JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal is directed against the judgment dated 25.02.2013 passed by the Additional Sessions Judge No. 3, Beawar, District Ajmer in Sessions Case No. 64/2012 by which accused-appellants have been convicted for offence u/s. 302 IPC and sentenced to undergo imprisonment for life with a fine of Rs. 5,000 each and in default whereof to further undergo simple imprisonment of six months each. 2. Complainant Bharat Singh (PW1) lodged a written report Ex. P.2 at Police Station, Masuda to the effect that there is a ‘bada’ situated in Village Mayla, the way of which was obstructed by Mukesh Kumar and Raju by putting bunch of bushes. On 25.5.2010 at about 12.00 noon when Braj Raj Singh came to remove them, these two accused came with ‘kulhadi’ and ‘sariya’ and inflicted blows thereof on his brother, due to which his brother sustained grievous injury. He (informant), Kamlesh Singh, Devendra Pratap Singh and others came for his rescue and took him to the Police Station and registered the report. 3. On the basis of aforesaid report, the police registered FIR No. 53/2010 for offence under Sections 307, 323, 341/34 IPC at Police Station, Masuda and investigation commenced. Brij Raj Singh succumbed to the injuries. Accordingly, the case was converted to the offence under Section 302 IPC. During investigation, necessary memos were drawn, statements of witnesses were recorded, accused persons were arrested and weapon of offence were recovered. After collecting necessary evidence challan was filed against accused-appellants. In due course, the case came up for trial before the learned Additional Sessions Judge F.T. No. 1, Beawar and same was transferred to the Court of Additional Sessions Judge, No. 3 Beawar District Ajmer. Charges under Sections 307, 341, 323, 302/34 IPC were framed against the accused who denied the charges and claimed trial. The prosecution in support of its case examined as many as 20 witnesses and got exhibited 24 documents. The learned trial court recorded the statements of the accused under Section 313 Cr.P.C., who denied the allegations. Defence examined 2 witnesses and got exhibited 12 documents. The learned trial court heard the arguments and vide its judgment dated 25.02.2013 convicted the sentenced the appellants as mentioned above. 4. The learned trial court recorded the statements of the accused under Section 313 Cr.P.C., who denied the allegations. Defence examined 2 witnesses and got exhibited 12 documents. The learned trial court heard the arguments and vide its judgment dated 25.02.2013 convicted the sentenced the appellants as mentioned above. 4. Shri Jai Raj Tantia, learned counsel for the accused-appellants has argued that the findings arrived at by the learned trial court and the conviction and sentence passed are patently illegal and perverse to the facts on record. The prosecution has miserably failed to establish the guilt of the accused appellant beyond reasonable doubt, hence the appellant are entitled to get acquittal from the charges framed against them. It is contended that the learned trial court committed serious illegality by placing reliance upon the testimony of the Suwa Lal (PW9), Amar Singh (PW11) and Laburam (PW18). All these witnesses as per their statement as also as per the statement of Mool Singh (PW3) appeared at the place of occurrence subsequent to the alleged occurrence. Therefore, these witnesses could be relied upon as eye witnesses. 5. It is contended that the learned trial court has further failed to consider that while appreciating the evidence in a criminal case, the court should keep in view the two cardinal principles i.e. the guilt against the accused must be proved beyond reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by him at it lay on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of probability in favour of the pleas taken by him. It is contended that there is great difference in the statement of prosecution recorded under Section 161 Cr.P.C. and the court statement. In such circumstances, the prosecution had made improvements in their court statements. There are material contradictions and inconsistencies in the statements of the witnesses who told lie on several important points, as such no reliance can be placed on their testimony. 6. Learned counsel submitted that there is no credible evidence to connect the appellants with the alleged crime. It is submitted that witnesses are highly interested and partisan witnesses and as such no reliance ought to have been placed on their statements. The prosecution has miserably failed to prove that the appellant had any motive to murder the deceased Brijraj Singh. Learned counsel submitted that there is no credible evidence to connect the appellants with the alleged crime. It is submitted that witnesses are highly interested and partisan witnesses and as such no reliance ought to have been placed on their statements. The prosecution has miserably failed to prove that the appellant had any motive to murder the deceased Brijraj Singh. Since it is a case of single injury, it can be inferred that the appellants had no intention to commit murder of the deceased; at the most he can be clothed with knowledge. It is submitted that the statements of the witnesses do not corroborate the evidence on whose instance FIR was registered. It is amply clear that none of the witness whose testimony has been relied upon by the trial court were eye witnesses of the occurrence. The FIR was lodged after the inordinate delay which makes it to be highly dubious. No witness had seen the incident and testimony of witnesses suffers from numerous in-congruencies, which renders it to be highly doubtful. The prosecution has deliberately dissuaded itself from producing independent witnesses of the vicinity, which led to draw an adverse inference against the prosecution. In such situation, the testimony of witnesses requires close and stringent scrutiny. 7. Contention of the learned counsel for the accused-appellants is that the allegation has been made in the FIR that co-accused Mukesh was having ‘kulhadi’ and the accused-appellant Raju was wielding the ‘iron rod’ but it was Mukesh, who inflicted two blows of ‘kulhadi’ on the head of deceased. Informant Bharat Singh (PW1) in his court statement has however stated that Mukesh had ‘kulhadi’ with which he inflicted blow on the head of deceased-Brij Raj Singh. As regards the accused-appellant Raju, it is alleged by him that he was having an ‘iron rod’ and he also caused blows to the deceased. Mool Singh alias Kamlesh Singh (PW3) has however stated that while he saw Mukesh inflicting blow of ‘kulhadi’ on the head of deceased-Braj Raj Singh but he has stated that accused-appellant Raju had a ‘lakdi’ and was standing there. He has not assigned any overt act to the present accused appellant Raju. Mool Singh alias Kamlesh Singh (PW3) has however stated that while he saw Mukesh inflicting blow of ‘kulhadi’ on the head of deceased-Braj Raj Singh but he has stated that accused-appellant Raju had a ‘lakdi’ and was standing there. He has not assigned any overt act to the present accused appellant Raju. Devendra Pratap Singh (PW7) has though alleged that Mukesh had ‘kulhadi’ and he saw him inflicting a ‘kulhadi’ blow on the person of deceased-Braj Raj Singh but he has not assigned any overt act to accused appellant Raju though this witness has stated that he had an ‘iron rod’. While ‘kulhadi’ has been recovered at the instance of co-accused Mukesh and there is only one injury by sharp edged weapon on the head of deceased-Braj Raj Singh as proved vide injury report (Ex. P.14) and post-mortem report (Ex. P.24) but no recovery of any weapon has been made at the instance of accused appellant Raju nor is there any other injury on the person of the deceased. Cause of death as per the opinion of the post-mortem report was the sole head injury. 8. Alternatively, learned counsel for the accused-appellants has argued that in the present case as per the own showing of the prosecution witnesses dispute occurred on right to way of a ‘bada’ as a result of which, a sudden fight ensued between the accused-party and the complainant party. In that process, the deceased allegedly sustained a blow on his head from the accused Mukesh. The accused-appellant Mukesh by not repeating the blow has not taken any undue advantage and has not acted in a cruel or unusual manner. The accused may be taken to have caused the injury while he was deprived of the power of self control by grave and sudden provocation or in a sudden fight at the spur of moment. The case of accused-appellant Mukesh thus would fall either in exception (1) or in exception (4) to Section 300 IPC and would be culpable homicide not amounting to murder punishable in Part-I of Section 304 IPC. Learned counsel in support of his arguments has relied on the judgment of this Court dated 15.02.2017 passed in D.B. Criminal Appeal No. 973/2012, Sheru Khan v. State of Rajasthan. 9. Learned counsel in support of his arguments has relied on the judgment of this Court dated 15.02.2017 passed in D.B. Criminal Appeal No. 973/2012, Sheru Khan v. State of Rajasthan. 9. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and argued that the guilt of the accused-appellants has been proved beyond reasonable doubt by testimony of prosecution witnesses, who have consistently proved that the accused appellants inflicted ‘kulhadi’ and ‘iron rod’ respectively on the head of the deceased without any provocation or without any sudden fight or quarrel between them and, therefore, case of accused-appellants can neither fall in exception (1), nor in exception (4) to Section 300 IPC so as to bring the offence within the purview of Part-I of Section 304 IPC as has been argued by learned counsel for the accused-appellants. 10. We have given our anxious consideration to the rival submissions and perused the material on record. 11. The written report submitted by informant Bharat Singh clearly reveals that there was dispute between the parties as to the right of way to the ‘bada’ of complainant party. It is alleged that accused had obstructed the way by putting bushes/stones. The incident took place in the noon of 25th May, 2010. As per the allegation in the FIR when Braj Raj Singh tried to remove those obstructions, the accused Mukesh and Raju started beating him by ‘kulhadi’ and ‘sariya’ (iron rod). An injury was caused on his head by ‘kulhadi’. On hearing hue and cry, the informant Bharat Singh, Kamlesh Singh, Devendra Singh and other came to his rescue. The injured Braj Raj Singh was taken to the hospital. The FIR was initially lodged for offence u/s. 307 IPC, apart from Section 323, 341/34 IPC. The injured Braj Raj Singh on the following day succumbed to his injuries. His MLR (Ex. D1) indicates that only one head injury was found on his person, the dimension of which was 7 cm × 1 cm × 1 cm on the left frontal side of scalp, but his postmortem report indicates that this injury resulted into fracture of fronto parietal bone. Dr. Satyendra Pancholi (PW14) has proved the medico legal report of the deceased (Ex. P15). Dr. R.K. Mathur (PW20), who was member of the Medical Board has proved the postmortem report (Ex. P24). According to him, length of the said fracture was 5 cm. Dr. Satyendra Pancholi (PW14) has proved the medico legal report of the deceased (Ex. P15). Dr. R.K. Mathur (PW20), who was member of the Medical Board has proved the postmortem report (Ex. P24). According to him, length of the said fracture was 5 cm. Although the prosecution has produced certain other witnesses also as eye witnesses, who have turned hostile and not supported the version of the prosecution, but statements of three witnesses in particular have been relied by the learned trial court who are Bharat Singh (PW1), Mool Singh (PW3) and Devendra Pratap (PW7). Ismile (PW6) and Babu (PW8) on their showing are not eye witness and reached the place of occurrence when the deceased was lying in the seriously injured condition after the incident was over and the accused had fled away there from. It is significant to notice that Bharat Singh (PW1) did not name any person as eye witness in the written report, but nonetheless, he himself is an eye witness along with other two eye witnesses namely; Mool Singh (PW3) and Devendra Pratap (PW7), who have been relied by the learned trial court. We have to therefore analyse evidence of these three eye witnesses referred to above to find out whether the conviction of both the accused-appellants for the offence of murder can be sustained. 12. Bharat Singh (PW1) in his Court statement has alleged that accused-appellant Mukesh and Raju had obstructed the way on the fateful day at about 12.00 in the noon. When he heard the sound of crying of his brother Braj Raj Singh, he reached place of incident. He saw Mukesh inflicting a ‘kulhadi’ blows on the head of his brother and Raju, who had iron rod, also inflicted blows to his brother. His brother was profusely bleeding from his head. Mool Singh @ Kamlesh Singh and Devendra Pratap Singh were also there and tried to save him. They immediately took Devendra Pratap Singh in a seriously injured condition to the Masuda Police Station and gave the written report (Ex. P1) and thereafter to the hospital at Masuda in a maruti car. Doctor after providing first aid referred Braj Raj Singh to Jawahar Lal Nehru Hospital, Ajmer where he was declared brought dead. The inquest of deceased is Ex. P3, site plan is Ex. P6 and the proceedings/compromise of the Gram Panchayat (Ex. P7) with regard to dispute between the parties. Doctor after providing first aid referred Braj Raj Singh to Jawahar Lal Nehru Hospital, Ajmer where he was declared brought dead. The inquest of deceased is Ex. P3, site plan is Ex. P6 and the proceedings/compromise of the Gram Panchayat (Ex. P7) with regard to dispute between the parties. In cross examination, this witness has stated that his deceased brother had one head injury and another injury on the back and few other injuries. But when confronted with his written report (Ex. P1), he failed to explain why this was not stated in the written report that Mukesh inflicted head injury by ‘kulhadi’ and Raju inflicted injury by iron rod on the back of the deceased. 13. Mool Singh (PW3) has in his court statement stated that he was present in the house of Bharat Singh on the day of incident around 12 in the noon. He saw Braj Raj Singh, the deceased going towards their ‘bada’. After 15-20 minutes, he heard the sound of cry. He along with Bharat Singh and Devendra Pratap immediately rushed in that direction. They saw Mukesh and Raju quarreling with Braj Raj singh. Mukesh inflicted ‘kulhadi’ blow on the body of Braj Raj Singh. Raju was also standing there with a ‘lakdi’ in his hand. It is thus clear that this witness has attributed active role to only accused Mukesh of inflicting ‘kulhadi’ blow on the head of deceased, but has merely shown presence of Raju and that too with ‘lakdi’ and not iron rod, as has been alleged by Bharat Singh (PW1) and Mool Singh (PW3). 14. Devendra Pratap (PW7) is yet another eye witness relied by learned trial court has also similarly stated that he along with his father Bharat Singh and Kamlesh Singh was present in the house around 12 in the noon on 25th May, 2010. When they heard the sound of cry of Braj Raj Singh, they rushed in that direction of the ‘bada’. They saw Mukesh there with a ‘kulhadi’ and Raju with an iron rod. A ‘kulhadi’ blow was inflicted on the head of Braj Raj Singh. When they cried, the accused fled away from there. Then they took Braj Raj Singh in maruti car to the Police Station Masuda and with a Constable to hospital at Masuda where the Doctors had referred him to Higher Centre at Ajmer. A ‘kulhadi’ blow was inflicted on the head of Braj Raj Singh. When they cried, the accused fled away from there. Then they took Braj Raj Singh in maruti car to the Police Station Masuda and with a Constable to hospital at Masuda where the Doctors had referred him to Higher Centre at Ajmer. Therefore, they took him to Jawahar Lal Nehru Hospital at Ajmer where the Doctors declared him brought dead. Even the testimony of this witness clearly show that as far as role of accused Mukesh is concerned, it is quite clear and categorical. He had ‘kulhadi’ and inflicted a blow thereof to the deceased Braj Raj Singh, but this witness has not attributed any active role to Raju except that he was having an iron rod. 15. Ismile (PW6) though cited as an eye witness, but he has stated that when he reached the place of incident after hearing the hue and cry, he saw Braj Raj Singh lying on the kachcha way. He was bleeding from his head. Bharat Singh was trying to stop the bleed by pressing his hand on the grievous injury. Mool Singh was also present there. Bharat Singh said that Mukesh has inflicted a ‘kulhadi’ blow on the head of Braj Raj Singh. Then they took Braj Raj Singh to hospital at Masuda. This witness cannot be accepted as an eye witness as he on his own showing reached the place of occurrence after the incident was over. All that he is saying is that Bhrat Singh told him that Mukesh inflicted a ‘kulhadi’ blow on the person of the deceased. Similarly, Amar Singh (PW11) is also not an eye witness. He has stated that the dispute with regard to the way to the ‘bada’ of the complainant party was persisting between both the parties for last 17-18 years. Panchu had obstructed the way to ‘bada’ about 17-18 years ago. However, panchayat was assembled at the request of Bharat Singh. He was also present in that meeting. Panchu at that time assured in the presence of panchas that he would open the way within one month, but Bharat Singh did not agree and insisted for opening of way within 15 days. Panchu finally agreed to do so and actually opened the way within 15 days. The written proceeding of the panchayat was prepared, which was Ex. Panchu at that time assured in the presence of panchas that he would open the way within one month, but Bharat Singh did not agree and insisted for opening of way within 15 days. Panchu finally agreed to do so and actually opened the way within 15 days. The written proceeding of the panchayat was prepared, which was Ex. P7, but Panchu and his family members again obstructed the way about one and half years ago. Brij Raj Singh thereupon requested villagers to assemble in the panchayat. They again tried to persuade Panchu, but for the first time, Panchu, who did not agree to open the way, stated that there was no way existing to have access to the land in dispute. The written proceedings of Panchayat was (Ex. D3). Then a quarrel between Brij Raj Singh and Raju & Mukesh took place on the next day over the disputed way. 16. The Investigating Officer Banshi Lal (PW19) recovered blood stained ‘kulhadi’ (Ex. P9) at the instance of accused-appellant Mukesh pursuant to information given by him under Section 27 of the Evidence Act vide Ex. P17. The Investigating Officer has also recovered the t-shirt of the deceased vide memo Ex. P5 and simple pieces of broken pot (matka) and blood smeared pieces of broken pot (matka) vide Ex. P7 and Ex. P8. All these articles were sent to FSL through Bharat Singh (PW1), who has proved the receipt Ex. P21. All these articles were sealed and marked as packets A, B, C and D, which according to the report of the FSL (Ex. P18) were found intact and seal impressions thereon tallied with forwarded specimen seal. FSL report shows that human blood was found on the t-shirt of the deceased as also on the piece of pot (matki) and the ‘kulhadi’. There was presence of human blood on ‘kulhadi’, which was recovered at the instance of accused-appellant Mukesh. P18) were found intact and seal impressions thereon tallied with forwarded specimen seal. FSL report shows that human blood was found on the t-shirt of the deceased as also on the piece of pot (matki) and the ‘kulhadi’. There was presence of human blood on ‘kulhadi’, which was recovered at the instance of accused-appellant Mukesh. The report of FSL thus provides corroboration to the testimony of three eye witnesses namely; Bharat Singh (PW1), Mool Singh (PW3) and Devendra Pratap (PW7) that it was this ‘kulhadi’, which was used by Mukesh for causing injury on the head of deceased, but there is no such corroborative evidence as far as allegation against accused-appellant Raju is concerned as no recovery of any weapon of offence whatsoever was made from him, whether ‘lakdi’ as alleged by Mool Singh (PW3) or iron rod as alleged by Bharat Singh (PW1) and Devendra Pratap (PW7). Three of these two witnesses namely; Mool Singh (PW3) and Devendra Pratap (PW7) have not attributed an active role to the accused-appellant Raju, but have merely shown his presence on the place of occurrence. They are not in unison with each other as to what weapon, he was having. While Mool Singh has alleged that he was having ‘lakdi’, Devendra Pratap Singh has alleged that he had iron rod. Neither of the fact has been proved as no weapon at all has been recovered at his instance. Even though it may have been a fact that there was a dispute between both the parties with regard to the way to the ‘bada’ of the complainant but as far as role of the accused-appellant Raju is concerned, the evidence on record falls short of proof beyond reasonable doubt against him, thus entitling him to the benefit of doubt. We are inclined to extend to him that benefit. This however cannot be said true of Mukesh against whom, not only the evidence from the inception till the end is consistent, but also the weapon of offence too has been recovered at his instance, which has been found to contain human blood, which was also found on the T-shirt of the deceased, thus the allegation finds sufficient corroboration proving his guilt beyond reasonable doubt. 17. 17. The Supreme Court in State of U.P. v. Ramesh Prasad Mishra, (1996) 10 SCC 360 : AIR 1996 SC 2766 observed that evidence of hostile witness could not be totally rejected if spoken in favour of the prosecution or the accused, but the same can be subjected to close scrutiny and the portion of the evidence, which is consistent with the case of the prosecution or defence, may be accepted. The Supreme Court in Rajender Singh v. State of Haryana, (2009) 11 SCC 382 held that even if a witness refused to have given statement to the police under Section 161 Cr.P.C. and when this witness is confronted with the previous statement under Section 161 Cr.P.C. and he does not offer any explanation, that portion becomes admissible in evidence as per the proviso attached to Section 162(1) Cr.P.C. 18. The Supreme Court in Prithi v. State of Haryana, (2010) 8 SCC 536 , held that even if a witness is declared hostile and is allowed to be cross-examined by the Public Prosecutor with the permission of court, his evidence remains admissible and there is no legal bar to record a conviction upon his testimony, if corroborated by other reliable evidence. In Akhtar v. State of Uttaranchal, (2009) 13 SCC 722 , it was held by the Supreme Court that evidence of hostile witnesses can be relied upon to corroborate date, time and place of occurrence. In Jodhraj Singh v. State of Rajasthan, (2007) 15 SCC 294 , it was held by the Supreme Court that only because a witness, for one reason or the other, has to some extent, resiled from his earlier statement, that by itself may not be sufficient to discard the prosecution case in its entirety. Keeping in view the materials available on record, it is permissible for a court of law to rely upon a part of the testimony of the witness who has been declared hostile. 19. The Supreme Court in Attar Singh v. State of Maharashtra in Criminal Appeal No. 1091/2010 decided on 14/12/2012 held in para 13 of the judgment, as under:— “13. We have meticulously considered the arguments advanced on this vital aspect of the matter on which the conviction and sentence imposed on the appellant is based. 19. The Supreme Court in Attar Singh v. State of Maharashtra in Criminal Appeal No. 1091/2010 decided on 14/12/2012 held in para 13 of the judgment, as under:— “13. We have meticulously considered the arguments advanced on this vital aspect of the matter on which the conviction and sentence imposed on the appellant is based. This compels us to consider as to whether the conviction and sentence recorded on the basis of the testimony of the witness who has been declared hostile could be relied upon for recording conviction of the accused-appellant. But it was difficult to overlook the relevance and value of the evidence of even a hostile witness while considering as to what extent their evidence could be allowed to be relied upon and used by the prosecution. It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in to as it is well-settled by a catena of decisions that the Court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in to and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the view expressed by this court in the case of Syed Akbar v. State of Karnataka reported in (1980) 1 SCC 30 : AIR 1979 SC 1848 whereby the learned Judges of the Supreme Court reversed the judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety. Similarly, other High Courts in the matter of Gulshan Kumar v. State, (1993) Crl.L.J. 1525 as also Kunwar v. State of U.P., (1993) Crl.L.J. 3421 as also Haneefa v. State, (1993) Crl.L.J. 2125 have held that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. Similarly, other High Courts in the matter of Gulshan Kumar v. State, (1993) Crl.L.J. 1525 as also Kunwar v. State of U.P., (1993) Crl.L.J. 3421 as also Haneefa v. State, (1993) Crl.L.J. 2125 have held that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. So also, in the matter of State of U.P. v. Chet Ram reported in (1989) 2 SCC 425 : AIR 1989 SC 1543 : (1989) Crl.L.J. 1785; it was held that if some portion of the statement of the hostile witness inspires confidence it can be relied upon and the witness cannot be termed as wholly unreliable. It was further categorically held in the case of Shatrughan v. State of M.P., (1993) Crl.L.J. 3120 that hostile witness is not necessarily a false witness. Granting of a permission by the Court to cross-examine his own witness does not amount to adjudication by the Court as to the veracity of a witness. It only means a declaration that the witness is adverse or unfriendly to the party calling him and not that the witness is untruthful. This was the view expressed by this Court in the matter of Sat Paul v. Delhi Administration, (1976) 1 SCC 727 : AIR 1976 SC 294 . Thus, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the Court must see the relative effect of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused.” 20. The Supreme Court in Ashok v. State of Maharashtra, (2015) 4 SCC 393 held that initial burden of proof is always on prosecution to adduce sufficient evidence pointing towards guilt of accused. The Supreme Court in Ashok v. State of Maharashtra, (2015) 4 SCC 393 held that initial burden of proof is always on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with the deceased, the prosecution is exempted to prove exact happening of incident as the accused himself would have special knowledge of incident and thus, would have burden of proof as per Section 106 of the Evidence Act. But, last seen together itself is not conclusive proof but along with other circumstances surrounding the incident, like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from accused, etc. non-explanation of death of deceased, etc. may lead to a presumption of guilt of accused. In that case, no other clinching evidence was produced by the prosecution in support of the last seen together theory so as to shift burden of proof onto accused. 21. The Supreme Court in Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 was dealing with a case where last seen together was the only circumstantial evidence against the accused. It was held that circumstance of last seen together does not by itself necessarily lead to inference that it was accused, who committed crime. There must be something more establishing connection between accused and crime, that points to guilt of accused and none less. Mere non-explanation of being last seen together with deceased person on part of accused, by itself cannot lead to proof of guilt against him. Conviction of the accused-appellant therein was reversed. 22. The Supreme Court in State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 held that presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule of law of evidence that a fact, otherwise doubtful, may be inferred from certain other proved facts. While inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches to a logical conclusion as the most probable position. The above principle has gained legislative recognition in India, when Section 114 was incorporated in the Evidence Act. While inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches to a logical conclusion as the most probable position. The above principle has gained legislative recognition in India, when Section 114 was incorporated in the Evidence Act. It empowers the court to presume the existence of any fact, which it thinks likely to have happened. In that process, the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. Our this view finds support from the law laid down by the Supreme Court in Murlidhar v. State of Rajasthan, (2005) 11 SCC 133 : AIR 2005 SC 2345 . In that case, the prosecution sought to prove its case by producing eyewitnesses. When eyewitnesses were not believed, the prosecution sought to invoke Section 106 of the Evidence Act and argued that it was for accused to prove the facts especially within their knowledge. Rejecting such argument, the Supreme Court in Para 22 of the judgment, observed as under:— “In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof u/Sec. 106 of the Evidence Act to the case. As pointed out in Mir Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Sec. 106 of the Evidence Act would apply when the facts are “especially within the knowledge of the accused” and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, “especially within the knowledge of the accused”. In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eye witness. Testimony of Ram Ratan (PW-7) and Isro (PW-10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. On the other hand, the prosecution proceeded on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eye witness. Testimony of Ram Ratan (PW-7) and Isro (PW-10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW-10), the father of Ramlal. The evidence of Govind (PW-13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW-5), Ram Ratan (PW-7), Isro (PW-10) and Govind (PW-13) are wholly unreliable as their evidence is replete with contradiction and inherent improbabilities.” 23. Coming now to the alternate argument of the learned counsel for the defence that the accused should at the maximum be convicted for offence under Section 304 Part-I IPC as his case would fall in exception (1) to Section 300 of the IPC because it was the complainant party who gave provocation to the accused for the offence as they subjected the mother, father and other family members of the family of the accused to beating. Reference in this connection has been made to the injury reports of the members of the complainant party. As per the injury report of wife of Mukesh (Ex. D5), she suffered one injury on lower back of left leg. Ex. D6 is the injury report of Pukhraj S/o Panchu Lal, who had one abrasion at the bottom end of nose on the right side and complain of pain on lower back. Ex. D7 is the injury report of Raju S/o Panchu Lal, who had complain of pain on the forehead as also ankle of left arm. Ex. D8 is the injury report of Mukesh S/o Panchu Lal, who had one abrasion on the left shoulder and complain of pain on right thigh and left shoulder and forehead. Ex. D7 is the injury report of Raju S/o Panchu Lal, who had complain of pain on the forehead as also ankle of left arm. Ex. D8 is the injury report of Mukesh S/o Panchu Lal, who had one abrasion on the left shoulder and complain of pain on right thigh and left shoulder and forehead. Ex. D9 is the injury report of Rameshwar S/o Panchu Lal, who had complain of pain in left leg lower back. In this connection, learned counsel has also referred to the defence set up by the accused in their examination under Section 313 Cr.P.C. and the cross FIR (Ex. D4). When we look at the first information report (Ex. D4), it becomes clear that it is not, in fact, a cross FIR as has been sought to be made out by the defence. It is an FIR in regard to the incident of ‘marpeet’, which took place with the members of the accused-party allegedly at the hands of the complainant party. As per the averments of the FIR, it was registered by Panchu Lal at 4.15 pm on 25th May, 2010, but the incident with regard to the aforesaid FIR as per the informant took place at 5.30 pm on the previous day i.e. 24.5.2010. 24. Even if we look at the defence version of the accused under Sec. 313 Cr.P.C., it becomes clear that in that also the accused has set up a case that members of the complainant party subjected mother and father of the accused-appellant and other members of their family to beating on the previous day i.e. on 24.5.2010 when both the accused had gone to Ajmer for earning their livelihood. There they received telephone call from his younger brother Kailash at about 7-8 pm, thereafter he returned back to their village and on the following day, they lodged the written report. When they returned back to their home, members of the complainant party attacked them. Braj Raj Singh and Bharat Singh came and attacked them. Braj Raj Singh fell in the furnace, which is used for giving heat to the mud pots and accidentally sustained injuries. When they returned back to their home, members of the complainant party attacked them. Braj Raj Singh and Bharat Singh came and attacked them. Braj Raj Singh fell in the furnace, which is used for giving heat to the mud pots and accidentally sustained injuries. The defence has tried to develop an argument with the help of this that the present case if not covered by exception (1) to Sec. 300 of IPC, it should be taken to have been covered by exception (4) as the incident had taken place on a sudden fight at the spur of moment in the heat of passion and the accused having inflicted only one injury on the head of the deceased, did not take any undue advantage inasmuch he did not repeat the injury. We are not inclined to uphold either of the contentions as far as exception (1) to Sec. 300 is concerned. We hardly find any justification for upholding the argument as there is no evidence on record that any grave or sudden provocation was given by the complainant party to the accused in the present case. The defence wanted to built the argument that the incident which had taken place one day before the incident in which Braj Raj Singh was put to death by the accused gave grave provocation to the accused-appellants, but any incident of previous day cannot be said to have given any grave or sudden provocation to the accused. As already stated in exception (1) to Sec. 300 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 but as per proviso to exception (1) to Sec. 300, there should not be voluntary provocation. The grave and sudden provocation is a question of fact and this question of fact in the present case cannot be held to have proved that there was any grave or sudden provocation, which can be said to be grave or sudden enough as two incidents are separated by one complete day. The grave and sudden provocation is a question of fact and this question of fact in the present case cannot be held to have proved that there was any grave or sudden provocation, which can be said to be grave or sudden enough as two incidents are separated by one complete day. Similarly, we also do not find any ingredients of exception (4) to Sec. 300 as there is no evidence at all on record that the incident in the present case had taken place suddenly, as a result of sudden fight in a heat of passion on a sudden quarrel, which is the first pre-requisites for bringing any case within the purview of exception (4) accompanied by another pre-requisite that the accused should not have obtained undue advantage or acted in a cruel or unusual manner. Even if, therefore, the accused in the present case has caused one single injury on the head of the deceased and not repeated the same, the other ingredient being missing namely; that there is no evidence to show that the incident was result of sudden fight in a heat of passion on sudden quarrel, thus exception (4) to Sec. 300 IPC would not be attracted in the present case. The injury inflicted by accused Mukesh on the head of the deceased was posed on a vital part of the body i.e. head and the weapon that was used for causing injury was also a deadly weapon being ‘kulhadi’, this injury resulted in fracture of left frontal side of scalp. The accused had full knowledge and also the intention of the fact that the injury that he is causing would certainly result in death of Braj Raj Singh. We, therefore, do not find any justification for altering the conviction as far as accused-appellant Mukesh is concerned from Sec. 302 to Sec. 304 Part-I IPC. 25. In the result, the present appeal in so far as accused-appellant Mukesh is concerned fails and is hereby dismissed. However, the appeal filed by the accused-appellant Raju deserves to succeed and is hereby allowed. Accused-appellant Raju is acquitted of all the charges. He is on bail, therefore, his bail bonds are discharged. He need not surrender and is set at liberty forthwith. 26. Keeping, however, in view the provisions of Sec. 437-A Cr.P.C., accused-appellant Raju is directed to forthwith furnish a personal bond in the sum of Rs. Accused-appellant Raju is acquitted of all the charges. He is on bail, therefore, his bail bonds are discharged. He need not surrender and is set at liberty forthwith. 26. Keeping, however, in view the provisions of Sec. 437-A Cr.P.C., accused-appellant Raju is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.