JUDGMENT : Per Virender Singh, C.J. Appellants Murli Marandi, Som Tudu and Sukal Tudu (hereinafter to be referred to as ‘accused’), all residents of Village Chota Sarwapani, P.S. Kathikund, District – Dumka, after suffering conviction vide impugned judgment of learned Additional Sessions Judge 2nd, Dumka dated 30th April, 2003 for the offence under Section 302/34 IPC, are praying for acquittal through the medium of the instant appeal. Since all the three accused are languishing in jail for last more than 13 years, priority was given to this appeal by us. 2. Ms. Amrita Banerjee has been appointed as Amicus Curiae to defend the case of the accused. 3. There are two deceased in this case Nandi Murmu and Mangal Murmu. The occurrence is of 01.01.2002 at about 4.00 p.m. Police was informed of the occurrence on same day at 9.00 p.m. by PW Gumni Tudu (PW-2) alleging therein that at 4.00 p.m. she and her daughter-in-law were doing work in their house and her son Mangal Murmu and her husband Nandi Murmu were near the door of the house when they heard a noise from the Aangan (courtyard) of accused Murli Marandi and thereafter she (Gumni Tudu) went there and saw that a fight was going on between accused Murli Marandi and Mangal Murmu. At that time, remaining two accused namely Som Tudu and Sukal Tudu were also there. The informant further alleged that accused Murli Marandi grounded her son Mangal Murmu and started assaulting on his chest with Fasli (sharp edge weapon) and that Som Tudu and Sukal Tudu assaulted Nandi Murmu with their respective lathies resultantly they died. She further alleged that she was also assaulted by accused Som Tudu with lathi whereupon she got head injury and then she ran away from the scene of occurrence. The cause projected for this occurrence is pendency of a case between the informant’s family and accused Som Tudu and Sukal Tudu. On account of old enmity, the accused killed her husband and son. 4. The present case was investigated by Manoj Kumar Singh (PW-11) who got the autopsy done on the dead body of both the deceased by Dr. Ramesh Prasad Verma and Dr. Deenanath Pandey (PW-1 and PW-4). Informant Gumni Tudu was also examined for the injury on her person by PW Dr. D.K.Mishra (PW-5). 4. The present case was investigated by Manoj Kumar Singh (PW-11) who got the autopsy done on the dead body of both the deceased by Dr. Ramesh Prasad Verma and Dr. Deenanath Pandey (PW-1 and PW-4). Informant Gumni Tudu was also examined for the injury on her person by PW Dr. D.K.Mishra (PW-5). Statement of PW Fulmani Hansda (PW-3) and the wife of the deceased Mangal Murmu was also recorded as she claimed herself to be an eye witness to the occurrence. On completion of investigation, all the three accused were put to trial, consequently they were charged for the offence punishable under Section 302/34 IPC for which now they stand convicted and sentenced to undergo imprisonment for life. 5. In support of its case, prosecution has examined as many as 11 witnesses but the star witnesses to the occurrence are PW Gumni Tudu (first informant) and Fulmani Hansda, wife of deceased Mangal Murmu. Both have unfolded the prosecution case as one finds in the first information report on the basis of which the formal F.I.R. came to be lodged. 6. Dr. Ramesh Prasad Verma (PW-1), who conducted the postmortem examination on the dead body of Mangal Murmu found the following injuries on his person :- (i) Incised and gaping wound right side of chest 5” x 2” x viscera exposed with underline ribs cut. (ii) Incised wound with gaping left side of chest 6” x 1½” x viscera exposed with underline 5 ribs cut. On examination the heart was cut into two pieces horizontally. Abdominal viscera was exposed and liver was ruptured. The weapon used for causing these injuries is opined as heavy sharp cutting weapon. It was further opined by the doctor that such injuries may be caused by ‘Dabia’ used for cutting palm and palm product. 7. Injury noticed on the person of deceased Nandi Murmu are by blunt weapon. 8. We do not feel the necessity of entering into the detailed discussion vis-à-vis the other witnesses as two witnesses namely Dey Hansda (PW-6) and Bale Murmu (PW-8) have been declared hostile whereas the other two witnesses Mangal Hansda (PW-9) and Mangal Murmu (PW-10) are of hearsay evidence. Manoj Kumar Singh (PW-11) is the Investigating Officer of the present case who has proved the fardbeyan (Ext.5) and the formal F.I.R. (Ext.6). He also proved the inquest reports of both the deceased and the seizure list. Manoj Kumar Singh (PW-11) is the Investigating Officer of the present case who has proved the fardbeyan (Ext.5) and the formal F.I.R. (Ext.6). He also proved the inquest reports of both the deceased and the seizure list. He also stated that the accused persons had confessed their guilt before him and other villagers and that those confessional statements were marked as Ext. 9, 9/1 and 9/2. This is sum and substance of the prosecution case. 9. When the accused were examined under Section 313 Cr.P.C. they denied the occurrence. However, during cross examination of the I.O. it reveals that arising out of the same occurrence a case under Section 307 IPC was registered against Mangal Murmu but the accused did not produce any medical evidence in this regard before the trial court. 10. Heard Ms. Amrita Banerjee, learned Amicus Curiae for all the three accused and Mr. Shekhar Sinha, learned Additional Public Prosecutor representing the State. 11. Learned Amicus Curiae argued that may be in their statement recorded under Section 313 Cr.P.C. the accused have not come up with a specific defence that it was Mangal Murmu (deceased) who had arrived under the date-tree situated near the house of the accused namely Murli Marandi and shot an arrow from his bow at Murli Marandi who had at that time climbed on the date-tree, with an intention to cause his death, for which a case under Section 307 IPC was registered against Mangal Murmu but the said fact has been admitted by the Investigating Officer (PW-11) on oath in Para-4 of his cross-examination. Learned counsel contended that from this fact it can be comfortably said that deceased Mangal Murmu was actually the aggressor and attempted to cause murder of Murli Marandi. Learned Amicus Curiae submitted that PW Gumni Tudu who has set law in motion, has stated in her fardbeyan (F.I.R.) that when she reached at the house of accused Murli Marandi, she saw scuffling going on between her son Mangal Murmu and accused Murli Marandi. Learned Amicus Curiae submitted that PW Gumni Tudu who has set law in motion, has stated in her fardbeyan (F.I.R.) that when she reached at the house of accused Murli Marandi, she saw scuffling going on between her son Mangal Murmu and accused Murli Marandi. Learned Amicus Curiae strenuously contended that the aforesaid evidence in the shape of admission by prosecution clearly reflects that deceased Mangal Murmu had used his arrow at Murli Marandi who, at that time, was at the height of the tree upon which he had fallen on the ground, thus provoked Murli Marandi as well as his two co-accused (Som Tudu and Sukal Tudu) and due to the said grave provocation the fight had occurred between both the sides resulting into death of Mangal Murmu and his father Nandi Murmu. Learned counsel submitted that the case of prosecution thus falls within the purview of either Exception 1 or Exception 4 of Section 300 IPC punishable under Section 304 IPC. Learned counsel submitted that all the accused thus deserve the said benefit by diluting their conviction from Section 302 IPC to Section 304 (1) IPC, which in turn, would benefit them for reduction of their substantive sentence from life imprisonment to the period already undergone by them which comes to more than 13 years by now. 12. Arguments advanced by learned Amicus Curiae are vehemently refuted by learned State counsel contending that in this case two persons have lost their lives at the hands of three accused, one out of them was armed with a deadly weapon (Fasli). Learned counsel submitted that the accused cannot get any benefit of the confession made by them before the police during investigation, the same being inadmissible in evidence. 13. We certainly have no doubt in our mind that there is evidence available on record to show that deceased Mangal Murmu had attempted to assault accused Murli Marandi while he was at the top of date-tree by shooting an arrow at him which hit him in his leg for which a case was lodged under Section 307 IPC against Mangal Murmu. This fact has been admitted by none else but the prosecution witness i.e. Investigating Officer himself. The mother of the deceased has also admitted that she had seen a scuffle between her son and accused Murli Marandi. 14. This fact has been admitted by none else but the prosecution witness i.e. Investigating Officer himself. The mother of the deceased has also admitted that she had seen a scuffle between her son and accused Murli Marandi. 14. Let us now have a closer look on the issue, whether the facts and circumstances of the case come within the purview of Exception 1 or Exception 4 of Section 300 IPC? When culpable homicide is not murder : Exception 1 of Section 300 IPC – 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 above exception is subject to the following provisos : First - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly – That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations – (a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z’s child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation. 15. In the case on hand two murders have been committed by accused. Out of both deceased, one is the father of so called provoker Mangal Murmu namely Nandi Murmu, who admittedly had not given any provocation and his death was not caused by accident or misfortune in doing an act caused by the provocation as such the case of the defence is hit by the mischief of Exception 1. Accordingly, we are of the view that the facts do not come within the purview of Exception 1 of Section 300 IPC. 16. Accordingly, we are of the view that the facts do not come within the purview of Exception 1 of Section 300 IPC. 16. Now, we have to see, whether the facts of case come within the purview of Exception 4 of Section 300 IPC which runs inter alia – 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 offenders having taken undue advantage or acted in a cruel or unusual manner. Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault. 17. In case Parkash Chand v. State of H.P. (2004) 11 SCC 381 it has been settled by Hon’ble Supreme Court that the help of Exception 4 can be invoked if the death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. All these ingredients must be present for invoking Exception 4. 18. In our considered view, the accused cannot earn the benefit under Exception 4 of Section 300 IPC for the following two reasons :- (i) Postmortem Report reveals that the murder of Mangal Murmu was caused in very cruel manner. (ii) The fight occurred between Mangal Murmu and accused persons but the father of Mangal Murmu, who rushed there to save his son has also been murdered. 19. Thus, we are of the considered view that even after admission of the case of the accused by prosecution as discussed hereinabove, the accused-appellants cannot get benefit of Exception 1 or Exception 4 of Section 300 IPC. 20. After discussing the present case on its individual facts within the parameters of aforesaid legal issue, we feel no difficulty in upholding the conviction of all the accused for the charge of Section 302/34 IPC. Resultantly, the appeal on hand merits dismissal in toto. Ordered accordingly. 21. Registry is directed to inform the accused of the outcome of the instant appeal through the Jail Superintendent where the accused are presently lodged. 22. Trial Court record be remitted to the court concerned.