The main legal point established in the judgment is the application of Exception 4 to Section 300 of the Indian Penal Code, which led to the alteration of the conviction from Section 302 to Section 304, Part-I.

S. N. PHUKAN, C. J.

( 1 ) THE accused-appellant Gayadhar Naik was booked for trial under Sections 302 and 201 of the Indian Penal Code before the learned Sessions Judge, Dhenkanal. The case was registered as S. T. Case No. 136 of 1980 and the learned Sessions Judge found the accused guilty under Section 302, I. P. C. and accordingly convicted him to suffer imprisonment for life. The accused-appellant was found not guilty under Section 201, I. P. C.

( 2 ) THE prosecution case, briefly stated; is that in the evening of 9-9-1989 while the deceased-Sambhu Manigira and Banshidhar Naik (P. W. 1), were returning from Sanjamura to their village Kumbhamunda after taking liquor, on the way they met the accused-appellant and there was exchange of hot words between the accused and the deceased over "pidha Puja". The prosecution has further alleged that the accused pushed the deceased into the Satidhara Nala at Gangadhar ghat and the deceased fell into the water. The further allegation is that the accused thereafter pulled him out of the Nala and gave three strokes with stones on his head resulting in his death. The dead body was thrown into the Nala and the accused fled away.

( 3 ) INITIALLY a report was made at the Kishorenagar Police Station after the dead body of the deceased was found floating in the Nala which was registered as U. D. Case No. 2 of 1989 about two days after the occurrence. The Officer-in-Charge of the aforesaid Police Station in course of his enquiry in the above U. D. case held inquest over the dead body and sent the dead body for postmortem examination. Three stones and the blood stained Dhoti and Banian (M. Os. I and II) and the Napkin (M. O. III) belonging to the accused were seized. During the course of investigation, witnesses were examined under Section 161, Cr. P. C. and also statements ofsome witnesses were recorded by the Magistrate under Section 164, Cr. P. C. There was also an extra judicial confession before P. W. 3 whose statement has been duly recorded by the Magistrate under Section 164, Cr. P. C. The seized articles were sent for chemical examination and serological test to the State Forensic Science Laboratory, Bhubaneswar. On completion of investigation, the police submitted the charge-sheet under the above Sections.

( 4 ) THE accused-appellant pleaded not guilty to the above charges and further stated that as Banshi (P. W. 1) was hostile to him, he has been falsely implicated.

( 5 ) THE prosecution in order to prove its case has examined nine witnesses including the Investigating Officer and doctor.

( 6 ) WE have, heard Shri Acharya, learned counsel for the appellant, and Shri Mohanty, learned Additional Public Prosecutor for the State.

( 7 ) NOW let us scan the evidence on record. P. W. 1 Banshidhar Naik, has stated in his evidence in chief that there was a, quarrel between the accused and the deceased and both were in a drunken state. According to him, the accused gave a push to the deceased on the Satidhara Nala as a result of which the deceased fell into the water of the Nala. The accused then pulled out the deceased, who was drenched, from the Nala and gave three blows by means of stones hitting the back side of the head of the deceased. Though P. W. 1 has stated, that the accused chased and captured him and threatened that he would murder him in case the incident was divulged to the co-villagers, we are unable to accept this part of the statement that there was an extra judicial confession. In cross-examination, he has also admitted that on the date of occurrence he had been to the village Sanjamura with the deceased to take liquor and after taking liquor they returned at about 7. 30 p. m. and the accused did not accompany, them to village Sanjamura. According to him, he met the accused in front of the house of one Hadi Kamar in the said village. He was not present at the time of "pidha, Puja". He has totally pleaded ignorance as to why the accused pushed the deceased or assaulted him.