Exception IV to Section 300 IPC allows for culpable homicide not amounting to murder in cases of sudden fights or quarrels without premeditation or undue advantage.

JUDGMENT :

DEEPAK KUMAR TIWARI, J.

1. This appeal is against the judgment of conviction and order of sentence dated 31st December, 2019 passed by the Additional Sessions Judge, Kondagaon, District Kondagaon in Sessions Case No. 106/2017 whereby the appellant has been convicted under Section 302 of I.P.C. and sentenced to undergo RI for life and to pay a fine amount of Rs.5000/- and in default of payment of fine, to further undergo additional imprisonment for six months.

2. The prosecution case, in brief, is that deceased Negiram and the appellant are the real brothers. On 1st September, 2017, the deceased alongwith his minor son Chamra Ram (PW-8), in the evening at about 5-6 pm, had gone to see his field situated at Kerapadar Para, Fukagirola. When they reached near the house of the appellant, the appellant started raising quarrel with the deceased and also abused him in filthy language. Chamra Ram (PW-8) came to the house and narrated the incident to his mother Manai Bai (PW-7) and uncle Nakinath (PW-5) that the appellant quarreled with his father and also beaten him. Then they reached to the spot and found that in the premises of the house of the appellant, dead body of the deceased was lying and blood was oozing. Then they informed to the village Patel Mahesh Lal Markam (PW-1) and Nakinath (PW-5) had given the merg intimation Ex.P-6.

3. In the merg enquiry Panchnama, upon the notice Ex.P-1, Ex.P-2 was prepared and on the memorandum statement (Ex.P-3) of the appellant, the weapon, the axe, which has been used for causing injury to the deceased, was recovered vide Ex.P-4. The dead body of the deceased was subjected to postmortem and Dr. Aditya Chaturvedi (PW-9) had opined that the cause of death was due to cardio pulmonary shock due to excessive hemorrhage and nature of death is homicidal in nature. The axe has also been examined by him vide Ex.P-8 and opined that from said weapon injury may be caused to the deceased. Blood stained soil has been collected from the spot vide Ex.P-5. Statements of the witnesses were recorded. The FSL report (Ex.P-15) shows presence of human blood on the axe recovered from the appellant marked as article C and clothes of the deceased marked as article D-1 and D-2.

4. After completion of the investigation, the charge sheet was filed. The appellant abjured his guilt during the course of trial and claimed to be tried. The trial Court after hearing learned counsel for the parties and on the basis of material available on record, convicted and sentenced the appellant as mentioned in para-1 of this judgment.

5. In order to prove its case, the prosecution has examined as many as 10 witnesses and exhibited 15 documents. Appellant in his statement recorded under Section 313 of Cr.P.C. has stated that he has been falsely implicated and he has not examined any defence witness.

6. Learned counsel for the appellant would submit that the prosecution has failed to establish the motive and there was only one eye witness who is minor son of the deceased and at the time of the incident, he was aged about 7 years only who might be a tutored witness. Alternately he would submit that in the same incident, the appellant has also sustained two injuries and only single injury was caused to the deceased which was opined by doctor as lacerated wound, so during such incident, though axe has been used but there is a possibility that sharp side has not been used. He would further submit that if there was an intention to kill the deceased, then certainly sharp side of the weapon would have been used in the said incident. Learned counsel would submit that considering these facts, the offence under Section 302 of IPC would not be attracted.

7. Per contra, learned counsel for the State would submit that there was an enmity and land dispute between both the brothers and on the date of incident, while the deceased along with his son was on the way to his field, the appellant with an intention to kill the deceased started quarreling and b