The refusal of a land share does not constitute grave provocation; thus, the act remains murder when the assault is premeditated and involves a deadly weapon against a defenseless victim.

JUDGMENT :

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 the