V.N. SINHA, J.:–Heard learned counsel for the appellants and the State. 2. These two appeals arise out of judgment of conviction and order of sentence dated 20.12.2004 passed by Additional District & Sessions Judge (F.T.C.)-I, Jamui in Sessions Trial No. 277/1984, whereunder the learned trial judge has convicted the five appellants of the two Cr. Appeals for the offence under Section 302/149 of the Penal Code and has further convicted Appellant Jagdish Yadav, Shibban Yadav and Banarshi Yadav for the offence under Section 147 of the Penal Code. Appellant Hansu Yadav and Meghu Yadav have been convicted for the offence under Section 148 of the Penal Code. The sentence imposed against the five appellants for their conviction under Section 302/149 of the Penal Code is imprisonment for life. For offence under Section 147 of the Penal Code, the three appellants Jagdish Yadav, Shibban Yadav and Banarshi Yadav have been directed to undergo sentence of six months. Appellant Hansu Yadav, Meghu Yadav have been further sentenced to undergo imprisonment of one year for the offence under Section 148 of the Penal code. The sentences have been directed to run concurrently. 3. As these two appeals arise out of the common judgment and order of sentence, both have been heard together and are being disposed of by this common judgment. 4. Prosecution case as set out in the Fardbeyan of informant Hiraman Yadav (P.W.-5) as also in the evidence led by the prosecution party is that niece of the informant (P.W. 5) Manju Kumari (P.W.-3) had taken the she-buffalo for grazing on 30.7.1982 at about 9 A.M. P.W.-4 Arjun Yadav was also there grazing his she-buffalo. The two buffaloes were grazing in a field which was just behind the houses of the members of the prosecution party, accused persons and was fallow. Hansu Yadav chided P.W.-3 Manju Kumari as to why she has brought her she-buffalo to the land in question for grazing as according to appellants the field belonged to them and she-buffalo ought not to have been brought there for grazing. Hansu Yadav chided P.W.-3 Manju Kumari as to why she has brought her she-buffalo to the land in question for grazing as according to appellants the field belonged to them and she-buffalo ought not to have been brought there for grazing. Having chided Manju Kumari, Hansu Yadav also slapped her and drove away the she-buffalo from the fallow field after slapping her, which prompted Manju Kumari to come to her father Daulat Yadav the deceased and narrate the occurrence, whereafter Daulat Yadav along with his brother Hiraman Yadav and Manju Kumari came to the field where the she-buffaloes were earlier grazing and lodged protest asking Hansu Yadav as to why did he object grazing of the she-buffalo in the field which was fallow. The protest led to an altercation, exchange of abuses between the deceased Daulat Yadav, his brother Hiraman Yadav on the one side and the appellants on the other. Meanwhile, Hansu Yadav, Meghu Yadav and other appellants brought sword, saif and lathi from their houses and assaulted Daulat Yadav on his head and other parts of his body. The occurrence was seen by Arjun Yadav (P.W.-4) who was also grazing his she-buffalo in the same field. On alarm being raised Lila Yadav (P.W.-2), Raghupati Yadav (P.W.-10) also arrived at the place of occurrence and saw Daulat Yadav fallen on the ground. Sometime after the occurrence, Hiraman Yadav brought Daulat Yadav to Malaipur P.S. The fardbeyan of Hiraman Yadav was recorded at 12.15 P.M. on 30.07.1982 itself. After recording of the fardbeyan Daulat Yadav was shifted to hospital where he succumbed to the injuries on the same day. 5. In support of the aforesaid prosecution case, prosecution has examined 10 witnesses. P.W.-1 Shankar Yadav is the son of the deceased. P.W.-2 Lila Yadav is the brother-in-law of the deceased and is named as an eye-witness in the fardbeyan. P.W.-3 Manju Kumari is the daughter of the deceased, is also named in the fardbeyan as she called the deceased to the place of occurrence after being chided and slapped by appellant Hansu Yadav. P.W.-4 Arjun Yadav is the cousin of deceased, is an eye-witness and is also named in the fardbeyan as he was also grazing his she-buffalo in the same field. P.W.-5 Hiraman Yadav is the brother of the deceased and informant of the case. P.W.-4 Arjun Yadav is the cousin of deceased, is an eye-witness and is also named in the fardbeyan as he was also grazing his she-buffalo in the same field. P.W.-5 Hiraman Yadav is the brother of the deceased and informant of the case. P.W.-6 Udai Kant Pathak, Officer in charge of Malaipur P.S. who submitted charge-sheet and proved the documents. P.W.-7 Saudagar Mahto is the witness of Inquest. P.W.-8 Dr. Dharam Raj Roy is the Medical Officer who conducted Post Mortem examination on the body of the deceased. P.W.-9 Ram Awtar Pandey is the Sub-Inspector who investigated the case. P.W.-10 Raghupati Yadav is an eye-witness named in the fardbeyan itself but has been declared hostile to the prosecution case. 6. Besides the ocular evidence, prosecution has also relied on the following documentary evidence i.e. Exhibit-1 Fardbeyan, Exhibit-2 Formal F.I.R., Exhibit-3- Inquest Report of the deceased, Exhibit-5- requisition for examination of injury of informant, Exhibit-8 post-mortem report of the deceased, Exhibit-9 Injury Report of informant. 7. P.W.-1 Shankar Yadav, son of the deceased is not named as a witness in the fardbeyan. From perusal of his evidence it will, however, appear that he has not seen the manner of assault but has seen the deceased fallen on the ground and appellants armed with weapon. He has also stated about the fact that the appellants purchased the same land which was earlier purchased by his father from Yogendra Singh. He further stated in his evidence that at the time of occurrence he was at a distance of 200-300 yards from the place of occurrence. 8. P.W.-2 Lila Yadav is also named in the fardbeyan as a witness and has confirmed the manner of assault as stated in the fardbeyan and has also deposed in Court that Hansu Yadav and Meghu Yadav assaulted the deceased by means of sword and saif on his head. He also deposed that Jagdish Yadav and the two others namely, Shibban Yadav and Banarshi Yadav assaulted the deceased with lathi. 9. P.W.-3 Manju Kumari, as stated earlier, is also an eye-witness and daughter of the deceased who called him to protest the highhandedness of Hansu Yadav. She has confirmed that her father was assaulted by Hansu Yadav and Meghu Yadav with sword and saif on his head and other appellants caused lathi injury to him. 9. P.W.-3 Manju Kumari, as stated earlier, is also an eye-witness and daughter of the deceased who called him to protest the highhandedness of Hansu Yadav. She has confirmed that her father was assaulted by Hansu Yadav and Meghu Yadav with sword and saif on his head and other appellants caused lathi injury to him. She has further confirmed the presence of the other eye-witnesses named in the fardbeyan at the time of occurrence. 10. P.W.-4 Arjun Yadav is the boy who at the place of occurrence was grazing his she-buffalo along with P.W. 3 Manju Kumari and is named in the fardbeyan as a witness. He has also confirmed the assault on the deceased by Hansu Yadav and Meghu Yadav by means of sword and saif respectively. The witness has attributed other appellants with assault on the deceased by lathi. P.W.-4, however, in paragraph 11 of his evidence has stated that P.W. 1 and 10 arrived at the place of assault after the deceased fell down. 11. P.W.-5 Hiraman Yadav, brother of the deceased, is the informant. In paragraph-1 informant has stated that the accused persons are his next door neighbours. He has further stated that when deceased lodged protest with Hansu Yadav, Hansu Yadav not only abused the deceased but also assaulted him with sword. He has further confirmed that Meghu Yadav assaulted the deceased on head with saif and the other appellants assaulted the deceased by means of lathi. 12. Another eye-witness of the occurrence P.W.-10 though brother-in-law of the deceased and named in the fardbeyan as an eye-witness but has not supported the occurrence and was cross-examined by the Public Prosecutor. 13. P.W.-8, Dr. Dharam Raj Roy having conducted the post-mortem on the dead body of Daulat Yadav submitted Post Mortem Report dated 31.07.1982, Exhibit-8 which supports not only the head injury caused on the person of the deceased by means of sword, saif but also confirmed lathi injuries all over his body. 14. Learned counsel for the appellants with reference to Paragraph-7 of the evidence of P.W.-8 Dr. Dharam Raj Roy submitted that Autopsy Surgeon having found rigor mortis present on all four limbs (upper and lower limbs) of the deceased the time of death asserted by the prosecution witnesses itself and found by the trial judge 2 P.M. does not appear to be correct. Dharam Raj Roy submitted that Autopsy Surgeon having found rigor mortis present on all four limbs (upper and lower limbs) of the deceased the time of death asserted by the prosecution witnesses itself and found by the trial judge 2 P.M. does not appear to be correct. Rigor mortis having extended to the upper limb, the opinion of the doctor does not corroborate the time of death as found by the trial judge. 15. Study of Medical Jurisprudence indicates that rigor mortis starts setting in after 2-3 hours of the death and extend to the upper limb within 12 hours of the death. Death having taken place at 2 P.M., rigor mortis could not have extended to the upper limb of the deceased at the time of post-mortem examination which was performed at 5 P.M. on 30.7.1982. The evidence of doctor Dharam Raj Roy in Paragraph 7 is merely an opinion which if not corroborated by the ocular evidence the ocular evidence which is otherwise supportive of the injuries found on the person of the deceased has to prevail over the opinion of the Autopsy Surgeon in Paragraph-7. In the light of the ocular evidence of the eye-witnesses read with the injuries found on the person of the deceased, we hold that Daulat Yadav suffered assault by the appellants by means of sword, saif and lathi at about 9 A.M. on 30.07.1982. 16. Learned counsel for the appellants also submitted with reference to the evidence of Ram Awtar Pandey the Investigating Officer P.W.-9 paragraph 11 that the witness was cross-examined in part on 30.11.1993 whereafter on account of paucity of time, his further cross-examination was deferred to 17.12.1993 on which date the court was not available as the judge was availing Current Duty and the further cross-examination of the Investigating Officer was deferred to 3.2.1994 on which date the Investigating Officer did not appear and the proceeding was adjourned issuing fresh summons to the Investigating Officer to appear on 16.8.1994. Further cross-examination of the Investigating Officer could not be conducted on 16.8.1994 as on that day information was received in the court that accused Mishri Yadav has died and the matter remained under enquiry about the death of Mishri Yadav. Further cross-examination of the Investigating Officer could not be conducted on 16.8.1994 as on that day information was received in the court that accused Mishri Yadav has died and the matter remained under enquiry about the death of Mishri Yadav. It is submitted that after 16.8.1994 the Investigating Officer never became available for his cross-examination and thereby the defence has been prejudiced and on account of failure of the prosecution to make available the Investigating Officer for cross-examination, the entire prosecution story should be thrown into a dust-bin. We regret not to accept such submission. It appears from the prosecution evidence of other eye-witnesses that the defence has not suggested to any of the eye-witnesses about any part of their evidence that such evidence was not recorded by them before the Investigating Officer. In such view of the matter, non-availability of the Investigating Officer for further cross-examination has not at all prejudiced the defence and the submission is not acceptable to us. 17. Learned counsel for the appellants then submitted that prior to the assault on the person of the deceased Daulat Yadav there was hot altercation and exchange of abuses between the deceased Daulat Yadav, his brother Hiraman Yadav, informant on the one side and the appellants on the other concerning a trivial issue of grazing by the buffalo in a fallow field which prompted the appellants to assault the deceased by means of sword, saif and lathi. It is submitted that the assault was preceded by grave provocation on account of altercation and abuses. In this background, it is submitted that though deceased Daulat Yadav died on account of assault by the appellants but the assault was preceded by altercation and abuses, the case is covered by Exception-4 of Section 300 of the Penal Code and the conviction of the five appellants is required to be converted from Section 302/149 to Section 304 Part-1/149 I.P.C. In support of the aforesaid submission learned counsel for the appellants relied upon the judgment of the Supreme Court in the case of Lachman Singh Vs. State of Haryana, 2006 Cri.L.J 4041 SC paragraph 11, Harbans Kaur and another Vs. State of Haryana 2005 Cri.L.J. 2199 SC, Sukumar Roy vs. State of West Bengal, 2006 Cri.L.J. 4776 paragraph 5, Chamru Budhwa Vs. State of Madhya Pradesh, AIR 1954 Supreme Court 652. State of Haryana, 2006 Cri.L.J 4041 SC paragraph 11, Harbans Kaur and another Vs. State of Haryana 2005 Cri.L.J. 2199 SC, Sukumar Roy vs. State of West Bengal, 2006 Cri.L.J. 4776 paragraph 5, Chamru Budhwa Vs. State of Madhya Pradesh, AIR 1954 Supreme Court 652. In the case of Lachman Singh (supra) there was hot altercation, exchange of abuses between accused and others including deceased over issue of flow of water on roof of kitchen. Accused having become infuriated suddenly asked his son to bring revolver from inside his house, who brought the revolver and gave it to his father. Father having become infuriated shot at the deceased causing his death. Trial court convicted the father for the offence under Section 302 of the Penal Code and sentenced him to undergo imprisonment for life as also to pay fine with default stipulation. Aforesaid conviction and sentence was affirmed by the High Court in appeal. Supreme Court having considered the exceptions of Section 300 I.P.C. including Exception 4 observed as follows:— “11. 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 the 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 ‘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 if 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 the 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. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. 18. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. 18. In view of the submission, ratio laid down by the Supreme Court in the case of Lachman Singh (supra), we see substance in the request of the counsel for the appellant and, accordingly, convert the conviction of the five appellants from Section 302/149 of the Penal Code into Section 304 Part-1/149 of the Penal Code. Having converted the conviction into lesser offence, we direct that the appellants Hansu Yadav and Meghu Yadav who assaulted the deceased Daulat Yadav by means of sword and saif respectively should undergo a sentence of R.I. of 10 years. So far appellant Jagdish Yadav is concerned, he being 81 years of age as per his age assessed by trial court under Section 313 Cr.P.C. statement having assaulted the deceased by means of lathi and there is no evidence of repetition of assault by him, is directed to undergo sentence of four years R.I. So far appellant Shibban Yadav and Banarshi Yadav are concerned, they have been declared juvenile in conflict with law on the date of occurrence i.e. 30.7.1982 by the Principal Magistrate, Juvenile Justice Board, Jamui under order dated 20.12.2012, which was forwarded to this Court under Letter No. 110 dated 20.12.2012, Flag-B are not required to undergo any further sentence in the light of this order. They are discharged from the liability of their respective bail bonds. Appellant Hansu Yadav being already in custody, should be released after serving out the sentence in the light of this order. So far appellant Meghu Yadav and Jagdish Yadav are concerned, they have been released on bail by this Court, as such, in compliance of this order their bail bond is cancelled with direction to surrender in the court below forthwith for serving their remaining part of sentence. 19. With the aforesaid modification in sentence, both the appeals are dismissed.