Judgment Shiva Kirti Singh and Subash Chandra Jha JJ. 1. This appeal is directed against the judgment and order dated 24th April, 2002 passed by Additional Sessions Judge-2. Khagaria in Sessions Trial No. 311 of 1995 whereby the appellant has been convicted under sec. 302 of the Indian Penal Code and by order dated 26.4.2002 he has been awarded rigorous imprisonment for life and also a fine of Rs. 2000.00 and in default to undergo rigorous imprisonment for further one year. 2. The Fardbeyan of the informant Ram Bilas Yadav was recorded by Sub-Inspector of Police. Sri Narain Singh of Khagaria Police Station on 15.11.1994 at 22.45 hours at the place of occurrence. The prosecution case which gave rise to Khagaria P.S. Case No. 383 of 1994 is in brief to the effect that on the same day at about 6 P.M. Statto Sharma was hurling abuses while going towards his house through the road. At that time the informant was near the closed betel Gumti Shop of Narain Sao. He got the impression that abuses were directed against him and hence he went near and enquired the reason for abuses. Satto Sharma clarified that abuses were not meant for him and the informant went to his house then at about 7 in the evening the informant and his mother Deoki Devi (the deeased) were at their house and at that time the appellant with .303 (country made pistol) along with five other co-accused which included four brothers and one son of the appellant came variously armed near Bhuskar of Ram Badan Yadav and from there they started hurling abuses. The informant and his mother went near them and at that time wife of the appellant Kala Devi also reached that place. Informants mother objected to the altercation and pleaded that if the informant has committed any wrong then the matter should be settled through Panchayatee. On that the appellant aimed his pistol at mother of the informant. The appellants wife Kala Devi caught the barrel of the pistol and dissuaded the appellant from making any firing but in that position itself the appellant fired the shot hitting the deceased Deoki Devi in the chest causing instant death and it also caused injury in palm of left hand of Kala Devi, the wife of the appellant. The appellants wife Kala Devi caught the barrel of the pistol and dissuaded the appellant from making any firing but in that position itself the appellant fired the shot hitting the deceased Deoki Devi in the chest causing instant death and it also caused injury in palm of left hand of Kala Devi, the wife of the appellant. Allegedly on hulla many people came and witnessed the occurrence which included Chandra Bhushan Yadav (P.W.5). Kamleshwari Yadav (P.W.1). Upendra Yadav (P.W.3) and Chandra Kala Devi (P.W.6). 3. From the materials on record it appears that Sri Narain Singh (P.W.9) took up investigation. He prepared inquest report (Ex-hibit-5) and sent the dead body for postmortem examination to Sadar Hospital. Khagaria. He inspected the place of occurrence seized the blood-stained earth from the place of occurrence recorded the statement of witnesses including that of Kala Devi (wife of the appellant) while she was under going treatment in the Sadar Hospital. Only the formal charge-sheet appears to have been submitted by another police official. After cognizance the case was committed to the court of sessions where charges were framed against all the six named accused persons for offence under sections 302/149 of the I.P.C. and for the offence under sec. 302 against the appellant. The appellant along with two others were also charged under section 148 I.P.C. whereas three others attributed with lathies were charged under section 147 I.P.C. The accused persons pleaded not guilty to the charges. After trial the other five co-accused have been acquitted by the impugned judgment and order whereas the appellant has been convicted and sentenced as already noticed above. 4. The prosecution, in order to prove its case has examined altogether nine witnesses. The informant Ram Bilas Yadav died before he could be examined in the trial. P.W.1 Kaleshwari Yadav, P.W.3 Upendra Yadav, P.W.5 Chandra Bhushan Yadav and P.W.6 Chandrakala Devi have claimed to be eyewitnesses of the occurrence and they also appear to find mention as witnesses in the fardbeyan. P.W.2 Sudhir Soren a Constable is only a formal witness who has proved fardbeyan as Exhibit 1 and formal F.I.R. as Exhibit 2. P.W.4 Bishundeo Sah has claimed to have heard different versions and has taken the stand that he did not see the occurrence nor he gave any statement to the police. P.W.2 Sudhir Soren a Constable is only a formal witness who has proved fardbeyan as Exhibit 1 and formal F.I.R. as Exhibit 2. P.W.4 Bishundeo Sah has claimed to have heard different versions and has taken the stand that he did not see the occurrence nor he gave any statement to the police. It further appears that the prosecution has cross-examined him in respect of his earlier statement made before the police but since after four years of the occurrence he clearly admitted that he has not seen the occurrence. His version is of no help to the prosecution. P.W.7 Ram Badan Yadav is also a formal witness who has proved his an another signature on the inquest report as Exhibits 3 and 3/1. P.W.8 Dr. Awadhesh Kumar Yadav held autopsy on the dead body of the deceased. He found a fire-arm injury on the chest and bullet was lodged inside. He has proved the post mortem report as Exhibit 4. P.W.9 Sri Narayan Singh the then Officer Incharge of Khagaria Police Station is the Investigating Officer. 5. The defence has examined three witnesses. D.W.1 Siva Ram Paswan is a co- villager, who has claimed to have heard Hulla at 7.00 P.M. and when he went to the concerned place of occurrence he found the deceased lying dead. He has not claimed to have seen the occurrence. D.W.2 Kala Devi is the wife of the appellant and it is through her mouth that the defence has come forward with a specific case which has been suggested to the eye-witnesses also that at the relevant time there was abuse by the informant Ram Bilash Yadav at or near the Darwaja of the accused-appellant. According to D.W.2. the informant had come with four persons whom she did not identify. The informant fired from a 302 (country made) pistol. She bent and dodged the bullet but the same caused injury on her left palm and entered into the chest of the informants mother who was running and rushing to the place of occurrence. D.W.3 Dr. Shri Mohan Thakur has proved injury report of D.W.2 as Exhibit A. According to D.W.3. on 15.11.1994 the injury report of D.W.2 was recorded in the injury register of Khagaria Sadar haspital. D.W.3 Dr. Shri Mohan Thakur has proved injury report of D.W.2 as Exhibit A. According to D.W.3. on 15.11.1994 the injury report of D.W.2 was recorded in the injury register of Khagaria Sadar haspital. According to the said injury report, D.W.2 had sustained one lacerated wound on lateral surface of left hand- 1 1/2" x 1/2"x 1/2" with blackened margin with tattoing mark around the injury. According to the doctor, the injury was by fire-arm and simple in nature. In cross-examination by the Additional Public Prosecutor he has replied that if one attempts to catch the barrel when the fire-arm is being fired, such injury may be possible. 6. On going through the evidence of eye-witnesses such as P.W.1, P.W.3, P.W.5 and P.W.6 this Court finds that the prosecution case as alleged by the informant in his fardbeyan, has been supported by these witnesses in all material particulars. In fact even the suggestion and specific defence case in support of which wife of the appellant has been examined as D.W.2 shows that there is practically no dispute in respect of time or place of occurrence and the dispute is only in respect of manner of occurrence. As per prosecution case, the appellant fired from his country made pistol at the deceased even while his wife was trying to dissuade him and was holding the barrel of the pistol. Allegedly the shot fired by the appellant caused injury on the palm portion of left hand of appellants wife and in the chest of the deceased causing death of the deceased. According to the defence in course of altercation or abuse the informant Ram Biias Yadav (who subsequently died before being examined in course of trial) aimed and fired at D.W.2 the wife of appellant but she managed to bend and save herself and therefore the bullet caused injury on her left hand and went on to pierce the chest of the deceased causing her death. 7. The issue for determination is whether the prosecution has been able to prove its case beyond reasonable doubt or the defence version is also probable and therefore the appellant can be given benefit of doubt or not. 8. 7. The issue for determination is whether the prosecution has been able to prove its case beyond reasonable doubt or the defence version is also probable and therefore the appellant can be given benefit of doubt or not. 8. On giving anxious consideration to the materials on record particularly the statement of eye-witnesses noticed above whose presence is mentioned in this fardbeyan, this Court finds that there is absolutely no good reason to disbelieve their testimony only on the spacious submission that they are from the Yadav caste and/or related to the informant and the deceased. A relation witness cannot be disbelieved only on account of relationship and the settled principle of law is to scrutinise the evidence of such witnesses with caution. In the present case as noticed above the time and place of occurrence are practically admitted by the parties and also proved by the documentary evidence such as the fardbeyan, the inquest report, the seizure list and the objective findings of the Investigating Officer P.W.9. Even the date on which D.W.2 was examined by D.W.3 shows that the occurrence took place on 15.11.94 and there is no good reason or any motive for changing the time of the alleged occurrence. So far as the manner of occurrence is concerned the post mortem report of the deceased shows single fire-arm injury to be the cause of death as alleged by the prosecution. The injury report of D.W.2 as proved by the doctor D.W.3 is one of the objective circumstances which also helps to corroborate the claim of the prosecution witnesses rather than helping the defence. According to the prosecution case, D.W.2 sustained firearm injury in her left palm while holding the barrel of pistol which was in the hand of the appellant. According to the defence case, she received injury from some distance when allegedly the informant fired at her but she managed to dodge and miraculously avoid bullet to a large extent. The injury sustained by D.W.2 shows blackening marks which is possible only from very close range. The medical evidence available on record does not create any doubt regarding truthfulness of the prosecution case regarding the manner of occurrence. 9. The injury sustained by D.W.2 shows blackening marks which is possible only from very close range. The medical evidence available on record does not create any doubt regarding truthfulness of the prosecution case regarding the manner of occurrence. 9. Learned counsel for the appellant has advanced his submission that because the dead body appears to have been received for postmortem examination at 3 P.M. of 16.11.1994 hence this court should presume that the fardbeyan and F.I.R. were not reliable and authentic. This court finds no merit in such submission particularly when no cross- examination has been made of the concerned witnesses and no material has been elicited to show that there was any un-usual delay in taking the dead body to the hospital and that such delay was not explainable. It has further been submitted on behalf of the appellant that according to prosecution witnesses darkness had set in at about 7 P.M. in the month of November, 1994 and therefore the claim of identification made by the prosecution witnesses should not be believed in absence of any source of light near the place of occurrence. The witnesses are co-villagers and they have stated in their deposition that although darkness had approached but they clearly could identify co-villagers who were involved in the occurrence on account of exchange of abuses. As claimed by both the parties people had assembled close to the place of occurrence and were witnessing the occurrence taking place among co-villagers. In such circumstances the claim of witnesses of having identified the accused who fired the fatal shot from a close range cannot be disbelieved. 10. In the facts of the case we also find no merit in the submission that the prosecution version is distorted and unreliable and therefore in the light of two versions of the occurrence the conviction of the appellant should be set aside. The prosecution version as noticed above is not found to suffer from any such distortion so as to make it unreliable. Even the submission that investigation by the I.O. was not fair does not appear to have any substance. He has stated that he went to the police station and recorded the evidence of P.W.2 in course of investigation. The prosecution version as noticed above is not found to suffer from any such distortion so as to make it unreliable. Even the submission that investigation by the I.O. was not fair does not appear to have any substance. He has stated that he went to the police station and recorded the evidence of P.W.2 in course of investigation. That fact has been admitted by D.W.2 also that she was examined by the I.O. In such circumstances it is not possible to accept the criticism levelled by learned counsel for the appellant that prosecution case should be disbelieved on account of un-fairness in the investigation. 11. The last submission advanced on behalf of appellant is that the offence even on the basis of proved facts and circumstances will not amount to an offence under section 300 I.P.C. because of Exception 1 to section 300 I.P.C. is not fit to be accepted. Exception 1 to sec. 300 of the I.P.C. provides that 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. The main ingredient of this Exception is that there must be such grave and sudden provocation which causes deprivation of the power of self control in the given situation. The explanation to the Exception 1 is clear that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. The illustrations given under the explanation are useful. According to learned counsel for the appellant illustration (b) would be applicable in this case because the appellant neither intended nor knew that he was likely to kill the deceased and she was apparently killed by mistake or accident. 12. The aforesaid submission in the facts of the case is misconcieved because the prosecution as proved by the witnesses is that the appellant aimed and fired at the deceased lady an old person without any arms when she was only trying to pacify the matter. It has also been proved that the appellant fired in spite of attempts by his wife to dissuade him from firing. In such circumstances it is not possible to accept that the deceased had caused any provocation to the appellant. It has also been proved that the appellant fired in spite of attempts by his wife to dissuade him from firing. In such circumstances it is not possible to accept that the deceased had caused any provocation to the appellant. Here the facts are similar to the facts in the illustration (a) to explanation under Exception 1 to Sec.300 of the I.P.C. 13. Thus on a careful and anxious consideration of all the relevant facts it is not possible to hold that the prosecution has failed to prove its case beyond all reasonable doubt. It is also not possible to hold that appellant is not guilty of sec. 302 I.P.C. but to the offence under sec. 304 I.P.C. The Impugned judgment and order suffers from no legal or factual infirmity so as to warrant any interference. The appeal is therefore dismissed.