Orissa High Court
Jakrias Bada vs State Of Odisha on 10 March, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
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]
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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
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imprisonment for life vide judgment dated 29.04.2004. Saidjudgment 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
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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
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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.
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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
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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,
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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.
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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
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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
Page 9 of 15
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 the22006 7 SCC 391
Page 10 of 15
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
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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
Page 12 of 15
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
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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,
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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 ofNot
Signature Orissa,Cuttack.
Verified
th of March, 2026/ Puspanjali Ghadai, Jr. Stenographer
The 10Digitally Signed
Signed by: PUSPANJALI GHADAI
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 10-Mar-2026 16:20:22
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