JUDGMENT : D.N.Upadhyay, J. This Cr. Appeal has been directed against the judgment of conviction and order of sentence dated 10.04.2007 & 11.04.2007 respectively passed by the Addl. Sessions Judge, Palamau at Daltonganj in connection with S.T.No.265/2004, corresponding to G.R.No.1043/2003, arising out of Chainpur P.S. Case No. 89/2003 whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life and to pay fine of Rs.5,000/-and in default of making payment of fine further imprisonment for three months. 2. The facts emerging from fardbayan of Brij Mohan Singh (deceased) recorded on 03.08.2003 at 8:45 hours at Chainpur Police Station is that appellant who happens to be own brother of deceased asked to hand over country tile of his share. The informant replied-first you pay money only then tiles of your share would be handed over. In the meantime, wife of the appellant instigated him where after he went home and brought out a 'Farsa' and caused injury to informant on his neck. The informant after sustaining injury fell down where after second blow was inflicted on his abdomen. The occurrence was witnessed by father of the appellant as well as by Raj Kumari Devi (P.W.4) wife of the deceased. The informant was admitted to hospital for his treatment and after three days he was released but again complication arose and he was removed to hospital but died on the way. On the basis of fardbayan of Brij Mohan Singh (deceased), Chainpur P.S. Case No. 89/2003 dated 03.08.2003, under Sections 324/307/34 of the Indian Penal Code was registered. After death of informant Section 302 I.P.C. was added vide order dated 11.08.2003. The investigation was carried out and charge-sheet against the appellant was submitted and accordingly cognizance was taken and the case of the appellant was committed to the court of sessions and registered as S.T.No.265/2004. Charge under Section 302 of the Indian Penal Code against the sole appellant was framed to which he pleaded not guilty and claimed to be tried. To substantiate the charge, the prosecution has examined altogether 7 witnesses and proved the documents like postmortem report, inquest report, fardbayan etc. The learned Trial Judge placing reliance on the evidence and documents available held the appellant guilty and inflicted sentence as indicated above. 3. Counsel appearing for the appellant has extended two fold argument. To substantiate the charge, the prosecution has examined altogether 7 witnesses and proved the documents like postmortem report, inquest report, fardbayan etc. The learned Trial Judge placing reliance on the evidence and documents available held the appellant guilty and inflicted sentence as indicated above. 3. Counsel appearing for the appellant has extended two fold argument. In the first part of his argument he has submitted that conviction and sentence has been recorded on the basis of evidence of P.W.3-Dashrath Singh and P.W.4-Raj Kumari Devi, who are father and wife respectively of the deceased. P.W.3 has not supported the prosecution case wholeheartedly. He did not say who assaulted whom and who sustained injuries rather he says that his younger son Amrika Singh informed that Brij Mohan Singh had fallen on the ground. P.W.3 has admitted his poor eyesight from which he has been suffering with. Raj Kumari Devi (P.W.4) happens to be wife of the deceased. Though she has supported the prosecution case but contradictions in her statement are appearing. It is not a case of instantaneous death rather the informant (deceased) was admitted to hospital for his treatment and he was lodged as indoor patient for about 3 days. He returned home after he was released from hospital. Within two days complication arose and he succumbed to his injuries. This is also to be taken note of that the deceased had described the occurrence in detail in his fardbayan and that means he was fully conscious even after receiving those injuries. Jitendra Kumar Yadav-P.W.2 is the hearsay witness whereas P.W.5-Shayam Sunder Singh has turned hostile. I.O. has not been examined and the fardbayan has been proved by an Advocate clerk Lal Bahadur Sahu (P.W.7). In the second limb of argument, it is submitted that appellant is none else but own brother of the deceased. He had gone to ask for his share in the country tile and in course of that some altercation took place between two brothers in presence of their respective wife. There was neither intention nor premeditation of mind to commit murder because the appellant was bare hand while he had gone to ask for share in the country tile. It was wife of the appellant who instigated and under that passion the appellant went home, brought out 'Farsa' and inflicted injuries on the person of his brother Brij Mohan Singh. There was neither intention nor premeditation of mind to commit murder because the appellant was bare hand while he had gone to ask for share in the country tile. It was wife of the appellant who instigated and under that passion the appellant went home, brought out 'Farsa' and inflicted injuries on the person of his brother Brij Mohan Singh. The evidence on record admittedly suggest that the appellant was not having intention to commit murder and the occurrence took place at the spur of the moment and it was culpable homiside not amounting to murder as per exception 4 of Section 300 of the I.P.C. The appellant has already remained in custody for more than 12 years. If the evidence available on record is admitted to be true, he shall be held guilty for the offence punishable under Section 304 (part I) of the Indian Penal Code. 4. Learned A.P.P. has opposed the argument and submitted, this case would not come within the purview of any of the exception of Section 300 of the Indian Penal Code. The occurrence did not take place at the spur of the moment, during sudden fight or quarrel. The appellant brought out 'Farsa' from his house and Farsa is a weapon used for commission of crime. It is not a case of single blow rather the appellant had inflicted first blow on the neck of the deceased, when he fell down, second blow was inflicted on the abdomen. The occurrence was witnessed by P.W.4-Raj Kumari Devi and P.W.3-Dashrath Singh. Dashrath Singh being the father has tried to save his son from punishment and to some extent he has changed his version in Court but then Raj Kumari Devi-P.W.4 has supported the prosecution case and she stood to the test of her cross-examination. Besides the above, F.I.R. has been considered as dying declaration and, therefore, the Trial Court has rightly held the appellant guilty and the impugned judgment needs no interference. 5. We have examined the case record, perused the evidence and documents available. The learned Trial Judge has considered the evidence of eye-witnesses and the fardbayan which has been considered as dying declaration. We find that Doctor Alakh Kumar Mandal (P.W.6) had examined the informant and treated him in the hospital. He has proved injury report as ext. 2. Dr. 5. We have examined the case record, perused the evidence and documents available. The learned Trial Judge has considered the evidence of eye-witnesses and the fardbayan which has been considered as dying declaration. We find that Doctor Alakh Kumar Mandal (P.W.6) had examined the informant and treated him in the hospital. He has proved injury report as ext. 2. Dr. K.M.Sah (P.W.1) had conducted postmortem examination on the dead body of Brij Mohan Singh (deceased). Death of Brij Mohan Singh occurred due to the injuries inflicted to him by means of 'Farsa' by the appellant, therefore, fardbayan given by him has been considered as dying declaration. Besides dying declaration P.W.4-Raj Kumari Devi has fully supported the prosecution case. We feel no hesitation to observe that prosecution has successfully proved that the appellant had inflicted injury to the deceased by means of 'Farsa' ( a heavy sharp cutting weapon). The informant after sustaining injury was removed to hospital for his treatment and the injury report has been proved as Ext. 2. The deceased informant died due to the injury sustained find support from the postmortem report Ext.1 proved by P.W. 1. 6. Now question arose whether this case would come within the purview of any exception of Section 300 of the I.P.C. or not ? To answer this question we have examined relevant provision of law and evidence on record. At the cost of repetition, substance of fardbayan and evidence of P.W.4 are required to be brought on record. The facts available on record is that the appellant had been to the house of deceased and asked for his share in the country tile. In course of that, exchange of hot words had taken place between two brothers. In the meantime, wife of the appellant spoke that he (informant) would not give the share easily, thereafter the appellant went home, brought out 'Farsa' and inflicted 'Farsa' blow on the neck of the deceased. After sustaining injury the deceased fell down and second blow was inflicted by means of 'Farsa' on his abdomen. At this juncture, we would like to observe that intention to commit murder can be gathered from the weapon used, part of the body selected to cause injury, number of blows inflicted etc. In the case at hand as soon as the appellant went back home and brought out 'Farsa' his intention to cause assault came in picture. At this juncture, we would like to observe that intention to commit murder can be gathered from the weapon used, part of the body selected to cause injury, number of blows inflicted etc. In the case at hand as soon as the appellant went back home and brought out 'Farsa' his intention to cause assault came in picture. As soon as the appellant inflicted blow on the neck of the deceased and after sustaining injury when the deceased fell down and second blow was inflicted on his abdomen, the intention to commit murder further comes in picture. Needless to mention that 'Farsa' is not an instrument used for any domestic purpose rather it is a weapon for committing the offence and it is heavy sharp cutting weapon. Injuries inflicted on the neck touched skull bone and the skull bone got fractured which is apparent from postmortem report. The force by which that heavy sharp cutting weapon was used by the appellant now again become apparent. Considering all these aspect of the matter, postmortem report, inquest report, evidence of Doctor, evidence of P.W.4 and the fardbayan, we do not agree to accept the submission advanced by learned Counsel for the defence that this case would come within the purview of Section 304 part I of the I.P.C. and we out rightly reject that the occurrence does not come within any exception of Section 300 of the I.P.C. 7. In the result, we do not find any merit in this appeal and we are not inclined to interfere with the finding of the Trial Court. Accordingly, the impugned judgment of conviction and sentence dated 10.04.2007 & 11.04.2007 respectively passed by the Addl. Sessions Judge, Palamau at Daltonganj in connection with S.T.No.265/2004 is hereby upheld. 8. The appeal stands dismissed. Appeal dismissed.