JUDGMENT D.N. Upadhyay, J. Heard the parties. 2. This criminal appeal has been directed against the Judgment of conviction and order of sentence dated 06.03.2002, passed by the District and Sessions Judge, Pakur in Sessions Trial No. 35 of 2001 whereby the appellants have been held guilty for the offence under Section 302/34 of the Indian Penal Code and sentenced him to undergo R.I. for life. The appellant namely Motilal Murmu has further been held guilty for the offence under Section 307 of the Indian Penal Code and sentenced to undergo R.I. for three years. Both the sentences so passed were directed to run concurrently. 3. The prosecution case, as it appears from the Fardbayan of Ram Lal Marandi recorded on 19.01.2001 at 21:00 hrs in village Bhilai within the Police Station Maheshpur, District – Pakur is that on 19.01.2001 at 4:00 p.m., the informant and his brother Lelha Marandi (deceased), had suggested Motilal Murmu to settle the dispute prevailing between them and there will be no benefit to any of them if the matter lingers in Court. Talk between Murmu and the informant was going on in alley (Gali) situated near their house. Motilal Murmu did not agree to the proposal where after exchange of hot words took between them. Motilal Murmu became furious, went to home and returned back with bows and arrows in his hand accompanied by the appellant Parmeshwar Murmu, Surin Murmu, Chunda Tudu, who were armed with axe. Lelha Marandi (deceased) was targeted first by Surin Murmu, who caused assault on his head by means of Tangi (axe). After having injuries, Lelha fell down. Thereafter, Chunda Tudu, caused assault to Lelha by means of Tangi. The informant raised alarm but he was shot by arrow by Motilal Murmu and sustained injuries on his right elbow. The appellants, after causing assault to Lelha, took the dead body and kept it in the courtyard of the house of Motilal. The reason behind the incident is the land dispute prevailing between the parties from before. 4. On the basis of Fardbayan, Maheshpur P.S. Case No. 02/2001 under Sections 302/34 of the Indian Penal Code against all the appellants was registered and the investigation commenced. After completing investigation, the appellants were charge-sheeted and they were directed to face trial for the offence punishable under Sections 302/34, 201/ 34 when they pleaded not guilty. 4. On the basis of Fardbayan, Maheshpur P.S. Case No. 02/2001 under Sections 302/34 of the Indian Penal Code against all the appellants was registered and the investigation commenced. After completing investigation, the appellants were charge-sheeted and they were directed to face trial for the offence punishable under Sections 302/34, 201/ 34 when they pleaded not guilty. Motilal Murmu was also charged for the offence punishable under Section 307 of the Indian Penal Code for causing injury to the informant. 5. The prosecution has examined altogether ten witnesses and proved the inquest report, postmortem report and the other documents. Som Marandi (P.W.-1), Nand Lal Marandi (P.W.-2), Pandu Marandi (P.W.-5) and Ram Lal Marandi (P.W.-8 – Informant) have projected themselves as eye witnesses whereas Dr. Lalit Kumar Bhagat (P.W.-3) had conducted postmortem examination on 21.01.2001 on the dead body of Lelha Marandi and Dr. Vijay Shankar Prasad (P.W.-9) had examined the informant – injured and proved the injury report (Ext.-3). Kail Marandi (P.W.-4), Boka Marandi (P.W.-6), Rishivar Hansda (P.W.-7) who had claimed that they had witnessed part of the incident after hearing 'Hulla' Gauri Shankar Tiwari (P.W.-10) happens to be the Investigating Officer. 6. The findings of the learned Sessions Judge is mainly based on the evidence of P.Ws.-1, 2, 5 and 8 and, therefore, it is needed to give sum and substance of evidence of the aforesaid witnesses. 7. P.W.-1-Som Marandi has stated that the occurrence took place on Friday at about 4:00 p.m. while he was present near the house of Birju. He heard Hulla raised by Motilal Surin and Parmeshwar and saw them having Kulhadi, Bows and Arrows in their hand. They had assaulted Lelha Marandi. Surin assaulted Lelha Marandi by means of Tangi on his head. Motilal caused injury to Ram Lal by shooting arrow. The mother of Lelha had reached to the place to save him but Lelha died at the spot. He has identified the accused persons in Court. In his cross examination, he has given the details of the strength of family of the appellants and the informant party. It is also confirmed by him that festival of Sohrai (Bandhna) was celebrated on the date of incident. The people of the village were divided into two groups. But he has denied that the incident was the result of differences held between two groups. It is also confirmed by him that festival of Sohrai (Bandhna) was celebrated on the date of incident. The people of the village were divided into two groups. But he has denied that the incident was the result of differences held between two groups. He further admits that his statement was not recorded by the Police but he has given his L.T.I. on the documents prepared on the date of incident itself. 8. Nand Lal Marandi (P.W.-2) has said that he had seen Surin hurling Tangi blow to Lelha Marandi and Motilal causing injury to Ram Lal by using arrow. Parmeshwar and Chunda were armed with Tangi. The dead body of Lelha Marandi was dragged to the house of Motilal by all the appellants. The Police had prepared some documents relating to deceased on which he had given L.T.I. Contradictions have been taken in paragraph-6. Pandu Marandi (P.W.-5) has supported the prosecution case and deposed that he had seen Motilal Murmu, Surin Murmu, Parmeshwar and one more person at the place of occurrence. Motilal caused injury to Ram Lal by using arrow and thereafter, Motilal, Surin, Parmeshwar and Chunda caused assault to Lelha and took the dead body to the house of Motilal. Motilal was armed with bows and arrows whereas, remaining accused were having Kulhadi in their hand. Ram Lal Marandi (informant) is the brother of deceased and he has supported the prosecution case. He has stated that on the date of incident at about 4:00 p.m., he along with his brother Lelha, were present in the alley situated near their house. He had suggested Motilal to settle the dispute prevailing between them. Motilal did not agree with the proposal and became furious, went home and returned back with bows and arrows accompanied by Parmeshwar Surin and Chunda, who were armed with Tangi. Surin Murmu hurled Tangi blow on the head of Lelha after which Lelha fell down and started scrambling. Thereafter, Parmeshwar and Chunda assaulted Lelha by means of Tangi. When he raised alarm, Motilal caused injury to him on his right elbow by using arrow. He ran from the place to save his life but saw the accused persons taking away dead body of Lelha to the house of Motilal. His Fardbayan was recorded by the Police Officer and he has proved his signature as Ext.-2 and the signature of Rameshwar Marandi as Ext. -2/1. 9. Dr. He ran from the place to save his life but saw the accused persons taking away dead body of Lelha to the house of Motilal. His Fardbayan was recorded by the Police Officer and he has proved his signature as Ext.-2 and the signature of Rameshwar Marandi as Ext. -2/1. 9. Dr. Lalit Kumar Bhagat (P.W.-3) had conducted Postmortem Examination on the dead body of Lelha Marandi (deceased) on 20.01.2001 at 10:00 p.m. and found the following injuries:- (i) one lacerated wound on right side of head at right temporal region measuing 10” x 2” x 2”; (ii) one lacerated wound on scalp at back of head on occipital region measuring 1” x 1/2” x 1/2”; (iii) one incised wound at right back side of scalp at right parietal region measuring 2” x 1” x 1”; (iv) Fracture of right side of temporal bone leading to brain material coming out of skull bone; (v) one incised wound at right shoulder joint measuring 1” x 1/2” x 1/2”; (vi) one upper incisor teeth has broken down leading to bleeding gum; (vii) one abrasion at left bacic of elbow joint measuring 1” x 1/2” In cross examination, he has stated that there may be margin of one or two hours on either side in the time elapsed since death till P.M. Examination. 10. Dr. Vijay Shankar Prasad (P.W.-9) had examined the informant Ramlal Marandi on 19.01.2001 at 10:50 p.m. and found (i) sharp cutting wound 1/2” x 1/4” on the right elbow posteriorly (ii) Swelling to elbow joint. Injury no. (i) arrown and injury no. injury within 12 hours. was caused by sharp cutting substance such as (ii) was caused by hard blunt substance. Age of 11. Gauri Shankar Tiwari (P.W.-10) is the Investigating Officer. He has said that on 19.01.2001, at 19:00 hrs., he heard rumour that some serious incident had taken place in village – Bhilai then he entered the information in the Station Diary and proceeded along with other Police officials to the village Bhilai to verify the information. 12. The Fardbayan of Ramlal Marandi was recorded by him and proved as Ext.-4. After taking charge of investigation, subsequent statement of informant was recorded and place of occurrence was inspected by him. He has described both place of occurrence (i) where incident of assault took place; and (ii) where the dead body of Lelha was lying. 12. The Fardbayan of Ramlal Marandi was recorded by him and proved as Ext.-4. After taking charge of investigation, subsequent statement of informant was recorded and place of occurrence was inspected by him. He has described both place of occurrence (i) where incident of assault took place; and (ii) where the dead body of Lelha was lying. Trail of blood from the first place of occurrence up to the house of Motilal was noticed. He spent whole night in the village and prepared inquest report in the morning at 6:30 a.m. which has been marked Ext.-5. The dead body was sent for postmortem examination and after his return to the Police Station, formal FIR was drawn, which is Ext.-6. 13. The learned counsel has assailed the impugned Judgment on various grounds and submitted that the informant is not an eye witness and he had not seen the incident. He admits that Motilal Murmu came back from his house and caused injury to him by means of arrown where after, he ran to save his life. He took shelter in his house and again went to the place of occurrence after five minutes when the people assembled and saw the dead body of Lelha lying in the courtyard of the house of Motilal. If this version of the informant is true, he did not witness the assault caused to deceased. The other projected eye witnesses – P.W.-1, P.W.-2, P.W.-5 have also failed to give the correct account of incident and, therefore, no reliance could be placed on the testimony of such witnesses. P.Ws.-1 and 2 have said that they had seen appellant – Surin causing assault to Lelha but he did not say that Parmeshwar and Chunda had assaulted the deceased. P.W.-2 has further contradicted the statement of informant and the Investigating Officer, when he says that the Police arrived on the next morning at 6:00 a.m. It was further pointed out that P.Ws.-5, 6 and 7 are also not reliable witnesses and there is inconsistency in their statement on many vital points. Boka Marandi (P.W.-6) happens to be the brother of the deceased and he has tried to become an eye witness. Likewise, Receiver Hansda had also given statement pretending himself as to be an eye witness. Boka Marandi (P.W.-6) happens to be the brother of the deceased and he has tried to become an eye witness. Likewise, Receiver Hansda had also given statement pretending himself as to be an eye witness. The contradictions taken from these two witnesses were referred to the Investigating Officer to which he has admitted that they had given hearsay account of the incident. According to their statement given under Section 161 Cr.P.C., they had not seen the occurrence. The next point raised by learned counsel was that the Investigating Officer did not reach to the village on the date of the incident and no Fardbayan was recorded on that very date. In support of such contention, it was argued that the formal F.I.R. was drawn on 19.01.2001 but it was received in Court on 21.01.2001 and the delay was not explained. The inquest report was prepared on the next morning which also support that the Investigating Officer did not visit the village on the date of the incident and the version of P.W.-2 is correct that the Police had reached to the village on the next morning. According to the medical report, the deceased was having altogether seven antemortem injuries on his person which does not corroborate the ocular version of the so-called eye witness. The time of death as indicated in the postmortem report does not match with the time of death of the deceased, as disclosed by the eye witnesses. There is gap of about 6 – 8 hours. It was vehemently argued that the investigation was not done properly. He did not prepare sketch map of the place of occurrence. No blood stained soil was seized. He did not take steps to recover the weapon used for committing the offence and the postmortem was also done on 21.01.2001 after delay of two days. It had come in the evidence that the occurrence took place during the festival of Sohrai (Bandhana) during which the villagers were divided into two groups and there was clash between them but the Investigating Officer had not conducted investigation on this line. Last but not the least, it was contended that the incident took place at the spur of the moment. The occurrence was the result of grave and sudden provocation and the appellants did not have intention to commit murder. Last but not the least, it was contended that the incident took place at the spur of the moment. The occurrence was the result of grave and sudden provocation and the appellants did not have intention to commit murder. Since there was no intention or no premeditation of mind, Section 302 of the Indian Penal Code is not attracted and the case would cover under Sub exception (4) of Section 300 of the Indian Penal Code and the conviction and sentence is liable to be converted under Section 304 Part-II of the Indian Penal Code. 14. Learned counsel for the State has supported the impugned Judgment on the ground that the eye witnesses are rustic villagers of Santhalpargana and they do not know legal consequences of the tricky questions put to them. All the eye witnesses have innocently and honestly given those part of the incident which they had actually witnessed. It is true that some witnesses have given some part of the incident and some witnesses have given other part of the incident, which is quite natural. The witnesses who attracted towards the incident at the earlier point of time, had described the former part and the witnesses who reached to the place of occurrence later, have given later part of the incident. Neither evidence of the eye witnesses could be disbelieved nor the prosecution case is to be thrown away on the latches of the Investigating Officer. There is no merit in this appeal and the same is liable to be dismissed. 15. We have carefully gone through the evidence on record and the documents proved and marked exhibits. The genesis of the occurrence as disclosed by P.W.-8 remained intact. Indisputably, the appellants were having land dispute with the informant's family and the matter was subjudice in Court. On the occasion of Sohrai festival, the informant and his deceased brother met with the appellant Motilal Murmu and proposed to settle the dispute prevailing between them and suggested that no party will be benefitted to contest the matter in Court. Since the proposal given by the informant and his deceased brother was made on the line of compromise and, therefore, it could not be said that it was provoking and the occurrence was the result of grave and sudden provocation covering exception (4) of Section 300 of the Indian Penal Code. Since the proposal given by the informant and his deceased brother was made on the line of compromise and, therefore, it could not be said that it was provoking and the occurrence was the result of grave and sudden provocation covering exception (4) of Section 300 of the Indian Penal Code. The version of the informant in the Fardbayan as well as deposition in Court was very clear that he wanted to settle the dispute but Motilal Murmu became furious, went home and returned back armed with bows and arrows and also accompanied by appellants Chunda, Parmeshwar and Surin, who were armed with axe. The appellants who were armed with Tangi, hurled blows on the head of Lelha, in the result, he fell down. As per the evidence given by the eye witness, the first blow was given by Surin by means of Tangi on the head of deceased Lelha. After he fell down, Chunda and Parmeshwar inflicted blows by means of Tangi. When the informant raised alarm, Motilal shot arrow causing injury to the informant on his elbow and he ran from the place of occurrence to save his life. 16. Now coming to the evidence on record, we find that P.Ws.-1, 2, 5 and 8 are consistent on the point that Motilal armed with bows and arrow, the remaining appellants armed with Tangi, were present at the spot at the relevant point of time. P.W.-1 has said that Surin hurled Tangi blow on the head of Lelha after which he sustained injury and fell down. This contention of P.W.-1 find support from the version of P.Ws.-2, 5 and 8. P.Ws. -8 and 5 have said that Surin and Chunda hurled Tangi blow causing injury to the deceased. One of the witnesses Pandu Marandi (P.W.-5) has said that all the appellants caused assault to the deceased as a result he died. This version of witnesses is also consistent that after committing the murder, the appellants dragged the dead body to the courtyard of the house of Motilal. The Investigating Officer has also confirmed this fact when he deposed that he had seen trail of blood from the first place of occurrence to the second place of occurrence where the dead body was kept. The inquest was also prepared in the house of Motilal. 17. The Investigating Officer has also confirmed this fact when he deposed that he had seen trail of blood from the first place of occurrence to the second place of occurrence where the dead body was kept. The inquest was also prepared in the house of Motilal. 17. Much stress was given on the point that P.W.-8 is not an eye witness and after receiving injury by means of arrow, he went inside the house and took shelter and returned back after five minutes. When he returned to the place, he found Lelha lying dead in the house of Motilal. The informant is a witness who had described the entire episode which commenced from the conversation which he had with Motilal in the alley and till he had seen the dead body of his brother Lelha lying in the courtyard of the house of Motilal. In between, if there is some discontinuity in the sequence given by the informant, the total account of occurrence which is available on record cannot be thrown away and, therefore, we do not find any reason to disbelieve the eye witness. So far medical and ocular evidence are concerned, the tentative time of death was given by the Doctor and variance of 6–8 hours is not very material. The calculation of time of death may vary from the temperature of the atmosphere in which the dead body was kept and, therefore, we do not find the argument much forceful to disbelieve the actual account of incident given by the eye witnesses. The most important part of the prosecution case is that the informant, who was present from the very beginning of the incident, had sustained injury caused to him by appellant–Motilal by means of arrow and the injuries so caused found support from the evidence of P.W.-9 and the injury report. We do not feel inclined to disbelieve injured witnesses who is also victim of the incident unless it was proved that the injury was self inflicted. 18. The investigating officer and the other witnesses except P.W.-2 had stated that the Police arrived at the village on the date of incident itself and recorded the Fardbayan of the informant at 21:00 hrs. 18. The investigating officer and the other witnesses except P.W.-2 had stated that the Police arrived at the village on the date of incident itself and recorded the Fardbayan of the informant at 21:00 hrs. We do not consider that preparation of inquest report on the following morning during day light was illegal in view of the fact that the occurrence took place in a village and the police visited the place during night. It is also to be noted that the occurrence took place at about 4:00 p.m. on 19.01.2001. The Fardbayan was recorded after the arrival of the Police at 9:00 p.m., the Police made camp in the village during night and the inquest was prepared at 6:30 a.m. in the following morning. The informant–injured was examined by the Doctor – P.W.-9 on the very same date of the incident at 10:50 p.m. and, therefore, we do not find room for any manipulation in the F.I.R. and the prosecution case could not be disbelieved only because the F.I.R. reached to the Court after one day i.e. on 20.01.2001. 19. In view of the evidence referred to above it cannot be said that the appellants had no intention to kill deceased. On a proposal to compromise, Motilal became furious, went home and returned back with bows and arrow, also accompanied by other appellants who were armed with Tangi (Axe) and thereafter, hit the deceased on his head repeatedly by Tangi, a vital part of human body. The appellant Motilal caused injury to informant by shooting arrow. After death of deceased at the spot the dead body was dragged by the appellants to their house. It may be true that initially there was no premeditation or intention but the intention can develop on the spot and the evidence indicate that there was some amount of premeditation on the part of the appellants when they came back from home to place of occurrence, armed with bows and arrow, tangi and in furtherance of that intention, struck the deceased with that weapon repeatedly on vital part of his body, also caused injury to the informant by shooting arrow. In the backdrop of such consistent evidence, we do not agree to accept the view that the offence committed will come under the exception and the conviction can be altered from 302 I.P.C. to 304 Part-II I.P.C. It was held by their Lordships in the case of State of Rajasthan Vs. Islam and others reported in (2011) 6 SCC 343 as under:- “B. Penal Code, 1860–S. 300 Exception 4–When attracted–Cumulative conditions for–Reiterated, for bringing a case under Exception 4 to S. 300, evidence must show that accused acted without any premeditation and in the heat of passion and without having taken undue advantage, and nor having acted in a cruel or unusual manner–Every one of these circumstances is required to be proved to attract S. 300 Exception 4 and it is not sufficient to prove only some of them–In instant case, none of aforementioned ingredients were proved from evidence to bring the case under S. 300 Exception 4–High Court's finding to the contrary was totally against evidence on record.” Learned counsel for the appellants has relied upon the Judgments in the case of Gokul Parashram Patil Vs. State of Maharashtra reported in (1981) 3 SCC 331 ; in the case of Badsah Sah & Ors. Vs. State of Bihar reported in [2012 (1) East Cr. C. 169 (Pat.)] and in the case of Jagtar Singh Vs. State of Punjab reported in AIR 1983 SC 463 in support of the view that the conviction can be altered under Section 304 Part-II of the I.P.C. but the facts appearing in the cases do not tally with the facts and circumstances of the case in hand and, therefore, the Judgments cited will of no help to the appellants. 20. In view of the aforementioned fact and circumstances, we do not find any reason to interfere with the findings given by District and Sessions Judge in its Judgment of conviction and order of sentence dated 06.03.2002, passed in Sessions Trial No. 35 of 2001. Accordingly, the same is hereby affirmed and this appeal stands dismissed. The appellant Nos. 1 (Motilal Murmu) and appellant no. 2 (Parmeshwar Murmu) are on bail, their bail bonds are hereby cancelled and are directed to surrender within a month from today failing which, the convicting/successor court shall take all coercive steps for their arrest.