraphs we shall now proceed to deal with the contentions raised by both parties. It is not disputed that the accused is the son of the deceased from his first wife. P.W.2 is his second wife from whom P.W.3 was begotten. There is no evidence worth the name to suggest that P.Ws.2 and 3 were inimically disposed towards the accused. We find force in the argument of learned State counsel that merely being the step-mother and step-sister does not ipso-facto make them inimical to the deceased and then, defence has not suggested a motive as to why they should be inimical to him, if at all. 12. As regards the objection that the evidence of P.Ws. 2 and 3 is marred by contradictions, we are not inclined to accept the same. As already stated, we find the version of P.Ws.2 and 3 fully consistent, reliable, trustworthy and without any contradiction. 13. As regards the version of P.W.8, we find that the trial Court has also considered her evidence but held that she was obviously trying to cover up the act of her husband, which was only natural. She stated that hearing hulla from her in-laws, she rushed to the spot and gave water to her father-in-law and that she found bleeding injuries on the face, eye, chest and head of the deceased. Surprisingly, she could not say how the deceased got such injuries. Since she was a member of the family and was present in the same house, it is obvious that she was feigning ignorance to save her husband. 14. Thus, insofar as the prosecution allegation that the deceased died because of the assault by the accused is concerned, we find no reason to differ from the conclusion arrived at by the trial Court. Page 8 of 15 15. Now, coming to the important question as to if the act of the accused would fall under any of the exceptions to Section 300 thereby making it culpable homicide not amounting to murder, we have carefully examined the medical evidence. As already stated, the deceased sustained two head injuries, both of which were sufficient to cause death in ordinary course of nature. Defence has tried to draw mileage from the fact that the assault was preceded by quarrel and contends that because of such quarrel, the deceased lost self-control and assaulted his father.It is also suggested that refusal to grant him share of land also amounts to sudden and grave provocation. 16. The State counsel vehemently argues that the evidence does not at all suggest any fight between the deceased and accused. The accused demanded his share, to which the deceased told him to wait till the marriage of the rest of siblings. This cannot either be treated as a quarrel or an act of provocation. There is no evidence nor is it the case of defence that the deceased had engaged in any fight with the accused. 17. The question is, whether the refusal of the deceased to grant share of the land at that exact time to the accused would be an act of sudden and grave provocation. Section 300, exception1 reads as follows:- “Exception-1— When culpable homicide is not murder— Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.” 18. What would amount to a sudden and grave provocation is obviously a question of fact. In the case of K.M. Nanavati V. State of Maharashtra1 the Supreme Court laid down the following tests “85. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.” 19. We are also inclined to accept the contentions of the State counsel that a mere statement by the deceased to wait for grant of share in the property cannot be treated as sudden and grave 1AIR 1962 SC 605 provocation- more so, when it is borne out from the evidence on record that the accused had demanded his share on some occasions prior to the occurrence also. Significantly, it is borne out from the evidence of P.W.-2 that the accused had some land in Mouza-Thetentangar but still he demanded share from the land in Mahulgaon. So, it is not the case where he being landless was rightfully demanding share of the Mahulgaon land. 20. Whether the case would fall under Exception-4 is now to be considered.Exception-4 reads as follows:- “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.” 21. For Exception-4 to operate, certain ingredients are required to be satisfied as held by the Supreme Court in the case of Pappu V. State of Madhya Pradesh2. The following observations of the Supreme Court are noteworthy:- "The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the 22006 7 SCC 391 direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel." 22. The evidence in the present case suggests that the accused came and demanded his share when the deceased was lying on his mat placed on rocky surface. The deceased asked the accused to wait till marriage of his sons and daughters. This prompted the accused to bring out a bamboo stick and assault the deceased. There is simply no evidence of a fight having taken place between the two. In the case of Armungam V. State3, the Supreme Court reiterated that for the application Exception-4 it is not sufficient to show that there was a sudden quarrel and there was no premeditation and that it must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. 23. As already discussed, the deceased was lying down when the accused came and demanded his share. All that the deceased did was to ask the accused to wait till marriage of his sons and daughters. We have already held that this does not amount to sudden and grave provocation or a quarrel or fight. The fact that the accused at this stage brought out a bamboo stick and mercilessly assaulted the deceased shows that he took undue advantage of the fact that the deceased was lying down. We are inclined to hold as above, more so because the accused assaulted the deceased on his head, which is obviously a vital part of the body. We therefore, find that Exception-4 has also no application. In this context, the fact that the accused had been demanding share of the land even prior to the occurrence assumes significance as it shows him harbouring ill-will towards his father. 32008 15 SCC 590 It was not the first time that he asked for share and his father refused. In fact, his father never refused but only asked him to wait till his other children were married. 24. We have also taken note of certain recent judgments of the Supreme Court in the case of Major Singh v. State of Punjab & Anr.4, Mohd. Rafiq alias Kallu v. State of Madhya Pradesh5 and Ubesh Khan v. The State Govt. of NCT of Delhi6, wherein the Court has elaborately considered the distinction between the offence of murder punishable under Section 302 IPC and culpable homicide not amounting to murder punishable under Section 304 IPC. The Supreme Court has reiterated that though culpable homicide is the genus and murder is its species, the distinction between the two offences primarily rests on the degree of intention and knowledge accompanying the act. The Court has further observed that in determining whether a particular act would fall within the ambit of Section 302 IPC or Section 304 IPC, the surrounding circumstances of the occurrence must be carefully examined, such as the nature of the weapon used, whether the weapon was carried by the accused or picked up at the spot, the part of the body targeted, the force employed in 4 (2022) 6 S.C.R 800 5 (2021) 10 SCC 706 6 Crl. Appeal No.-518 of 2011 causing the injury, whether the act occurred in the course of a sudden quarrel or fight, the existence of any premeditation, and whether the accused inflicted a single blow or multiple blows. The Court has emphasized that the pivotal consideration is the intention of the accused, which has to be gathered from the total effect of the facts and circumstances on record. 25. Applying the aforesaid principles to the facts of the present case, this Court finds that the accused came to the spot and demanded his share in the landed property and upon the deceased asking him to wait till the marriage of the other children, the accused became furious as his request was not conceded at that time, though such a demand had been made by him earlier as well and assaulted the deceased by means of a bamboo stick by inflicting two blows, which caused the death of the deceased. The assault was directed at the head of the deceased, which is a vital part of the body. The medical evidence further corroborates the prosecution case that the injuries sustained by the deceased were sufficient to cause death in the ordinary course of nature. It is also evident that the deceased was lying on a mat in front of the house at the time of the occurrence and was taking rest when the accused assaulted him. Therefore, the accused clearly took undue advantage of the situation and acted in a cruel manner against an unarmed victim. 26. Having held so, we are convinced that the act of the accused in causing the death of the deceased by assaulting him would amount to murder. Consequently, we hold that the accused was rightly convicted under Section 302 of IPC for which the impugned judgment warrants no interference. 27. In the result, the appeal fails and is therefore, dismissed. The appellant being on bail, his bail bond be cancelled and he be taken into custody forthwith for serving the remaining part of the sentence. .......................................... (Sashikanta Mishra, J) Manash Ranjan Pathak, J I agree. …........................................ (Manash Ranjan Pathak, J) High Court of Orissa,Cuttack. The 10th of March, 2026/ Puspanjali Ghadai, Jr. Stenographer Designation: Junior Stenographer Location: High Court of Orissa, Cuttack. Date: 10-Mar-2026 16:20:22